Ferrara Fiorenza P.C.

Same-Sex Marriage Law Presents Challenges for Employers Complying with Federal and State Law

On June 24, 2011, the New York State Legislature passed -- and the Governor approved -- the Marriage Equality Act, authorizing same-sex marriage. The passage of this law extends certain rights to employees and places certain obligations on employers throughout the State.  It also requires consideration of how certain federal laws may impact on those same rights and obligations. 

The Marriage Equality Act provides that in all New York marriages each partner, regardless of sex, must be accorded the full rights and privileges of New York law. Specifically, the law provides: 

No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. (Domestic Relations Law § 10-a.2.) 

Prior to the passage of the Marriage Equality Act, New York had recognized same sex marriages for the application of certain benefits, provided that the marriage was legal in the location where it took place.  In other words, if a same-sex couple married in Ontario, Canada, or in Massachusetts where same-sex marriages are legal, such marriage was considered a valid marriage for certain purposes in New York, e.g.health insurance. See Martinez v. County of Monroe, 50 A.D.3d 180 (4thDept. 2008).  The Marriage Equality Act now makes clear that any right or privilege created by New York law that is dependent upon marital status is applicable to all marital partners regardless of the sex of the spouse. 

While benefits such as health insurance and New York state pension rights are now clearly available to a spouse, regardless of whether the spouse is the same or different sex, there are still significant differences in treatment when federal statutes are reviewed. For example, while a New York employer mustoffer health insurance on the same basis to same sex marriage partners as is offered to different sex marriage partners, the federal tax treatment accorded will differ. 

This is because of a federal statute entitled the Defense of Marriage Act (DOMA) which explicitly defines marriage as between partners of different sexes. Even though state law may authorize or recognize same sex marriage for state based benefits, DOMA prevents recognition of such benefits when based upon the interpretation of a federal statute. Thus, the health insurance contribution made for the spousal coverage for employer-provided health insurance is not subject to federal tax if made on behalf of a different sex spouse, but it is taxableif made on behalf of a same sex spouse. For New York state tax purposes, on the other hand, payment of such benefit by an employer is not subject to taxation under either scenario. 

Under a strict statutory interpretation, the benefits afforded by the Family Medical Leave Act (FMLA) are federally-mandated benefits. Therefore, a spouse under FMLA, as defined by DOMA, does not include a same sex marriage partner.  Accordingly, any FMLA benefit granted based upon a spousal relation is not available to same-sex spouses. It is important to remember, however, that while FMLA benefits are not mandated for same-sex spouses, there is nothing precluding an employer from making such benefits available through policy or negotiations. 

In implementing the benefits that must be accorded to participants in a same-sex marriage, employers must be careful to make sure that eligibility for such benefits is determined by the same criteria that are utilized when determining eligibility for benefits in a heterosexual marriage. If an employer has never required a participant in a heterosexual marriage to produce a marriage certificate as proof of entitlement to enroll a spouse in a health insurance plan, it would be discriminatory to now ask a same sex spouse to provide proof of marriage. An employer can request proof of marriage, but if it does, such proof must be required for both same sex and different sex marriages. 

A number of employers also have either collective bargaining agreements or policies that provide certain benefits for domestic partners. Such benefits were often extended in recognition that some relationships warranted the extension of some benefits to same sex partners, and that such benefits were not otherwise available since same sex partners could not marry. With the passage of the Marriage Equality Act, employers may want to consider whether such benefits should be continued since the legal impediment to extending such benefits to same sex partners no longer exists. 

Finally, an employer may want to review its collective bargaining agreements to make sure that any contractual benefits accorded to spouses are made available to same sex marriage partners as well. For example if a labor contract has a provision allowing the use of sick leave for the illness or death of a spouse, that same benefit must be provided to the same sex spouse. 

An employer must implement the benefits provided under the Marriage Equality Act. Failure to do so could result in a charge of discrimination based on marital status or sexual orientation. Policies should be reviewed and training implemented to make sure that the mandates of the statute are fulfilled. 

If you have any questions or need assistance in reviewing or revising your policies, please feel free to contact us.


Excerpted from the August 2011 edition of "Employment Law Matters".  To see the entire newsletter, please click here.