As the afternoon faded into evening on Friday October 10, 2014, with the stroke of a judge’s pen, history was made in North Carolina. That evening I told my children to mark their mental calendars for all time because they should be able to tell their kids and grandkids about the day that North Carolina became a state that allowed same sex marriage. Based upon the U.S. Supreme Court’s decision not to hear an appeal of the Fourth Circuit’s decision, Federal U.S. District Court Judge (and Asheville lawyer) Max O. Cogburn, Jr. signed an order declaring Amendment One unconstitutional and allowing for the immediate granting of marriage licenses to same sex couples. Some of us had friends waiting at courthouses across the state for the ruling so they could be married; others were upset. But regardless of your personal opinions, the law changed historically and brought immediate questions for employers.
The first question concerns the FMLA: The current regulation (although changes have been proposed) requires employers to grant FMLA to same-sex spouses under the same conditions as other spouses if the state in the which the employee resides recognizes same sex marriage. Until October 10, this meant that North Carolina employers were not required to grant FMLA leave to care for same-sex spouses. Now that North Carolina recognizes same sex marriage, North Carolina employers are required to grant FMLA leave to care for same-sex spouses. Importantly, this applies only to spouses – meaning two individuals who are legally married. It still does not apply to domestic partnerships and other marriage-like arrangements, regardless of the sex of the two people in the arrangement. Likely this change in the law does not require a change to your FMLA policy, but merely a change in its application. On a related note, I have been asked whether employers can require proof of marriage for same sex couples. I would recommend that employers be consistent regarding the type of documentation requested and under what circumstances. I would not advise employers to ask same-sex couples for proof of marriage if they do not require it of opposite-sex couples. Employers can either: (1) always ask proof or (2) ask for proof in questionable circumstances, regardless of the sex of the employee or his/her spouse.
The second question concerns insurance benefits: Employers who offer coverage to spouses of their employees would now be required to offer coverage to same-sex spouses just as you offer coverage for opposite-sex spouses. This sounds easy in theory. It may be more difficult initially in application: if you have newly married same-sex couples, then the marriage is a qualifying event and the spouse can elect coverage just as any newly married opposite-sex spouse. However, what if you have same-sex married couples who were married in another state? Now that North Carolina has just recognized the marriage, have they had a qualifying event? I recommend that you work with your insurance carrier or third party administrator to handle this situation. I know many employers who have opted to treat the change in law regarding the marriage as a qualifying event and allow a window for immediate enrollment of the same-sex spouse. Others, particularly employers with open enrollment quickly approaching, have opted instead to allow same-sex spouses to enroll during open enrollment this year. Employers should work with their plans and administrators to make reasonable decisions of what works best for their employees and in accordance with the terms of their plans. As with FMLA, however, employers should be aware that this change only affects couples who are legally married, not couples in marriage-like arrangements or partnerships.
The third question concerns discrimination: In North Carolina sexual orientation is not a protected class. However, in making any employment decision, including those that affect the terms and conditions of employment and benefits, employers should be aware that the EEOC has taken the position that at least in certain circumstances discrimination based upon sexual orientation can also qualify as discrimination based upon sex.
Historic changes in the law are exciting and difficult. Employers should be consistent in their application of their policies and benefits and seek legal counsel where appropriate to determine the best way to navigate this change in North Carolina’s law over the next few months.