US Supreme Court’s Same-Sex Rulings Featured in New Podcast

In a new XpertHR podcast, key members of our US editorial team discuss the impact on HR of the historic US Supreme Court ruling in United States v. Windsor to strike down  Section 3 of the federal Defense of Marriage Act (DOMA), which had defined marriage as being between one man and one woman. The June 27 Windsor decision affects the application of more than 1,000 federal laws but leaves many questions unanswered for employers.

Melissa Burdorf, a former in-house counsel and employment attorney, addresses how the Court’s holding affects same-sex married couples under the Family and Medical Leave Act (FMLA). Tracy Morley, who leads our coverage of US health care benefits news, tackles the multitude of benefit plan issues raised by the ruling.

And while taxes are a subject that can make many people cringe, Rena Pirsos gamely breaks down some tax ramifications that simply cannot be ignored. Here are three takeaway points from the podcast. For the rest, you’ll simply have to give it a listen.

1. The (Employment) Tax Man Cometh

An important question in the aftermath of the Supreme Court’s decision to strike down DOMA’s definition of “spouse” is whether the Internal Revenue Service will apply the new definition retroactively. If the agency goes the retroactive route, Pirsos says, “Employers may need to amend 2013 employment tax returns, and possibly even prior years’ returns, for employees who are same-sex spouses in affected states.”

2. States Not Obligated to Legalize Same-Sex Marriage

While same-sex marriage laws in 13 states plus the District of Columbia have been given a green light, many states may continue to refuse to recognize same-sex marriages that have been performed legally elsewhere. What this means for same-sex spouses who were legally married in one state, but live or work in a state that does not recognize same-sex marriage remains very much unclear.

Burdorf notes that employers may still go beyond what’s allowed by the law to encourage positive morale. They may do this by adopting a uniform policy which allows all employees in a same-sex union to take spousal leave (regardless of state law) “to ensure equal treatment and promote an accepting workplace culture.” But there is no obligation to do so.

3. Big Impact on Employee Benefit Plans

Same-sex married couples living in a state where same-sex marriage is recognized will now be treated the same as opposite-sex couples and, in turn, be eligible for the same federal benefits and protections linked to marital status.

So what does this mean from a practical standpoint? Morley notes that same-sex spouses (in those states) are eligible for continuation benefits coverage under COBRA, may be entitled to special enrollment rights under the Health Insurance Portability and Accountability Act (HIPAA), and may even be eligible for reimbursement for expenses incurred under health benefit plans such as flexible and health savings accounts.


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