Recorded Webinar – Impact of DOMA and Proposition 8 on California Employers

Members of Drinker Biddle’s newly formed “California HR” team, a cross-practice group featuring lawyers from our Employee Benefits & Executive Compensation and Labor & Employment practices, presented a webinar on the impact of the U.S. Supreme Court’s Defense of Marriage Act ruling and what it means for employers, especially in connection wtih Proposition 8.

The webinar focused specifically on the concerns of human resources professionals and in-house counsel of companies headquartered or doing business in California, including how DOMA will impact their policies and how it will affect benefit plans and retirement plans.

Other areas of discussion include:

  • Possible changes California employers need to make to welfare benefit and retirement plans.
  • How beneficiaries are now determined.
  • What documentation employers can require in confirming a domestic partnership or same sex marriage?
  • The intersection between DOMA and FMLA.
  • Marital status discrimination issues and other issues of concern to California employers.

To listen to a recording, please click here.  It may take a moment to load.

FMLA Protected Leave Now Available To Same-Sex Spouses

By: Marion B. Cooper

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things,  make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”)This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses.  Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of spousal leave based on same-sex marriages under the FMLAThis change is of great consequence to same-sex spouses who previously were unable to access the job-protected leave provided under the FMLA.  Now, eligible same-sex spouses will be able to take FMLA leave for certain specified family and medical reasons, including caring for a spouse with a serious health condition, and generally will be returned to their original position or another position with equivalent pay, benefits and status.  The new interpretation reflected in the Department’s updated guidance documents will be effective immediately.

In the Department’s official blog, Modern Families and Worker Protections, Laura Fortman, the principal deputy administrator of the Wage and Hour Division, announced on August 13, 2013 that revisions had already been made to various FMLA guidance documents to reflect the changes necessitated by U.S. v. Windsor.  Fortman clarified that the “changes are not regulatory, and they do not fundamentally change the FMLA.”  They merely expand the universe of employees who are eligible for FMLA benefits by including legally married same- sex couples.  The updated documents can be viewed at these links:

Although Secretary Perez did not specifically address the question, the updated guidance documents indicate that the Department only intends to expand FMLA benefits to same-sex spouses in the 13 states and the District of Columbia that have recognized same-sex marriage.  As an example, Fact Sheet#28F, Qualifying Reasons for Leave Under the Family and Medical Leave Act, defines “spouse” for purposes of FMLA leave as  “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.”   In contrast, the Office of Personnel Management announced on its website that benefits will be extended to Federal employees and annuitants who have “legally married a spouse of the same sex, regardless of the employee’s or annuitant’s state of residency.”

As initial steps to implementing these changes, employers should inform or train human resources personnel regarding the availability of FMLA leave to eligible employees under the specified definition of spouse; review internal procedures and leave documentation to ensure compliance, and finally, review employee handbooks and policies to include provisions for same-sex couples where appropriate.

Supreme Court Rules Defense of Marriage Act Unconstitutional — What Does this Mean for Plan Sponsors?

Editor’s note: Along with their alert on the IRS recent guidance on confirming the previously announced one-year transition rule for the employer “shared responsibility” mandate and related reporting obligations under the Affordable Care Act, our colleagues in in the Employee Benefits & Executive Compensation Practice Group have put out an alert on the U.S. Supreme Court’s recent ruling in United States vs. WindsorThe complete text of the alert appears below.

Supreme Court Rules Defense of Marriage Act Unconstitutional — What Does this Mean for Plan Sponsors?

By: Frances P. LaFleur and Cristin M. Obsitnik

The U.S. Supreme Court recently paved the way for legally married same-sex spouses to have the same federal rights and benefits as married opposite-sex spouses.  In United States vs. Windsor, the Court struck down as   unconstitutional the federal definition of “marriage” as only between a man and a woman and the definition of “spouse” as a legally married person of the opposite sex.

The Court found that Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” and “spouse” for purposes of applying federal laws, violates the equal protection guarantees under the Fifth Amendment by not   recognizing a same-sex marriage permitted by a state.  This means that if a same-sex marriage is legal under state law, it must now be recognized   for federal law purposes.  Notably, the Court let stand the states’ right to refuse to recognize same-sex marriages lawfully performed in other states.

The Court’s decision will affect over 1,000 federal laws including the Internal Revenue Code, the Employee Retirement Income Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and the Family Medical Leave Act (FMLA), and will have a significant impact on employer-sponsored employee benefit plans and policies.

