Obama administration moves to ensure sick leave for gay couples

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The U.S. Justice Department on June 20 released a report detailing the Obama administration’s broad implementation of the Supreme Court’s United States v. Windsor decision, which struck down key components of the Defense of Marriage Act last June.

The Court’s ruling allowed the federal government to recognize same-sex marriages for the purposes of crucial federal benefits and programs.

“I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law," Holder wrote in the memorandum to President Barack Obama. “The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies. As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.”

Justice's report, however, identifies that the Administration is unable to extend some Social Security and Veterans benefits to married same-sex couples living in states that do not recognize their marriages. The Justice Department has determined that statutory references to “state of domicile” or similar terms require Congress to pass legislation to amend the statues to provide for a “state of celebration” standard.

Included in the report was an announcement that the VA acting secretary will allow for same-sex couples to be buried together in a national cemetery.

"VA worked closely with DOJ to develop guidance to process cases involving same-sex marriages and to implement necessary changes swiftly and smoothly in order to deliver the best services to all eligible Veterans," said acting Secretary of Veterans Affairs Sloan D. Gibson.

The VA, according to a news release, is now processing all claims and applications involving same-sex marriages that were previously being held by the program offices. The VA launched a new website and is continuing to update forms to inform veterans and beneficiaries of the recent changes in the law and procedures. The new website provides important information to help Veterans and beneficiaries understand the eligibility requirements under federal law and VA regulations, and answers frequently asked questions.

"Our commitment to provide all eligible Veterans and their families with their earned care and benefits will continue to be our focus as the VA begins recognizing same-sex marriages to the extent the law will allow." Gibson said. “We will work with lawmakers to address the changes that are necessary to allow all veterans and their families to access the benefits they have earned and deserve.”

Furthermore, the Social Security Administration will begin extending survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner is eligible to inherit from the other partner under state law.  This would include couples with civil unions or domestic partnerships from states like Colorado, Nevada and Wisconsin. 

“As with previous same-sex marriage policies, we worked closely with the Department of Justice,” said Carolyn W. Colvin, acting Commissioner of Social Security. “We are bound by the law within the Social Security Act, and we have to respect state laws.  We remain committed to treating all Americans fairly, with dignity and respect.”

Just prior to the release of the report, the Department of Labor issued a notice of proposed rulemaking which will permit same-sex couples to access leave under the Family Medical Leave Act regardless of state of residence.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Labor Secretary Thomas Perez. “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.”

The Office of Personnel Management also announced it's intent to extend family leave to all federal employees who are married to a same-sex spouse. 

“Under the President’s leadership, the Obama administration has demonstrated an unwavering commitment to ensuring all committed and loving gay and lesbian couples benefit from the Supreme Court’s historic ruling in Windsor last year,” said Human Rights Campaign legal director Sarah Warbelow. “This report should serve as a clarion call for Congress to finish the job."

Most federal agencies have implemented a "state of celebration" standard for determining whether a couple is married.

A uniform standard of eligibility based on the state of celebration provides all couples, and the federal government, with a permanent marital status for purposes of federal benefits regardless of relocation or travel after marriage.

However, some federal agencies, including the Social Security Administration and the Department of Veterans Affairs, are limited in their ability to provide all benefits to couples and individuals if their marriage is not recognized in the state in which they live.

Determining eligibility based on the state of domicile of a couple promotes the growing disparity in quality of life and economic security for same-sex couples based solely on geography. It also fails to resolve the inconsistency issues facing same-sex couples that are legally married in a home state and must relocate to a non-recognition state.