On June 24th, the New York legislature signed a bill allowing same-sex marriage. New York joins five other states that currently permit same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.
Complications arise for New York employers since Federal Law under Title VII does not recognize sexual orientation as a protected class. Many federally-based employment laws do not encompass or consider same-sex marriages.
Nonetheless, a number of states including New York have separately recognized sexual orientation as a protected class through legislation (NY Code Article 15: Human Rights Law).
So what is the impact of conflicting legislation on employer requirements? What should employers consider and prepare for going forward?
Update Policies to Reflect Marriage Bill
Employers need to consider whether their current non-discrimination policies are sufficient to prohibit discrimination against married same-sex couples.
Same-sex marriage falls under a number of protected classifications, including sexual orientation, gender, marital status, and religion.
If a supervisor treats an employee in a same-sex marriage in a discriminatory manner because he or she does not believe that the employee should be married, the supervisor is discriminating on the basis of marital status.
If the supervisor treats individuals in heterosexual marriages more favorably than those in same-sex marriages, then the supervisor is discriminating based on sexual orientation.
Understand Implication of Marriage Bill
Does the newly created law mean that employers must provide the same benefits to all employees’ spouses, whether they are in same-sex marriages or not?
As long as the employer treats all married employees (in same-sex relationships or not) equally, there is no marital status discrimination.
Employers should be familiar with how the marriage bill applies to same-sex couples:
Health Insurance
Your company’s health plan may already permit coverage for same-sex partners. A marriage would be treated as a qualifying life event. This would entitle the employee to add their spouse mid-year, outside of the open enrollment period.
However, the IRS does not recognize same-sex marriages. As a result, there is differential tax treatment of same-sex spouses. A same-sex spouse participating in a family coverage under a group health or dental plan is not entitled to a federal pretax deduction for the cost of the entire premium.
Continuation of Health Coverage (COBRA)
Same-sex couples, married or divorced, do not have an entitlement to COBRA for the non-employee same-sex spouse. This includes Social Security benefits and continued group health coverage. However, depending on your plan and provider, insurance companies may elect to provide continuing coverage nonetheless.
Employee Retirement Income Security Act (ERISA)
A same-sex spouse will not be recognized under an ERISA-based plan to the extent the plan preempts state law. ERISA plan sponsors are not required to extend to same-sex couples the mandated qualified preretirement survivor annuity (QPSA) and the qualified joint and survivor annuity (QJSA) at the employee’s retirement. A plan is permitted to offer both types of survivor benefits for same-sex spouses. However, doing so carries federal tax implications.
Family & Medical Leave Act (FMLA)
FMLA permits employees to take up to 12 weeks of unpaid leave to care for a child, spouse, or parent with a serious health condition. Additionally, for the worker’s own serious health condition. An employee is not entitled under FMLA to take time off to care for his or her same-sex partner/spouse. However, FMLA does not prohibit an employer from electing to provide the time off anyway. Additionally, If an employer typically offers expansive FMLA leave, that employer should be careful not to deny leave to same-sex couples discriminatorily.
As same-sex marriage becomes more common, employers must proactively address the related issues:
- Employers must ensure that their policies address discrimination of employees in a same-sex marriage. This can be done by notifying their employees that discrimination on the basis of same-sex marriage is prohibited.
- Employers should expand their discrimination and harassment training. It should encompass not just sexual orientation and marital status discrimination, but also same-sex marriage discrimination.
- Employers should be prepared to address the benefit issues raised by same-sex marriage.
- Employers who understand the implications of same-sex marriage will be more apt to effectively navigate the emerging employment law issues it presents.
