The good news is that for most companies the decision should not require any significant changes in policies, as a number of states already allowed same-sex marriages or recognized domestic partnerships. However, even if you do not need to modify any policies, same sex marriage is an emotional issue for many people. With all of the publicity surrounding this decision, this is a good time to be aware of possible hostility or tensions toward LGBT employees or any simmering issues in your workplace.

Discrimination Issues

LGBT Discrimination – Obergefell was an important decision because there is no federal law which expressly prohibits discrimination on the basis of sexual orientation or gender identity. However, almost one half of the states and numerous municipalities, including large states like New York and California, already allow same sex marriage and prohibit discrimination based on sexual orientation. If you do business in those areas, your policies should already prohibit such discrimination. Again, this is an opportune moment to remind your managers and employees that your company will not tolerate discrimination or harassment of any employee based on sexual orientation, or gender identity.

Marital Status Discrimination - Even if you are not in a state which currently has such a law, a number of states, including New York, New Jersey, Connecticut, and California, as well as states like Michigan, Nebraska, and North Dakota ( where same-sex marriage was banned until last week’s ruling), prohibit discrimination on the basis of marital status. Such protections are now unequivocally also extended to same-sex marriages and spouses. This is also something to be aware of as an employer, in that you may have employees who are opposed for moral or religious reasons to same sex marriage. While they have a right to their beliefs, they should not be permitted to allow those attitudes to invade the workplace. Thus, if an LGBT employee chooses to get married, the marriage should not affect their job. Moreover, whatever privileges and benefits the company extends to heterosexual couples must now be extended to same sex couples.

Lastly, even if Obergefell does not change the law in your state or city, we often observe an “uptick” in claims where there is a new decision or verdict in a specific area, as the issue suddenly becomes “top of mind” with your employees. Thus, this may be a good time to remind your management that such discrimination is both against the law and against your policies, and to be aware of events occurring in your workplace.

Leave and Benefit Policies

The impact of this decision on employee benefit plans and policies may not be significant, as this was already clarified by the IRS and the DOL in the aftermath of United States v. Windsor, the 2013 Supreme Court decision striking down the Defense of Marriage Act. The IRS and DOL took the position that such a union should be considered valid. Now, Obergefell has eliminated this issue by virtue of the opinion’s declaration that same-sex marriage is a constitutional right. Nonetheless, this is a good time to audit your policies.

FMLA Leave. In the case of the Family Medical Leave Act, earlier this year the DOL issued a final rule expanding the definition of “spouse,” under which an otherwise eligible employee is allowed to take FMLA leave to care for a same-sex spouse regardless of whether the employee lives in a state that recognized their marital status. Many of the questions raised by the final rule are now moot, since after Obergefell states can no longer prohibit same-sex marriage.

Nevertheless, employers will want to make sure their FMLA policies, forms, and practices are current and accurately reflect this recent development, as well ensure they train supervisors and administrators accordingly. Employers should also be mindful of the differing definitions and applications of marriage under the varying state leave laws that may also apply and be sure to check with employment counsel to ensure compliance with obligations on both the federal and state levels.

Other Leave Policies. Employers that offer bereavement, non-FMLA medical, and/or military leaves should update the policies to reflect that the particular leave is extended to also include same-sex spouses and relatives of same-sex spouses.

Tax Issues. In addition, prior to Obergefell, in states which did not recognize same-sex marriages, employers were required to impute the value of benefits provided to same-sex spouses for state tax purposes or withhold state income taxes with respect to same-sex spouses. After Obergefell, however, such benefits should no longer be taxable for state tax purposes, and the previously inconsistent federal and state income tax treatment will no longer apply. Relatedly, in light of the potential income tax implications of the Obergefell decision, employers should also be prepared to update tax and withholding information upon the request of newly recognized same-sex spouses.

Domestic Partnerships. Notably, Obergefell has no impact on domestic partnership or civil union relationships recognized under state law. As a result, employers may now want to consider whether special treatment for such relationships is still appropriate post-Obergefell, where same-sex couples have the same rights and ability to marry as heterosexual couples. For its part, while the FMLA will now cover individuals who enter into a same-sex marriage, it does not protect civil unions or domestic partnerships. As such, employers will want to carefully consider the application of FMLA protection in certain situations but remain free to grant broader leave rights than those provided for under federal law.

In summary, employers should be ready to remind management of your anti-discrimination policies, and update any employee handbooks, policies, plan documents, forms, beneficiary designations and other personnel documents as necessary.

While FMLA-eligible employees (both male and female) may already be entitled to up to 12-weeks of bonding leave following the birth or adoption of a child, the Massachusetts leave law will permit such employees to take an additional eight weeks of parental leave if they have already exhausted their FMLA entitlement for reasons other than parental leave. Moreover, while the FMLA applies to employers with 50 or more employees, the Massachusetts parental leave law applies to employers with six or more employees.

Massachusetts employers—or those with employees in the Commonwealth—should take this opportunity to review their leave policies and ensure their leave administrators are aware of these new leave rights available to new dads.

