The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.
Aside from being a major, major victory in human rights, what does this mean for the workplace?
Under DOMA, there was no recognition of same sex partnerships at the Federal level. This included pre-tax deductions for the employee’s portion of health insurance premiums. So even though a great many companies offered the availability of benefits to the employee for “domestic partner” coverage (quotes intentional), the employee was not able to take advantage of the same pre-tax benefits offered to those employees who were in an opposite sex relationship. Now that DOMA has been deemed unconstitutional, these employees in states that recognize gay marriage (or marriage as I like to call it), have the right to pre-tax benefits along with other financial benefits.
What does that mean? Essentially, when Americans get health care through their job, their employer pays part of the premium for that insurance plan. Many of those Americans may opt for a family plan that also covers their spouse. Under the current federal tax code, Americans can’t be taxed on the amount of money that their employer puts toward covering the cost of their spouse’s premium. But, while DOMA stood, the federal government couldn’t count same-sex couples as part of that rule. LGBT couples who were legally married ended up being taxed more for their health care than straight couples who were legally married. Now that DOMA is gone, some married same-sex couples won’t pay the federal government more for sharing the same health plan.
The other items of which HR should be aware are FMLA rights (not yet in place) and Green Card Sponsorship.
Emergency leave: Present law does not offer gay and lesbian employees time off from work to tend to a domestic partner or that partner’s family member, according to the Human Rights Campaign. But the guarantees provided by the Family and Medical Leave Act will soon become available to same-sex spouses.
Green cards and visas: There are an estimated 28,500 binational same-sex couples — meaning one partner is a U.S. citizen or permanent resident and one isn’t — but DOMA did not allow the former to petition for the latter to immigrate, according to the Williams Institute. But gays and lesbians may now lobby the federal government for green cards or visas for a non-American same-sex partner.
So, what does HR need to do now? The best thing to do is to speak with your insurance broker along with your payroll partner to ensure that the employees affected by this ruling have access to these benefits as soon as possible.
After all, these employees have already waited far, far, far too long.