Effect on Plans and Policies

Employer obligations under retirement and health and welfare plans and employee policies will be affected to the extent any rights or benefits are tied to the definition of “spouse.”  As a result, amendments to plan documents and changes to administrative policies may be required.  However, as discussed below, additional guidance is needed on the timing for implementing any related changes and how same-sex spouses, lawfully married in one state but currently living in a non-recognition state, will be treated under federal law.

Significant changes to employee benefit plans include the following:

Health and Welfare Plans 

Imputed Income — The cost of employer provided health, dental and vision benefits for covered same-sex spouses and their covered children will no longer be subject to federal income tax.

Pre-Tax Expense Reimbursements — Reimbursement under a flexible spending account (FSA), health reimbursement account (HRA) or health savings account (HSA) may be made for covered expenses of same-sex spouses and their children on a tax-free basis for federal tax purposes to the same extent as available to opposite-sex spouses.

Dependent Care — Dependent care accounts may be used to pay eligible expenses for care provided to the children of same-sex spouses.

COBRA — Same-sex spouses are eligible for continuation coverage under COBRA.

Special Enrollment and Election Changes — Same-sex spouses are eligible for special enrollment rights under HIPAA and applicable change-in-status events under Internal Revenue Code Section 125.

Retirement Plans

Spousal Consent — If federal law requires spousal consent to name a non-spouse beneficiary, a same-sex spouse’s consent will be required.

QDROs — Plan fiduciaries must recognize domestic relations orders obtained by same-sex spouses, subject to plan QDRO procedures.

Surviving Spouse Benefits — If required for opposite-sex spouses, qualified pre-retirement survivor annuities must be paid to same-sex spouses unless coverage has been waived and the same-sex spouse consents to the waiver.

QJSA Payments — Same-sex spouses are entitled to qualified joint and survivor annuity protection unless a different form of payment is elected with the spouse’s consent.

Hardship withdrawals — Hardship withdrawals under the safe-harbor definition will be available for same-sex spouses’ medical, tuition and funeral expenses.

Rollover — Same-sex spouses may roll over a distribution from the plan sponsor’s plan to their own individual retirement account (IRA) or another   employer’s qualified plan.  Previously, a same-sex spouse could only roll over a distribution to an inherited IRA.

Required Minimum Distributions — Same-sex spouses will be permitted to defer required minimum distributions until the deceased participant would   have reached his or her required beginning date after age 70 1/2.

Other Policies

FMLA — Employees will have the right under the FMLA to take a leave of absence to care for a same-sex spouse with a serious health condition.

Applying State Marriage Laws — Who is a Legally Married “Spouse”?

Twelve states [1] and the District of Columbia currently permit same-sex marriage.  It is clear from the Court’s ruling that same-sex spouses who reside in these states, or in states that recognize same-sex marriages legally performed in other states, now are entitled to the same federal benefits and protections afforded to opposite-sex spouses.  What is not clear is how federal laws will be applied if a same-sex spouse, lawfully married in one state, moves to another state that does not recognize same-sex marriage or lives in a state that recognizes same-sex marriage but works in a state that does not.  While there is some precedent for the IRS and other federal government agencies to recognize a marriage validly performed in any state regardless of a person’s current state of residence, the IRS has acknowledged the need for additional guidance on the implications of the Court’s decision, and has stated that it intends to issue such guidance in the near future.

Plan sponsors may still choose to provide equivalent benefits for same-sex partners in states that do not recognize same-sex marriage and those in civil unions or domestic partnerships.  However, as was the case previously for all same-sex spouses, there will be different treatment under certain federal laws (imputed income on health benefits, limitations on rollovers, etc.).  State tax treatment is not affected by the ruling and, as before, may vary from federal tax treatment.

Effective Date

The Court’s decision becomes final on or about July 22, 2013.  Whether its impact on employee benefit plans will be applied retroactively is yet to be determined.  Retroactive application may mean that employee benefit plans could be liable for actions taken before the Windsor decision that were in compliance with DOMA at that time.  For example, if a pension plan provides only a spousal death benefit, could a legally married same-sex spouse of a previously deceased participant have a claim?  Similarly, are employees and employers entitled to claim a refund for taxes paid on imputed income for health benefits provided to a same-sex spouse?  As noted above, the IRS and other federal agencies are reviewing the Court’s decision and intend to provide guidance on when and how these changes should be implemented.

