- Employee federal income tax withholding;
- Family Medical Leave Act ("FMLA") and Oregon Family Leave Act ("OFLA") administration;
- Employee benefit plans subject to the Employee Retirement Income Security Act ("ERISA"); and
- Availability of health care subsidies under the Patient Protection and Affordable Care Act ("PPACA").
Employee Federal Income Tax Effects
For example, an employee who lives and works in Portland, Oregon, travels to Vancouver, Washington, and enters into a lawful same-sex marriage on December 1, 2013. Under Revenue Ruling 2013-17, the employee and spouse may file their federal income tax returns jointly for the year 2013 even though same-sex marriage is banned under the Oregon Constitution. This only applies to same-sex couples who enter into lawful same-sex marriages. Couples in registered domestic partnerships, civil unions, or other similar relationships are not "married" under federal law.
Employers should be aware of these nuances when handling requests to update employee marital statuses and withholdings on Form W-4.
FMLA and OFLA Administration
Unlike the IRS, the DOL WHD focuses its analysis on the employee's place of domicile. Continuing the previous example, the Oregon employee who lawfully marries in Washington may file joint federal income tax returns but may not be entitled to FMLA leave to care for the spouse's serious health condition because the employee lives in Oregon — a state that prohibits same-sex marriage.
However, on October 16, 2013, Michael Jordan, Chief Operating Officer and DAS Director for the State of Oregon, sent a memo to all Oregon agency directors advising them to recognize out-of-state same-sex marriages for purposes of administering Oregon state programs. This raises a question as to whether Oregon "recognizes" out-of-state same-sex marriages to the extent that FMLA coverage under the DOL's updated interpretation is triggered.
For Oregon employers, OFLA adds another layer of complexity. OFLA permits eligible employees to take unpaid, job-protected leave to care for spouses and same-gender domestic partners. Whether an Oregon employee lawfully wed in Washington may use OFLA leave to care for his or her same-sex spouse (but not registered domestic partner) is an open question.
Affordable Care Act Subsidies
The examples above provide an outline of what is known, but there are still many unanswered questions such as whether an employer may concurrently deduct an employee's OFLA and FMLA leave banks for time used to care for a same-sex spouse. Another unknown is how the new Portland sick leave rules will apply to same-sex spouses who are not registered as domestic partners in Oregon.
In sum, the changes to same-sex marriage laws affect employers in a variety of areas. These laws continue to evolve, making compliance challenging at best. For these reasons, you should consult competent employment law counsel to assist you when making changes to employee policies or benefits programs that are implicated by a person's marital status. Any member of our employment law group would be happy to assist you.
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