How Will the Supreme Court's Ruling on Same-Sex Marriage Impact Kansas Employers?
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08/10/2015
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By: Teresa Shulda
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The
Supreme
Court
has
had
a
busy
summer.
Between
ruling
in
favor
of
religious
dress
accommodations
in
EEOC
v.
Abercrombie
and
Fitch,
fashioning
a
new
test
to
apply
in
pregnancy
bias
cases
in
Young
v.
UPS,
and
ensuring
the
viability
of
the
Affordable
Care
Act
in
King
v.
Burwell,
you’d
think
that
the
Supreme
Court
had
given
employers
enough
to
contemplate.
But
the
nine
Justices
waited
until
the
end
of
their
term
to
deliver
one
of
the
most
hotly
anticipated
decisions
all
year
in
Obergefell
v.
Hodges.
By
a
5
to
4
margin,
the
Court
held
that
state
bans
on
same-sex
marriage
are
unconstitutional.
Now,
same
sex
couples
can
legally
wed
in
all
50
states,
and
presumably,
will
be
entitled
to
the
same
state
and
federal
marriage-related
rights
and
benefits
that
opposite-sex
married
couples
enjoy.
But
the
Obergefell
ruling
raises
questions
for
many
employers,
who
are
wondering
what
employment-related
benefits
are
now
required
for
same-sex
couples.
Obergefell
was
not
an
employment
case
and
did
not
directly
address
any
employment
law
issues;
however,
employers
can
expect
to
feel
some
impact
from
the
decision.
Currently,
there
is
no
federal
law
that
prohibits
discrimination
on
the
basis
of
an
employee’s
sexual
orientation
or
gender
identity.
The
50
states
are
a
patchwork
of
varying
anti-discrimination
laws
in
that
regard.
Indeed,
some
states
are
a
patchwork
of
laws
among
cities
within
the
state.
While
some
states
and
cities
prohibit
discrimination
and
harassment
on
the
basis
of
an
employee’s
sexual
orientation,
Continue Reading...
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HHS Addresses Same-Sex Spouses Under HIPAA
|
09/19/2014
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By: Jason Lacey
|
The
HHS
Office
for
Civil
Rights
(OCR)
has
provided
guidance
on
the
status
of
same-sex
spouses
under
the
HIPAA
privacy
rule.
In
light
of
the
Supreme
Court's
Windsor
decision,
same-sex
spouses
are
recognized
as
lawful
spouses
for
purposes
of
all
federal
law,
including
HIPAA.
Under the
HIPAA
privacy
rule,
spouses
are
"family
members"
of
a
protected
individual,
which
is
relevant
for
at
least
the
following
two
purposes:
- Under
certain
circumstances,
a
covered
entity
(including
a
health
plan)
is
permitted
to
share
an
individual's
protected
health
information
with
the
individual's
family
members.
The
guidance
makes
clear
that
a
family
member
includes
an
individual's
same-sex
spouse.
- The
privacy
rule
prohibits
health
plans
from
using
or
disclosing
genetic
information
for
underwriting
purposes.
Genetic
information
includes,
for
example,
genetic
tests
of
an
individual's
family
member
or
information
regarding
the
manifestation
of
a
disease
or
disorder
in
an
individual's
family
member.
The
guidance
makes
clear
that
a
family
member
for
this
purposes
also
includes
an
individual's
same-sex
spouse.
An
individual's
same-sex
spouse
may
also
qualify
as
the
"personal
representative"
of
an
individual
under
the
privacy
rule,
which,
among
other
things,
would
allow
the
same-sex
spouse
to
act
on
behalf
of
the
individual
in
some
circumstances.
OCR
indicates
that
further
clarification
regarding
treatment
of
same-sex
spouses
as
personal
representatives
will
be
forthcoming.
The
bottom
line
for
health
plans
and
other
covered
entities
is
that
same-sex
spouses
will
be
treated
the
same
as
opposite-sex
spouses
for
purposes
of
the
HIPAA
Continue Reading...
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IRS Provides Guidance on Treatment of Same-Sex Spouses In Retirement Plans
|
04/04/2014
|
By: Jason Lacey
|
The
IRS
released
its
long-anticipated
guidance
today
on
the
impact
of
the
Windsor
case
to
qualified
retirement
plans.
The
guidance
resolves
a
potentially
thorny
issue
on
retroactive
recognition
of
same-sex
marriages
and
clarifies
when
plans
must
adopt
any
amendments
required
to
comply
with
Windsor.
Here
are
the
highlights:
Retroactivity
Permitted
But
Not
Required.
Plans
are
not
required
to
recognize
same-sex
marriages
for
any
period
before
June
26,
2013
(the
date
of
the
Windsor
decision).
They
are
permitted
to
designate
an
earlier
date
as
of
which
same-sex
marriages
will
be
recognized
for
plan
purposes,
although
the
guidance
observes
that
recognizing
same-sex
marriages
for
all
purposes
as
of
a
date
earlier
than
June
26,
2013 may
trigger
requirements
that
are
difficult
to
implement
retroactively
and
may
create
unintended
consequences,
so
caution
must
be
exercised.