What to Do Now

As we await further guidance, plan sponsors may want to consider taking the following actions:

  • Review how the term “spouse” is used in plan documents and policies.  Consider whether to amend the plan’s definition of spouse or change the criteria for benefits for same-sex spouses and also for domestic partnerships and civil unions.  While some changes will be mandatory, others will be in the plan sponsor’s discretion.
  • Stop imputing income for health, dental and vision coverage for same-sex spouses in states that recognize same-sex marriage.
  • Contact vendors, including recordkeepers, insurers, etc. to determine the cost and time frames necessary to make required system and administrative changes.
  • Assess what payroll system updates and administrative process changes are needed.
  • Review participant communications, including summary plan descriptions, beneficiary designation and consent forms, enrollment forms, etc., to determine what changes need to be made.
  • Determine whether a specific employee communication regarding the implications of the Supreme Court ruling is desired (e.g., to acknowledge the ruling and note what steps the plan sponsor is or may take while awaiting further regulatory guidance).
  • Consider whether to seek a refund for previously paid employment taxes on medical, dental and vision coverage provided to same-sex spouses.

We are following these issues closely and will keep you posted on any agency guidance about the timing or implementation of the changes.

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[1] Connecticut, Delaware (effective July 2013), Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 2013), New Hampshire, New York, Rhode Island (effective August 2013), Vermont and Washington.  In addition, in Hollingsworth v. Perry the Supreme Court reinstated a California court’s order allowing same-sex marriages.

 

The DOL’s Made Some Changes to the FMLA; Is Your Policy in Compliance?

By: Amy Lauricella

Effective March 8, 2013, the Department of Labor (“DOL”) began enforcing a new Final Rule for interpreting the Family and Medical Leave Act of 1993 (“FMLA”).  The DOL’s new Final Rule (published February 6, 2013) makes effective expanded military caregiver and qualifying exigency leave rights created by the National Defense Authorization Act of 2010.   The Final Rule also incorporates an hours of service eligibility requirement created by the Airline Flight Crew Technical Corrections Act of 2009, a federal law which modified FMLA eligibility requirements for airline flight attendants and flight crew members, who largely had been excluded from protected leave due to their unconventional work schedules,

The bulk of the DOL’s Final Rule clarifies military qualifying exigency and service member caregiver leave.  Significant changes to the FMLA regulations resulting from the Final Rule include the following:

Extension of Military Caregiver Rights to Veterans:  The Final Rule implements statutory amendments to the FMLA that extend military caregiver rights to family members of veterans with serious injuries or illnesses.  Specifically, the regulations define a covered veteran as a member of the Armed Forces who has been discharged or released under conditions other than dishonorable within five years prior to the date the employee’s leave.  The Final Rule adopts a flexible definition of a serious “injury or illness” for purposes of veteran military caregiver leave coverage.  Additionally, the Final Rule expands the definition of serious injury or illness for current service members to include preexisting conditions aggravated by service in the line of active duty.

Expansion of Qualifying Exigency Leave:  The DOL’s Final Rule extends qualifying exigency leave to eligible employees who are family members of military personnel of the Regular Armed Forces that are deployed to a foreign country.   The DOL Final Rule also expands qualifying exigency leave to add a “parental care” category.  Under this new category, an eligible employee may take qualifying exigency leave to care for a service member’s parent, who is incapable of self-care, in order for the eligible employee to:

  1. arrange for alternative care;
  2. provide care on an urgent, immediate need basis (but not on a routine, regular or everyday basis);
  3. admit or transfer the parent to a care facility; or
  4. attend meetings with staff at a care facility (but not for routine or regular meetings).

The need to provide parental care must arise directly out of the military member’s active duty status.  Additionally, under the DOL’s new regulations, eligible employees now may take up to fifteen (15) days, instead of five (5), for qualifying exigency leave related to their rest and recuperation.

Clarification of Leave Certification Process:  Prior FMLA regulations allowed certification of a service member’s serious injury or illness to be obtained only from representatives of the Departments of Defense or Veterans Affairs.  Other health care providers were excluded from certifying a service member’s serious injury or illness.  Under new FMLA regulations, any health care provider, even those unaffiliated with the Department of Defense, Department of Veterans Affairs or TRICARE, may provide required certification for an eligible employee to take military caregiver leave.

New FMLA Poster and Certification Forms:  The Final Rule approves a revised FMLA Employer Rights and Responsibilities poster and new certification forms for FMLA leave, including a new form for military caregiver leave to care for veterans.  The FMLA poster and certification forms, which are available on the DOL’s website, have been revised and updated to incorporate the new language of the FMLA regulations.

In light of these significant changes to FMLA regulations, employers need to revise their current FMLA policies and replace outdated posters and certification forms to bring them into compliance.  Employers can also expect an uptick in the number of employees requesting military–related FMLA leave, as the DOL’s new regulations have expanded existing leave rights to cover a greater number of eligible employees.

