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DOMA Falls - What Now For FMLA & Other Employee Benefits?
By Kevin McLaughlin on July 5, 2013 at 6:43 PM

DOMA Struck DownIf you’re reading this blog, then it’s probably safe to assume that you heard about the Supreme Court’s decision that the Defense of Marriage Act (“DOMA”) is unconstitutional. And it’s probably also safe to assume that you’ve had friends and acquaintances weighing in with their thoughts on the decision on Facebook, LinkedIn and in other venues. Getting lost in the debate, however, is the impact this decision has on how employee benefits are administered.

Take FMLA leave, for example. Eligible employees are allowed to take leave to care for a family member, including a spouse. A spouse is defined as “a husband or wife as defined or recognized under State law for purposes of marriage...” While the text of the regulation suggests that applicable state law would govern the determination of who is a spouse, the Department of Labor followed DOMA before it was stricken, meaning that only opposite-sex spouses were recognized for FMLA purposes. With the fall of DOMA, same-sex spouses will now be able to take FMLA leave to care for one another if they live in a state that recognizes same-sex marriages. Interestingly, for same-sex spouses, the ability to use this federally mandated benefit will depend on where they live. We expect that the Department of Labor will issue guidance on this issue—stay tuned.

FMLA is just the tip of the iceberg, however. Benefit plan sponsors now face the issue of how to administer benefits for same-sex spouses. For instance, how should a plan administrator handle a same-sex couple who were married in a state that recognizes same-sex marriages, but live in a state that does not? Likewise, similar questions remain with respect to automatic beneficiary rights under benefit and retirement plans. Benefit plan administrators need to review their state laws, their own plan documents and ask the following questions:

  • Do we need to collect information about same-sex couples?
  • Do we need to send COBRA notices to same-sex couples?
  • For cafeteria plans, do we need to notify employees of family status change and special enrollment rights?
  • Should we suggest that participants review beneficiary designations?
  • Should we stop imputing income for health benefits and premium payments for same-sex couples?

We will be following these issues closely and updating you as the Department of Labor and other impacted agencies (such as the Internal Revenue Service) issue guidance on the questions discussed above. In the meantime, no matter your personal and political beliefs, the Court’s ruling will have a long-lasting impact on all HR and ERISA professionals.

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