The United States Supreme Court’s recent decision in Obergefell v Hodges striking down state law prohibitions of same sex marriage and requiring states to recognize such marriages from other states will have some immediate impact in the workplace. That is particularly true for employers in states such as Tennessee where no prior lower federal court decision invalidated Tennessee’s constitutional ban on same sex marriages.
The primary area of immediate concern for employers will be employee insurance and other benefit policies. To the extent those policies provide for spousal benefits, you will need to arrange for same sex spousal coverage on self-insured plans and coordinate with insurance providers to extend those benefits under group insurance benefit plans. The eligibility descriptions for spousal benefits in your employee handbook and any benefit plan descriptions will also need to be updated.
One area that will require some coordination in timing is transitioning from any currently provided same sex partner benefits to spousal benefits. Since most of those are insurance related, you will want to make sure that the phase out/phase in dates are coordinated such that there is no break in coverage and no double premiums.
For employers with limited open enrollment periods for insurance coverage, you will want to review whether this recent change in the law will be treated as a “qualifying event” under HIPAA that will enable employees in a same sex marriage to immediately enroll their spouses as covered dependents. While a marriage constitutes a qualifying event, the addition of the spouse onto the plan usually must be made within 30 days from the date of marriage. You may have employees who were married in other states long before same sex marriage was legally recognized in Tennessee. While their marriage may not be recent from the standpoint of celebration (and therefore outside the limited time period for special enrollment following celebration), the marriage did not become recognized in Tennessee until issuance of the Obergefell decision. Employers facing this situation may want to consider having a special enrollment period for employees in this situation.
As I discussed in a previous blog article, the United States Department of Labor extended Family and Medical Leave Act (FMLA) spousal leave benefits to eligible employees with same sex spouses effective March 27, 2015 . This applied to employees in all states – even those in states where same sex marriages were not recognized – as long as their marriage was legal in the state where it occurred. Thus, if you have not already done so, you now need to review how your FMLA policy is being administered to ensure that those benefits are offered to eligible employees in both heterosexual and same sex marriages.
One important consideration to keep in mind is that while the Supreme Court held that states can no longer prohibit celebration or recognition of same sex marriages, the ruling does not create any anti-discrimination protection for homosexual employees in the workplace. Neither federal law (Title VII of the Civil Rights Act), nor Tennessee state law (the Tennessee Human Rights Act) currently provide homosexual employees with any right to pursue discrimination claims against employers. Any such protection will need to be enacted by the state legislature or Congress. Nonetheless, the Supreme Court has previously found that harassment of homosexual employees on account of their sexual preference can be unlawful harassment “on account of sex” and therefore provide the basis for a sexual harassment claim against their employer. In the immediate wake of the Obergefell decision, employers should be aware of the potential that some workplace conversations and statements on the subject of homosexuality and same sex marriage might cause homosexual employees to feel threatened and possibly claim harassment. Of course, not all negative remarks regarding same sex marriage recognition or homosexuality will constitute harassment “on account of sex.” If you believe your workplace may be prone to this potential, now may be a good time to meet with managers and review your anti-harassment policy, as well as any other policies that pertain to treatment of coworkers.
John M. Lawhorn of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.