Amendments
May
Not
Be
Necessary.
A
plan
must
be
amended
to
reflect
the
outcome
in
Windsor
only
if
the
plan
terms
are
inconsistent
with
Windsor.
For
example,
a
plan
that
defines
a
spouse
as
only
a
person
of
the
opposite
sex
would
be
inconsistent
with
the
outcome
in
Windsor.
But
a
plan
that
merely
uses
the
term
"spouse"
or
"lawful
spouse"
without
limiting
it
to
persons
of
the
opposite
sex
may
be
ok.
Amendment
Timing.
To
the
extent
an
amendment
is
required,
it
generally
must
be
adopted
by
December
31,
2014.
(Special
rules
may
apply
for
non-calendar-year
plans
and
governmental
plans.)
Health
and
Welfare
Plans
Unaffected.
This
guidance
addresses
only
retirement
plans
and
does
not
impact
health
and
welfare
plans.
The
IRS's
notice
(Notice
Continue Reading...
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|
What A Short, Strange Trip It’s Been
|
02/19/2014
|
By: Boyd Byers
|
Has
it
really
only
been
a
week
since
the
Kansas
House
of
Representatives
passed
House
Bill
2453?
Supporters
said
it
simply
protects
religious
liberty.
Opponents
countered
that
it
sanctions
discrimination
against
same-sex
couples;
allows
police
officers,
fire
fighters,
and
other
government
employees
to
refuse
to
provide
basic
or
emergency
services
to
tax
payers;
and
imposes
significant
burdens
on
Kansas
employers.
A
nationwide
hullabaloo
ensued.
House
Bill
No.
2453
is
titled
“an
act
concerning
religious
freedoms
with
respect
to
marriage.”
Section
1
of
the
bill
provides,
“Notwithstanding
any
other
provision
of
law,
no
individual
or
religious
entity
shall
be
required
by
any
governmental
entity
to
do
any
of
the
following,
if
it
would
be
contrary
to
the
sincerely
held
religious
beliefs
of
the
individual
or
religious
entity
regarding
sex
or
gender:
…
Provide
any
services,
accommodations,
advantages,
facilities,
goods,
or
privileges
…
or
provide
employment
or
employment
benefits,
related
to
…
any
marriage,
domestic
partnership,
civil
union
or
similar
arrangement.”
The
term
“religious
entity”
is
broadly
defined
to
include:
(1)
any
“religious
corporation,
association,
educational
institution
or
society;”
(2)
any
entity
“connected
with”
such
a
religious
organization;
or
(3)
“a
privately-held
business
operating
consistently
with
its
sincerely
held
religious
beliefs.”
Section
2
provides
that
individuals
or
religious
entities
that
refuse
to
provide
services,
employment,
or
employment
benefits
“related
to”
any
such
relationship,
because
of
their
religious
beliefs,
are
shielded
from
civil
claims
or
government
penal
action.
Section
2
also
says
that
if
an
employee
of
any
employer
(even
the
government
or
a
non-religious
Continue Reading...
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|
Post-Windsor Guidance Addresses Employment Tax Refunds
|
09/25/2013
|
By: Jason Lacey
|
In
another
round
of
post-Windsor
guidance
(here),
the
IRS
has
provided
some
alternative
processes
for
obtaining
refunds
of
employment
taxes
(FICA
tax
and
withheld
income
tax)
paid
with
respect
to
same-sex
spouses
prior
to
the
Supreme
Court's
decision
in
Windsor (e.g.,
for
coverage
under
a
cafeteria
or
health
plan).
Overpayments
for
2013.
With
respect
to
taxes
paid
in
2013,
there
are
two
alternative
procedures
for
claiming
a
refund:
(1)
the
employer
may
true-up
the
entire
year's
withholding
on
its
fourth
quarter
2013
employment
tax
return
(Form
941);
or
(2)
the
employer
may
file
a
single
amended
employment
tax
return
(Form
941-X)
for
the
fourth
quarter
of
2013
to
reflect
the
correct
withholding
amounts
for
the
entire
year.
Both
of
these
approaches
allow
employers
to
avoid
filing
amended
returns
for
each
quarter
of
the
year
to
correct
the
withholding
for
that
quarter.
For
the
third
quarter
of
2013
(July-September),
employers
should
report
on
the
employment
tax
return
for
that
quarter
the
amount
of
taxes
actually
withheld
and
not
refunded
by
the
end
of
the
quarter.
For
example,
if
an
employer
adjusted
its
withholding
system
effective
August
1,
2013
and
also
refunded
any
taxes
withheld
in
July
2013,
then
it
would
not
report
any
of
those
withheld
amounts
on
its
Form
941
for
the
third
quarter.
But
if
it
did
not
refund
the
July
taxes
by
the
end
of
the
third
quarter,
then
those
taxes
should
be
reported
on
the
third
quarter
return
and
a
refund
claimed
by
way
of
one
of
the
methods
Continue Reading...
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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