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Differing Marriage Recognition Standards May Cause Headaches for Employers

Lauren N. Diulus
Leech Tishman - Pittsburgh Office

September 19, 2013

Previously published on September 13, 2013

On June 26, 2013, the Supreme Court ruled that the federal definition of marriage established by the Defense of Marriage Act (“DOMA”) was unconstitutional. United States v. Windsor, No. 12-307. This decision has implications for employers who are required to comply with other federal statutes that define marriage in different ways, including the Internal Revenue Code (“IRC”) and the Family and Medical Leave Act (“FMLA”).

On one hand, in an attempt to conform to the Court’s decision in Windsor, the Internal Revenue Service (“IRS”) issued Revenue Ruling 2013-17 on August 29, 2013, which states that same-sex couples who are legally married in states that recognize same-sex marriage will be treated as married for federal tax purposes, whether they continue to reside in the state in which they were married or not. Pursuant to this ruling, which the Treasury and the IRS began applying on September 16, 2013, employers should be prepared to recognize same-sex spouses for payroll tax purposes and taxation of employer-provided health coverage and fringe benefits.

By contrast, the FMLA regulations, which govern whether an employer is required to provide leave for its employees, continue to define “spouse” as “a husband or wife as defined or recognized under State law[.]” For purposes of the FMLA, whether a person is a spouse depends upon the employee’s place of domicile, and not where the marriage occurred. Thus, if the employee were married to her same-sex spouse in a state that recognizes same-sex marriage, but lives and works in a state that does not, she will not be entitled to FMLA leave to care for her spouse who is suffering from a serious health condition, for a qualifying exigency if the same-sex spouse is called to active military duty, or for military caregiver leave. However, if the employee also resides and works in the state where she married her same-sex spouse, she would be entitled to FMLA leave for these purposes.

As is evident from the foregoing examples, these varying definitions may cause headaches for employers who may find themselves keeping track of not only their employees’ marital statuses, but also of differing state laws on same-sex marriage, a task that is especially burdensome for multi-state and national employers.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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