FMLA and COBRA Now Cover Same-Sex Spouses

When the Supreme Court struck down part of the Defense of Marriage Act (DOMA), it expanded employment rights for employees with same-sex spouses. For an overview of the changes this creates in the employment area, see Employment Rights and Obligations After the Death of DOMA. (You can find detailed information on how the DOMA case affects other legal rights and responsibilities, from bankruptcy filing to estate planning, at our DOMA Decision page.) This update focuses on two federal employment laws whose coverage has grown in the past week: the Family and Medical Leave Act (FMLA) and the Consolidated Omnibus Reconciliation Budget Act (COBRA). 

FMLA Changes

Before the Supreme Court struck down DOMA's definition of marriage, the FMLA excluded same-sex spouses from the coverage and rights available to spouses of the opposite sex. Even same-sex couples who had legally wed in one of the states or countries that recognizes same-sex marriage were not treated as married under the FMLA and other federal laws. DOMA's definition of marriage as a union between one man and one woman defined many legally wed gay couples out of existence, for purposes of FMLA leave rights. 

But that's all behind us now. Under the FMLA, same-sex spouses now have the same rights as spouses of the opposite sex, including the right to take job-protected leave to:

• care for a seriously ill same-sex spouse
• bond with a new child born to, adopted with, or fostered with a same-sex spouse
• handle urgent practical matters relating to a same-sex spouse's foreign deployment for military service, and
• care for a same-sex spouse who is seriously injured in military service. 

Same-sex spouses are also subject to the same restrictions as couples of the opposite sex. For spouses who work for the same employer, this means their total leave time can be limited. For example, spouses who work for the same employer can be limited to 12 weeks of total combined leave time for parental bonding and to care for a seriously ill parent. Their combined leave time for military caregiver leave is limited, as well. 

And an interesting restriction that already applied to couples of the opposite sex will now also apply to same-sex couples: FMLA leave is not available to care for in-laws. 

COBRA Rights

Same-sex spouses also have health insurance continuation rights under COBRA, but only if they are covered by their spouse's group health plan. COBRA allows employees and their covered dependents, including spouses, to continue their health benefits after an event that would otherwise have cut off those benefits. Often, COBRA is used when an employee is fired or laid off, to continue benefits until the employee finds a new job that provides benefits. However, COBRA also provides separate protection to spouses if, for example, the employee dies or the couple divorces. In these situations, the spouse and other dependents have their own independent right to continue benefits for up to 36 months.

Prior to the Supreme Court's DOMA decision, benefits issues involving same-sex spouses were confusing, indeed. Employers that chose to cover their employees' same-sex spouses had to report the amount they spent on those benefits to the employee as income, and the employee had to declare and pay tax on that amount. Some employers, trying not to penalize gay employees, paid employees with same-sex spouses extra, in a separate paycheck, to cover their tax liability and put them on equal footing with employees who had spouses of the opposite sex. Talk about paperwork!

This is now a thing of the past. Employers who choose to cover spouses no longer have special reporting requirements for same-sex couples, and employees no longer have special tax obligations for these benefits. When COBRA kicks in due to an event that would otherwise cut off benefits, an employer can simply follow the same notice and continuation requirements that apply to all spouses and dependents. HR departments, payroll teams, and benefits coordinators everywhere can breathe a sigh of relief.