DOMA Decision Could Impact FMLA

Since the U.S. Supreme Court decided to send the power to define marriage back to the states, employers and their HR leaders could soon have their hands full either trying to equalize FMLA benefits, or else preparing to face the consequences of not doing so.

Tuesday, August 13, 2013
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With the country still coming to grips with the June 26 U.S. Supreme Court decision striking down the section of the Defense of Marriage Act limiting the federal definition of marriage to between a man and woman, Family and Medical Leave Act experts are busily cautioning employers about the impact this may have, state to state.

Since the decision basically puts the power of defining marriage back into states' hands, "from an HR standpoint, this creates substantial complications," says Don Rowe, managing director of ProSential Group, a Marblehead, Mass.-based provider of HR solutions.

"For example, if an employee with a same-sex spouse lives and works in a state that recognizes same-sex marriage, the employee would have the same rights to FMLA as an employee with an opposite-sex marriage," Rowe says. "However, if that employee lives and works in a state that does not recognize same-sex marriage, they likely would not have the same protections."

Worse yet, says Matt Morris, vice president of FMLA Source for Chicago-based employee-assistance-program provider ComPsych, since FMLA is defined by where the employee lives, not where he or she works, problems could arise if an employer is based in D.C., for instance (which legalized same-sex marriage in 2009), but has employees driving in from Maryland (where legalized same-sex marriage went into effect in January), West Virginia and northern Virginia (both of which ban same-sex marriage by constitutional amendment or state law). such a scenario, "you could have two, or even three, people working side-by-side with the exact same life and gender situations and the exact same job titles, with one being granted FMLA leave to care for a sick spouse, let's say, and the other, or others, not -- that could be a very sticky situation and a difficult one to explain," says Morris.

Just how sticky could this get? With 13 states and D.C. deeming same-sex marriage legal, 35 states banning it, some states (such as New Jersey and New Mexico) silent on the issue and some (Michigan, Ohio, Virginia and New Jersey) seeing lawsuits filed, it's going to be every employer's nightmare trying to figure it all out.

"It's just a matter of time," says Morris, "before an employee with one set of rights finds himself or herself sitting next to someone with the same life, sex and marriage status getting treated differently because of differing state laws." In fact, he adds, there are no doubt hundreds of same-sex couples heretofore denied FMLA benefits at the ready to apply for them again based on the Supreme Court ruling.

The Wall Street Journal reported Friday that the U.S. Department of Labor had issued a regulatory guidance on this issue, with a focus on enforcing FMLA on behalf of all same-sex couples nationwide, though the story mentions state-by-state recommendations have yet to be stipulated. An earlier, Aug. 7, story in the Washington Blade offers additional details on the DOL's guidance plans. Nevertheless and in the meantime, Morris' advice to employers and HR leaders is to bone up on the state law in their headquarter states, the states where they do business and all the surrounding states where employees may live. No doubt information-technology departments can help with this.

Ascertaining who is in a same-sex marriage and who might be asking for FMLA leave, though, is a nearly impossible job for HR and benefits administrators.

Morris' best counsel is for employers to start thinking about this dilemma from a policy perspective. "What does that policy say about who you want to promote and engage?" he says. "Some companies have already begun doing this."

Another "simple" solution for employers facing such a dilemma, says Rowe, "may be to simply allow FMLA for employees with same-sex spouses, even those who reside in states that do not recognize same-sex marriage."

There are, however, says Rowe, "some risks with this approach, particularly as it relates to eligibility for full insured benefit programs, where an insurance carrier may not recognize the leave as valid if an employee resides in a state that does not recognize same-sex marriage."

While many FMLA experts agree employers would be wise to stand at the ready for an onslaught of potential new FMLA users, Thomas Parry, president of San Francisco-based Integrated Benefits Institute, thinks the "impact should be negligible."

"Same-sex married couples," says Parry, "will still represent a proportionately small portion of all married couples in the United States. Children of same-sex couples were already covered, even when DOMA was the law, and leave for family issues other than child bonding has been typically rare. Lastly, many use this leave to care for parents, not spouses.

"The challenge for employers," he says, "is not in dealing with a possible increase in family and medical leave, but in shifting their approach to how they address this leave; specifically, how they address the many issues in accommodating employees' serious health conditions and complying with the FMLA.

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"This leave," he adds, "provides a unique source of business intelligence about the likelihood of later short-term disability leaves. Because inadequate attention has been paid to FMLA requests as an early warning for STD claims, the number of lost opportunities to improve productivity outcomes are countless, to say nothing of the lost value to employees, employers and the economy."

Indeed, as documented in IBI's recent study, Early Warnings: Using FMLA to Understand and Manage Disability Absence (Feb 2013), employers have an opportunity to minimize disability costs by connecting at-risk employees to existing benefits.

IBI's study found a significant relationship between FMLA and STD incidence and duration. Even denied FMLA requests showed a strong relationship with later STD claims. FMLA leave for family issues -- i.e., care for a family member -- were also predictive of both mental-health and physical STD claims, but more strongly predictive of mental-health STD.

"The findings," says Parry, "imply missed opportunities to assist employees more effectively on the front end, when needs are first identified.

"Since we can only manage well what we measure well, [HR leaders] will be successful to the extent they actively use a broad array of measures to identify and minimize risks," he says. "Work outcomes are important to measure because research from IBI and others demonstrates that individuals with high levels of stress are absent more often and perform more poorly at work.

"Employers should ask themselves if the needs of the workforce are being met early on through employee-assistance programs, disease-management and counseling/services targeted at ameliorating a variety of problems employees may be facing, such as anxiety, financial problems, sleeping problems, fatigue or a family member's illness," he says. "Throughout the process, measurement is critical, from initial identification of a concern; through program participation, including treatment and counseling; and ultimately functional work outcomes, such as attendance and job performance."

Regardless of what the future may hold, says Rowe, employers need to "examine their policies in light of the recent ruling and determine what specific rights and benefits should be granted to employees with same-sex spouses."

"Employers must also remain vigilant as additional guidance is issued," he says, "particularly as it relates to important employment rights or tax issues."

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