It’s the most recent Obama administration push to extend federal benefits to same-sex couples since the Supreme Court’s United States v. Windsor decision to strike down the 1996 Defense of Marriage Act last year – but businesses are already figuring out ways around the costs.
The Labor Department said on Friday that any employee, regardless of sexual orientation, might be eligible to take leave from work to care for a same-sex spouse, regardless of whether the couple lives in a state where gay marriage is legal. The proposed rule, an extension of protections under the federal Family and Medical Leave Act (FMLA), would ensure that employees in all 50 states would not face the threat of losing their jobs for taking time off to deal with serious medical and family problems.
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“Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families,” Secretary of Labor Thomas E. Perez said in a statement.
Technically, the Labor Department ruling only applies to those working in the private sector – but the White House vows to extend the benefits to federal employees too.
The fine print of the ruling does exclude same-sex couples from two significant benefits: veterans’ benefits and Social Security. Rather than granting eligibility based on where couples were legally married, eligibility is determined based on where they currently reside.
Some Democrats are trying to change this. Sen. Jeanne Shaheen (NH) is leading the charge on addressing the VA language, while Sens. Patty Murray (WA) and Mark Udall (UT) are focused on the Social Security language.
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Of course, there is the exception to the exception. In Colorado, Nevada and Wisconsin, same-sex couples are eligible for Social Security benefits through civil unions or domestic partnerships.
Leading Republicans have had very little to say about the president's new policy. In the Senate, the Chairman of the Senate Health Education, Labor and Pensions Committee, Sen. Tom Harkin (D-IA), issued a statement praising the president. Others, like, Sen. Lamar Alexander, the Committee's ranking Republican, have said nothing to date.
While the proposed change to the law is a step forward for same-sex couples, not everyone is satisfied with the move. James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, acknowledged the Obama administration’s “groundbreaking work” on behalf of same-sex couples but said that “significant work [still] lies ahead, including the push to provide Social Security benefits to LGBT Americans who have been paying into the system for decades and the passage of the Respect for Marriage Act, which would ensure same-sex marriages are recognized across all federal agencies.”
Recent numbers seem to indicate a financial incentive for states to legalize gay marriage. A study by the Williams Institute, a UCLA Law School think tank, shows that legalizing gay marriage in Nevada would generate $52 million in spending and $4.2 million in state and local tax revenue.
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The proposed ruling means much more socially than it does fiscally. “The fiscal impacts for states and for businesses will be small to negligible,” says Eileen Appelbaum, senior economist at the Center for Economic and Policy Research.
Companies with fewer than 50 employees would not be affected at all. About 50 million private sector workers (more than 2 in 5, or 44 percent) are not covered by the FMLA.
Even firms directly affected by the new ruling have ways to accommodate the costs. Appelbaum says that FMLA leaves to care for seriously ill spouses typically last just a few weeks and are unpaid.
“Businesses mainly cover the work of the employee who is caring for a seriously ill spouse in ways that do not incur added costs - having coworkers cover the work or putting the work on hold,” she said. “Where that is not possible, the employer can cover most of the cost of overtime or hiring a temp with the salary savings from not paying the employee who is on family leave.”
In any given year, only a tiny fraction of the workforce takes family leave to care for a seriously ill spouse. “While access to job-protected leave makes a huge difference in the lives of families that need to care for a family member, such events are relatively rare,” says Appelbaum. “This number will not increase appreciably if the expansion to same-sex married couples is implemented. Such couples constitute a small fraction of all married couples.”
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