Hunton Employment & Labor Perspectives

As the national debate regarding rights for same sex couples continues, more and more states are granting marital rights to members of the same sex.  Although we are only in the second quarter of 2015, five states have either passed legislation or have high court rulings that expand the rights of same sex couples.  And, in the coming weeks, the U.S. Supreme Court will rule upon issues of marriage equality in Obergefell v. Hodges, eventually rendering a decision that may have significant impact on both federal and individual state laws.

Why does this matter to you?  Whether you employ individuals in one state or across the nation, the status of same sex couples may affect your business in a variety of ways. When the union of same sex couples is legally recognized, rights such as FMLA leave, insurance coverage, tax treatment and other company specific policies are expanded to cover individuals who were not covered under prior policies.

This can get confusing fast.  For example, the FMLA provides that covered employees can take up to 12 weeks of unpaid protected leave to provide care for a “spouse.” The question is – what is a “spouse” under the FMLA?  Under the previous legal landscape, same sex partners could not take advantage of this protected leave because they were not considered “spouses.” Then, the Department of Labor (the “DOL”) revised its definition of “spouse” to include same sex spouses if the state of residence recognized same sex marriages. However, on February 25, 2015, the DOL issued a Final Rule again revising the definition of “spouse” under the FMLA. The revised definition requires that couples who have entered into legal marriages be afforded FMLA rights. In other words, even if the state in which the same sex couple resides and works does not recognize same sex marriage, if the couple was married in a state whose laws do recognize same sex marriages, the qualified employee must be afforded FMLA coverage. Therefore, the employer must not only know the law on same sex marriage in the state in which the company operates, but also in the state in which the employer’s same sex employees were married.

Keeping track of the changing legal landscape of same sex marriage can be a challenge. Not only are more and more states creating laws to address the issue, but many states’ legal stand on same sex marriages can change within a period of weeks to months, depending on the status of court appeals.

2015 Recent Developments

Currently, 37 states have legalized same sex marriage, and 13 states ban same sex marriage.  Below are some of the highlights of the 2015 changes to same sex marriage law:

• January 6, 2015: Same sex marriage becomes legal in Florida.
• January 12, 2015: In South Dakota, a U.S. District Court ruled that the state’s ban on same sex marriage was unconstitutional.  Rosenbrahn v. Daugaard, No. 4:14-cv-04081-KES, (D. S.D. Jan. 12, 2015).
• January 23, 2015: In Alabama, a U.S. District Court held that the state’s same sex marriage ban was unconstitutional.  Searcy v. Strange, Civ. A. No. 14-0208-CG-N (S.D. Ala. Jan. 23, 2015)
• March 2, 2015: In Nebraska, a U.S. District Court held that the state’s ban on same sex marriage was unconstitutional. Waters v. Heineman, No. 8:14-cv-356 (D. Neb. Mar. 2, 2015).  *This ruling was later stayed by the 8th Circuit. Waters v. Ricketts, No. 15-1452, (8th Cir. Mar. 5, 2015).
• March 12, 2015: Utah passed a bill that extends anti-discrimination protection laws for housing and employment to cover sexual orientation and gender identity.
• April 28, 2015: In the case of Obergefell v. Hodges, the U.S. Supreme Court heard arguments on marriage equality cases from Tennessee, Kentucky, Michigan and Ohio. The Court’s ruling in this matter could change the national landscape of same sex laws regarding marriage and discrimination.