From the moment Multnomah County became the first county in Oregon to issue marriage licenses to same-sex couples in the State of Oregon, employers faced questions as to what consideration they must give to the decision's impact on the companies' non-discrimination policies and employee benefits programs.
Oregon state law
Oregon state law defines marriage as "a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age. The language does not state that such civil contract must be entered into by a man and woman only. The Oregon State Attorney General has issued a nonbinding opinion stating that any Oregon county that issues a marriage license to same-sex couples is likely violating current law, but that the current law would likely be held as unconstitutional by the Oregon Supreme Court. Governor Kulongoski has issued a statement containing his hope that Multnomah County will temporarily cease issuing marriage licenses until the Oregon Supreme Court definitively rules on the issue, but indicated that the State will not take action to compel Multnomah County to cease. It remains to be seen how Multnomah County will respond to that request, however licenses that have already been issued will likely retain their legal effect.
Other states and federal law
Under Washington law, same-sex marriages do not have to be recognized, even if legal in other states, although the City of Seattle, as an employer, has said that it will recognize same-sex marriage from other states. In all, 38 states have passed similar Defense of Marriage ("DOMA") statutes. Generally, these laws are based on the federal DOMA which defines "spouse" as "a person married to the opposite sex who is husband and wife" and defines "marriage" as "between one man and one woman." The difference in Oregon State Law and other state's and federal law puts Oregon employers into the difficult position of recognizing same-sex marriage for some purposes but perhaps not others, particularly if employees are located in various states. With careful planning, the employer may be able to adopt one interpretation for all employees regardless of the state in which the employee is located.
Employee benefit plans
The company's written plan document will usually define who is eligible for benefits as including a "spouse." The question the employer must answer is "who is a spouse?" A self-funded health insurance plan is governed by federal law, not state law, which does not recognize same-sex marriages. Whereas, insured health plans are subject to state regulation. Before the employer interprets the term "spouse" in their plan to include same-sex spouses, the employer should consult with their legal counsel and insurer.
Employers must also consider Oregon discrimination laws prohibiting discrimination based on marital status and sexual orientation. State and federal gender and religious discrimination laws may also come into play. There are also collateral issues involving COBRA, FMLA and OFLA, workers' compensation and other statutory laws impacted by this decision, which for brevity we will not discuss but you should seek further guidance from your counsel.
Recommendations
To avoid confusion and inconsistent application, an alternative for employers to consider is adopting a domestic partner policy, or including all same-sex couples under their current domestic partner benefits policy until the state laws become certain on this issue. This allows all same-sex couples to receive the same benefits that they would receive as "spouses" under the employee benefit plans and allows the employer to operate under a clear and reasonable framework until the state law is more clear.
Before acting, employers must communicate with their insurers to determine if their premiums will increase with the possible inclusion of domestic partners in their plan and ensure that all documents and summaries properly reflect any definitional change that the employer is considering. Perhaps most importantly, employers need to be aware of these issues as they arise and then communicate openly with their employees. Proper training and written, documented policies is the best defense in any situation.
If you have any question how the various same-sex marriage ruling impacts your workplace, please contact Chrys Martin (503.499.4420) or Jeff Robertson (503.499.4686) in Oregon, or Medora Marisseau (206.521.6427) in Washington.