Same Sex Marriage Decision – What should Ohio Employers do?

On June 26, 2015, The Supreme Court ruled, in Obergefell v. Hodges, that the 14th Amendment requires a state to license a marriage between two people of the same sex, and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Ohio law did not previously recognize any domestic partnership rights or same-sex marriage performed in other states.  Unlike those states that had previously recognized either domestic partnerships or same-sex marriages performed in-state or in another state, the implementation of the new law in Ohio, at least for employers, will be far less complicated.

SSexEmployers in states that previously recognized domestic partnerships and/or same sex marriage, for example, were required, at least for state income tax purposes, to impute the employer’s cost of covering a same-sex spouse to employee income for the purpose of computing employer income tax liability.  In Ohio, unless an employer had previously recognized domestic partnership voluntarily, this aspect of the decision will not entail employers having to make a decision about whether to offer benefit plan coverage to domestic partners, or to discontinue that coverage, allowing coverage only to “legally” married spouses

What should Ohio Employers be considering in light of this decision?
Employers should be reviewing their benefit plan documents, employee handbooks and other statements of policy to ensure that the definition of “marriage” and/or “spouse” is gender-neutral and does not use terms such and “husband” or “wife” or use the corresponding pronouns of “his” and/or “her”.  Employers should also ensure that the procedures used to verify marital status for the purpose of benefit coverage do not inadvertently discriminate against same-sex marriage.  Employers should now require both same-sex and opposite-sex spouses to verify marital status and avoid requesting verification of marital status only to those who are in a same-sex marriage.

In addition to removing non-gender-neutral language from all of its policies and benefit plan documents, employers in Ohio should consider that Ohio’s “mini-COBRA” law, which applies to Ohio employers who have at least 2 employees but less than 20, is now formally extended to employees who choose to marry under the laws of any state.  This means that employees residing in Ohio, who are legally married under the laws of another state or newly married under what is now law in all states, are now eligible to continue health benefit coverage after involuntary termination of employment (barring gross misconduct) under Ohio law, with certain provisions.

Employee benefit plan administrators under a group plan must now identify which of their employees are currently married under the laws of another state and/or are now legally married under the new law of the land, which provides for universal recognition of same-sex marriage.  Employers should identify those benefit plans and policies which now have the potential to be impacted by this issue.  Employers should understand that this is a legal compliance issue, and not merely a question of simply beginning to offer employee benefits to those employees who are part of same-sex marriages.   Employers who previously offered domestic partnership benefits will now have the opportunity to consider the cost savings potential of discontinuing domestic partnership benefits in light of the new law, as well as whether to provide a grace period to employees currently receiving benefits under a domestic partnership policy, giving time for those employees to marry prior to losing coverage.

If you have questions or desire a consultation to discuss the impact of this decision on your business, please call 937-223-1130 email  Kristina Curry or Matt Stokely of Pickrel, Schaeffer & Ebeling’s Labor and Employment law group.

AUTHOR: Kristina Curry

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