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Same-sex marriage is now the law of the land in the United States. By a 5-4 vote, the Supreme Court ruled in Obergefell et al. v Hodges, No. 14-556, June 26, 2015, that it is unconstitutional for states to ban same-sex marriage. Although the ruling is not likely to end the debate between those who favor and those who oppose same-sex marriage, employers throughout the United States must now begin to treat same-sex marriages as they do heterosexual marriages.

Federal law does not expressly bar discrimination based on marital status (although many states prohibit such discrimination in the employment setting and in places of public accommodation.) Nevertheless, Employers should examine their employment manuals, employment policies, and employment benefits to be sure that they do not discriminate on the basis of a heterosexual versus same-sex marriage.

Employers will most especially want to examine their Family and Medical Leave Act (FMLA) policies and procedures. That Act accords covered employees 12 weeks of unpaid leave for the following purposes:

  • Birth of a child and the care of a newborn
  • Placement with the employee of a child for adoption or foster care and to care for a newly placed child
  • Care for an immediate family member with a serious health condition or when being deployed as a member of the military
  • When an employee is unable to work due to a serious health condition

Prior to the Obergefell ruling, only those employers having employees in states that recognized same-sex marriages needed to be concerned with the impact of FMLA on such relationships. The Court’s decision now implicates the Act for all covered employers and employees; especially the third item of coverage. Employers must train those administering their FMLA and other benefit plans to be aware of this new status. The Department of Labor previously issued a final rule allowing eligible employees to take FMLA leave to care for a same-sex spouse, regardless of whether the employee resided in a state that recognized same-sex marriages. That rule is a good starting place for educating those who administer FMLA benefits. Although it may take some time for states that have not previously recognized same-sex marriages to begin issuing marriage licenses to same-sex couples, a significant increase in such marriages must be anticipated and, therefore, employers should review their employment policies and practices now.

Although employers should review all of their policies and benefits that might be affected by the Obergefell decision, they will also want to pay special attention to ERISA plans and other benefits available under both the federal COBRA and state mini-Cobra statutes. As with spouses in a heterosexual marriage, those in a same-sex marriage also need to pay attention to benefit plan provisions, as many such plans default to a spouse as beneficiary. An employee in a same-sex marriage who wishes his or her benefits to go to someone other than their spouse will have to make a special designation.

The employment lawyers at Reger Rizzo & Darnall stand ready to assist our clients in assuring compliance under the Supreme Court’s holding. Please contact Robert Small, Partner in our Employment Practice Group at or via phone at 215.495.6541 with any questions you may have.