Third Circuit Addresses The Notice An Employee Must Give Of Unforeseeable FMLA Leave

By: William R. Horwitz

On August 3, 2012, in Lichtenstein v. University of Pittsburgh Medical Center, the U.S. Court of Appeals for the Third Circuit addressed the issue of how much information an employee must provide when notifying an employer of unforeseeable leave under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”).  By way of background, the FMLA generally entitles eligible employees to take up to twelve weeks of unpaid leave during any twelve-month period to care for themselves or a family member with a “serious health condition,” such as a condition requiring inpatient hospital care or continuing medical treatment.  An employee only qualifies for FMLA leave if he or she provides sufficient information to permit the employer to determine whether the FMLA applies.  For unforeseeable leave, the regulations require an employee to provide this notice “as soon as practicable.”

In this case, plaintiff Jamie Lichtenstein, a psychiatric technician, telephoned her employer shortly before her shift was scheduled to begin and explained that she “was currently in the emergency room [because her] mother had been brought into the hospital via ambulance, and [Lichtenstein] would be unable to work that day.”  A few days later, Lichtenstein provided further information about her mother’s condition and requested a leave of absence but, by that time, the employer had already decided to terminate Lichtenstein’s employment for unrelated conduct pre-dating the mother’s emergency room visit.

In a lawsuit against her employer, Lichtenstein asserted FMLA interference and retaliation claims, alleging that her absence had constituted protected leave and that her employer had impermissibly considered the absence in deciding to terminate her employment.  The district court granted summary judgment for the employer, dismissing Lichtenstein’s FMLA claims.  Among other things, the district court concluded that Lichtenstein’s notice was inadequate to trigger the FMLA’s protections, because it did not include enough information for the employer to conclude that her mother “necessarily” had a serious health condition.  On appeal, the Third Circuit reversed, emphasizing that, “when the leave is unforeseeable, the employee’s obligation is to provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request” (internal quotation marks omitted and emphasis in original).

The Third Circuit explained that, by notifying the employer that her mother had been taken to the emergency room by ambulance, Lichtenstein did not provide enough information for the employer to conclude that her mother necessarily had a “serious health condition,” but did provide enough information for the employer to reasonably determine that her mother may have a “serious health condition” and the FMLA may, therefore, apply.  According to the Court, once the employee’s initial notice “reasonably apprises the employer that FMLA may apply, it is the employer’s burden to request additional information if necessary.”

The Lichtenstein case provides helpful guidance for employers.  With regard to the FMLA, when receiving information from an employee suggesting that his or her absence may trigger the FMLA, the employer should follow up with the employee and request additional information.  This case also acts as a reminder that, when discharging employees, an employer should be sure to document its legitimate, non-discriminatory reasons in order to minimize the risk that an unexpected development, such as unforeseeable leave, provides a basis for employees to allege that the decision was unlawful.

New Jersey District Court Allows Plaintiff to Proceed to Trial on Claim of Unlawful Discharge, Dismisses Claims of Handicap and Discrimination

By: Jerrold J. Wohlgemuth

The New Jersey District Court in St. Cyr v. Brandywine Senior Living LLC, recently granted summary judgment to the employer dismissing the plaintiff’s causes of action for handicap and race discrimination, but allowed the plaintiff to go to trial on her claim that she was unlawfully discharged in violation of the FMLA in retaliation for asking for a medical leave of absence because she was fired only two days before the leave of absence was to begin.  In granting summary judgment on the claim of handicap discrimination, the court determined that the plaintiff, who suffered from arthritis, was not “handicapped” under the NJLAD because the condition, which  was alleviated with medication, did not interfere with her ability to perform her job, and because she never asked for an accommodation for the condition.  The court rejected her claim of race discrimination based on her admission that the only evidence implicating racial animus was the fact that she was fired for watching the BET Network on television during working hours.  The court noted that the plaintiff, who had previously been placed on probation for poor performance and was on final warning, was replaced by an African American employee and had failed to show the legitimate reason given for her discharge was pretextual.  Despite that finding, however, and despite the fact that the employer had granted the plaintiff’s request for a medical leave of absence, the court denied summary judgment on the claim of retaliatory discharge under the FMLA based only on the determination that the timing of the discharge – only two days before her FMLA leave was to begin – was “unusually suggestive” of retaliatory motivation.  The court did not explain how the timing could be suspect if that was when the plaintiff was found watching television instead of doing her job, and if there was no evidence that the proffered reason was pretextual.