It is not just the number of lawsuits. In my practice many clients are experiencing an epidemic of FMLA claims, especially claims by employees that they need intermittent FMLA leave. This often is a contagious illness which will infect an entire department or a group, as it seems that once one employee finds out about and is certified for FMLA, other co-workers will follow, resulting in multiple employees in one department who are all certified for FMLA leave.

Why this steady increase in claims and lawsuits? There are many reasons.

First, the FMLA statute has become more widely known, as the Department of Labor (“DOL”) expands its reach and publicizes the law, so more people know about it. For instance, the DOL just recently expanded the law to apply to same sex couples. As the FMLA becomes more widely known, more employees are invoking the law.

Second, the FMLA definition of a “serious health condition” is, unfortunately, very broad and very easy for employees to satisfy. Thus, many employees who have chronic conditions find it convenient to use that condition to become certified for FMLA leave, especially for intermittent leave. It also seems that many doctors seem willing to certify that an employee needs FMLA intermittent leave, even when that need is not totally clear.

Third, once they are certified, employees can take a FMLA day and cannot be disciplined for poor attendance, making it a very convenient way for employees who want to take more time off to get that time off, without fear of discipline. In other words, once certified, employees will take a “FMLA day” when they need a day off. Since the law does not allow employers to require a doctor’s note, it is very easy then for the untruthful employee to “abuse” FMLA time (take a FMLA day when they are not truly sick). It is often impossible for the employer to detect such abuse. Adding to the frustration, an employer generally cannot deny intermittent leave based on a burden on the business, making it difficult to tolerate an employee who is absent for intermittent FMLA days.

Lastly, many lawsuits are the result of ignorance of the law or frustration by employers (or both). The FMLA is complicated, with many dozens of regulations which are not all intuitive. Your Human Resources Department needs to take the time to learn it, or have legal counsel who know the statute. Also, a lawsuit may arise because a manager who is not aware of the FMLA will inadvertently violate the law, by either not recognizing that an employee may have a serious health condition or not alerting the employee to their FMLA rights. There are also cases where employees who are certified for FMLA leave are retaliated against after requesting it, again by managers who may not be educated as to the requirements of the law.

So what should employers do?

Do not throw up your hands or ignore your obligations under the law. If you do the latter, you will find yourself on the receiving end of one of the many FMLA lawsuits. The answer is to know the law, and work with Human Resources or outside counsel to understand your rights, and to monitor your employees’ behavior:

• Be as aggressive as the law allows when certifying leave. Many companies make the mistake of automatically saying yes and certifying a leave as soon as the employee submits a FMLA form. That may not be the right course. The FMLA does allow an employer to request more information from an employee and the employee’s physician, if the original FMLA application is not “sufficient.” 29 C.F.R. §825.307. Scrutinize an application and the doctor’s note when you receive it and make sure that it supports the leave request. If it does not, push back. The employee has an obligation to follow up and respond. 29 C.F.R. §825.305 and §825.313.

• Once leave is certified, monitor the use. Make sure managers require the employees to tell them when they are using a FMLA day. If the number of days used are more than was originally requested or predicted, you may then have the right to go back and request re-certification. 29 C.F.R. §825.308.

• If you suspect abuse of intermittent or other FMLA leave, you may have the right to investigate and discipline the employees. This is a tricky area, as you need some good faith basis for the belief. You would be well advised to ask outside counsel before taking action. 29 C.F.R. §825.216(d).

• Last but not least, educate your managers. Make sure that those who directly supervise employees are generally aware of the FMLA, know how to recognize a possible serious health condition, and know that they need to involve Human Resources when a possible FMLA issue arises.

The FMLA is a challenging statute for employers to comply with. That said, if an employer is aware of its obligations, gets good legal counsel and is diligent in complying with those obligations – it is certainly a manageable obligation.

The new law expands the scope of Massachusetts’s existing maternity leave statute to afford parental leave on a gender-neutral basis. Where both parents work for the same employer, the law affords only eight weeks of leave between the two of them.

While the federal Family and Medical Leave Act already affords up to 12 weeks of unpaid leave following the birth or adoption of a child, the FMLA applies only to businesses with more than 50 employees. The Massachusetts parental leave law applies to employers with six or more employees, so will extend leave rights to male employees of much smaller businesses. The state law also eliminates the one-year-of-service requirement to be entitled to leave under the FMLA. Instead, parental leave must be available to employees who have worked for at least 3 consecutive months as a full-time employee.

The Massachusetts law also provides that if employers agree to extend parental leave beyond the eight weeks under the statute, that extended leave must be treated as job-protected leave. One limited exception to this rule applies where the employer informs the employee in writing and prior to the commencement of any extended leave that taking longer than eight weeks of leave may result in denial of reinstatement rights.

The new Massachusetts law takes effect on April 7, 2015. President Obama recently announced that paid parental leave would be provided to federal employees, and it is likely that other states may soon follow suit with gender-neutral parental leave policies.