Employers focused on Obamacare may be missing one of today’s most important compliance issues: benefits for same-sex married couples. Since June 2013, when the United States Supreme Court ruled in U.S. v. Windsor that a federal statute limiting the terms “spouse” and “marriage” to couples of the opposite sex was unconstitutional, a sea-change has taken place in  national attitudes about same-sex marriage. That change of attitude and Windsor have resulted in an avalanche of lawsuits challenging state bans on same-sex marriage, and have prompted both the Internal Revenue Service and U.S. Department of Labor to issue advisories warning employers of actions they must take to bring their benefit plans and policies into compliance.

Unfortunately, confusion remains, because the government’s advice is sketchy and inconsistent. For example, the Department of Labor says that employers complying with the federal Family and Medical Leave Act must treat validly married same-sex couples as “spouses” only if the couples live in a state that recognizes same-sex marriage. By contrast, the IRS says that validly married same-sex couples are “married” and “spouses” wherever they live. This conflict between the “place of residency” standard put forth by DOL, and the “place of celebration” standard” required by IRS, highlights the problems facing employers trying to become compliant  In the meantime, proponents of same-sex marriage have scored an unbroken string of court victories invalidating state bans on same-sex unions. 

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