Does Same Sex marriage affect your workplace?

By John Davis

            In all likelihood, the answer is yes.  Whether you are a business owner or an employee, the Massachusetts Supreme Judicial Court’s decision in the nationally debated Goodridge case that granted same sex couples the right to marry probably has affected your workplace.  This article provides a rudimentary overview of some employment law issues relative to the Goodridge decision.

1. Employee Handbooks – For employers, it would be prudent to review all employee handbooks, benefit plans and policies.  It is important to know who the company is providing benefits for and who is eligible for the benefits.  In addition to understanding what a company is legally obligated to provide, it also makes sense to consider what it should provide, regardless of any legal requirements.  In other words, it may be prudent to provide equal benefits to all employees because it is good for morale and it may help the company avoid costly legal challenges.
2. Maternity Leave – Women are allowed 8 weeks of leave for the birth or adoption of a child.  The relevant authorities are Mass. Gen. Laws, Chapters 149, § 105D and 151B, § 1 et. al., which only applies to companies that have more than 5 employees.  Whether the woman is heterosexual or homosexual is irrelevant.  Thus, a woman in a same sex marriage who is giving birth (or adopting a child) has the same rights to maternity leave as a women in an opposite sex marriage.
3. Benefit Plans and Federal Tax Benefits – The Defense of Marriage Act that Bill Clinton signed into law in 1996 defines marriage as between a man and a woman.  Because this is federal legislation, any employee benefit plan that is subject to ERISA or any federal tax benefit or program, i.e., the Family Medical Leave Act, are not required to be offered to spouses in a same sex marriage.  There are certain programs and laws that would not be affected because they are not linked to federal law, i.e., government or church plans, non-qualified deferred compensation plans, fully insured welfare benefit plans, etc.  There is an exception to the rule - a same sex spouse can be entitled to federal benfits if the spouse is defined as a dependent of the other spouse, which means that the same sex spouse is entitled to any benefits that accrue under federal and state law for dependents.
4. C.O.B.R.A. – The 1996 Defense of Marriage Act would prevent same sex spouses from coverage of this federal piece of legislation; however, the mini-COBRA, which is the Massachusetts statute that applies to employers with 2-19 employees would cover same sex spouses. 
5. Discretionary Benefits – These benefits, (i.e., bereavement leave, housing benefits, relocation benefits, employee discount plans) cannot be withheld from same sex spouses in Massachusetts.