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The Effect of DOMA’s Fall on Employment Law

flagToday, the U.S. Supreme Court ruled that the Defense Against Marriage Act is unconstitutional. This has some employment law implications. In states which recognize marriage equality, same sex spouses will have more rights.

Let’s look at the FMLA first.

The Family Medical Leave Act provides medical leave to employees to care for themselves or a sick family member, including a spouse.  This is what the Department of Labor website currently states (I assume this will change very soon):

“Spouse” has a specific definition under the FMLA. Spouse means a husband or wife as defined or recognized under state law for the purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.

However, because the FMLA is a federal law, the federal definitions of “marriage” and “spouse” as established under the Defense of Marriage Act (DOMA) apply. The DOMA defines “marriage” as only a legal union between one man and one woman as husband and wife and defines “spouse” as only a person of the opposite sex who is a husband or wife.

It seems clear that now, without DOMA, we look to the law of the state to determine who a “spouse” is. If two women marry in New York, one can now seek FMLA leave to care for the other.

It is less clear what would happen if those two women married in New York, moved to Florida, and then one sought FMLA leave to care for the other. Florida’s has a constitutional amendment which reads: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” The Full Faith and Credit Clause in the U.S. Constitution requires states to recognize the laws and judgments of other states. So, without DOMA, would this couple, legally married in New York, be entitled to FMLA leave in Florida?

Now, let’s turn to ERISA.

The Employee Retirement Income Security Act is a federal law requiring minimum standards for employer-provided benefits. It does not require employers to offer certain benefits, but sets standards if they do.

ERISA provides many rights to “spouses” such as survivor benefits (such as Qualified Joint and Survivor Annuities and Qualified Pre-retirement Survivor Annuities) and health benefits (including COBRA benefits and flexible spending account/health savings accounts).

DOMA led to different tax implications for same-sex couples as compared to opposite-sex couples. For example, with DOMA, spouses in opposite-sex marriages could access health insurance benefits without tax penalties under the Internal Revenue Code. But a same sex spouse would be taxed.

Now, without DOMA, in a state which has marriage equality, a spouse in a same-sex marriage will be entitled to the same tax-free benefits and the same survival benefits as a spouse in an opposite-sex marriage. Again, it is unclear what would happen to those women who were legally married in New York and subsequently moved to Florida, where there is no gay marriage. I suspect this will be the next big legal battle in the marriage equality movement.

One final note, this may also have implications with respect to who is defined as a “parent” or a “dependent” under these acts. It will certainly be interesting to see the effects of DOMA’s unconstitutionality in the employment law realm.


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