“DOMA is dead” is a slogan of sorts, incorrectly repeated by many. The Defense of Marriage Act is not dead. The U.S. Supreme Court struck down Section 3 (which states that a marriage is between a man and a woman) as unconstitutional, but upheld Section 2 (which says that each state has the right not to recognize same-sex marriages). By doing so, the Supreme Court held that a marriage, under federal law, can be between any two consenting adults. However, it also held that states can continue not to recognize same-sex marriage.

In essence, DOMA is put on its side; it is not dead.

So where does this leave employers, plan administrators, and same-sex spouses? They’re in a strange state of affairs because depending on where the employees live, they may not necessarily be eligible to receive benefits that they could not receive before the Supreme Court’s holding on June 26, 2013. Some of the changes are obvious—same-sex spouses will now have protected retirement benefits, be eligible for IRA rollovers, have equal required minimum distribution rights, and receive health benefits without additional imputed income. However, other benefits are not as easily ascertainable.

Below are several questions being asked by employers.

1. The Family Medical Leave Act (FMLA) defines a “spouse” based upon state law. Should I simply decline to offer FMLA leave to employees who wish to care for their same-sex spouse if they do not live in one of the 13 states plus the District of Columbia that recognize same-sex marriage?

The core question here is whether it makes sense, from an employee relations perspective, to offer FMLA leave to some married employees and not others. For example, if an employee lives in New York, he or she could use FMLA leave to care for a same-sex spouse. But if that same employee moves to another state, no FMLA need be offered. Employers should conduct a cost-benefit analysis between providing the benefit and dealing with potential employee relations nightmares. Since the law permits employers to be more generous than the law provides, it may be expeditious to be so in this instance.

2. Since same-sex spouses are permitted to retroactively apply for tax refunds for amounts imputed as income for covering same-sex spouses on an employee’s health plan, can employers also apply for a tax credit?

No. According to recently released FAQs from the Internal Revenue Service, only employees may file claims for refunds of withheld federal income tax. However, employers may make adjustments for withholdings made this year if the employer repays (or reimburses) the employee for the withheld income tax before the end of the calendar year.

3. How should employers handle spousal death benefits provided in retirement plans?

Unless otherwise indicated, the state of residency rather than state of celebration of the couple is applied when determining state-based benefit. Beginning Sept. 16, 2013, qualified retirement plans should use the state of celebration rule when applying qualification requirements for various plan death benefits. This means that as long as the wedding took place in a jurisdiction that recognizes same-sex marriage, the state of residency becomes irrelevant. For example, Betty and Veronica live in Nevada, a state that does not recognize same-sex marriage. Betty and Veronica vacation in California and while there got married. When Betty dies, Veronica will be entitled to any spousal death benefits provided by Betty’s plan because they were married in a state that recognizes their union.

4. How should employers handle bereavement leave for the death of a same-sex spouse if the employer is in a state that does not recognize same-sex marriage?

As you may be aware, there is no law, in any state, that regulates bereavement leave. As such, there is no entitlement to bereavement leave of any kind. However, employers may run afoul of antidiscrimination laws if they do not extend bereavement leave to same-sex spouses. While only 14 states plus the District of Columbia recognize same-sex marriage, 21 states plus Puerto Rico and the District of Columbia prohibit discrimination based upon sexual orientation.

5. In some instances, employees move and do not provide employers immediately with their most current address. What should an employer do to protect itself against improperly applying the law in those instances?

Employers should prepare a communication for all current employees, and former employees who remain plan participants, advising them that they and their same-sex spouse may be entitled to certain benefits, depending on their state of residency or celebration. The U.S. jurisdictions that recognize same-sex spouses are California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Washington.

6. Although more guidance is forthcoming, what should employers do now?

Employers have several actions that they can take immediately, some of which are to be in compliance, and some of which are for employee relations purposes. Immediate action steps are:

  • Create a communication for all current employees, and former employees who are plan participants. Advise them that the company is closely monitoring government guidance with respect to same-sex married couples and that as additional information becomes available that affects company-provided or sponsored benefits, they will be apprised.
  • Review all company policies, benefit plans, forms, and applications to determine whether a change is necessary. For example, does the pension plan state that its definition of spouse is that set forth in DOMA (no change is needed) or that a spouse is someone to whom you are married of the opposite sex (an amendment is necessary)?
  • Train employees, working on behalf of the plan administrator, on new benefit administration requirements and protocol. For example, if the plan administrator receives a Qualified Domestic Relations Order application, the employee must be trained when they can or cannot approve a domestic relations order that provides benefits to a soon to be former same-sex spouse.
  • Determine whether you have current spousal information for all employees so that death benefits, if any, are properly paid.
  • Aggressively monitor guidance and implement changes as needed.

Rania V. Sedhom was until recently chair of Bressler, Amery & Ross’s executive compensation and employee benefits practice. She left the firm last month.