Start the Conversation
The reality is that many areas of the world still heavily discriminate against the LGBTQ community and criminalize expressions of sexuality. Travel and risk managers do not necessarily need to know the sexual preferences or sexual identities of their travelers to counsel them about the cultural and societal attitudes present at their destinations. Presenting a comprehensive overview in a matter-of-fact manner can side-step the need to pry into a person’s personal life while also setting up an environment conducive to deeper conversations and questions as necessary.

Understand LGBTQ Health Risks
Healthcare options may be especially limited for transgender individuals, who may need specialty medical care at their destination. These individuals may struggle to find needed medications or obtain a refill should they run out. Anti-hormone transition drugs suppress levels of testosterone to allow estrogens to take prominence but may have adverse effects on the heart. LGBTQ individuals may encounter challenges finding medical care and may be dissuaded from providing a complete medical history in areas that present a high threat for LGBTQ patients.

Most countries restrict the amount of medication travelers can enter with according to the length of the stay. In many instances, a maximum of 90 days of prescription medication may cross borders.

For expatriates, having a doctor’s note on letterhead, with the patient’s full name, medication name, dosage, and reason are required for refills and importation of prescription medication to many countries. The reason (diagnosis) may be especially challenging if traveling to a conservative country with a known low tolerance for the LGBTQ community and may present security challenges.

Surgery of any kind increases the risk of blood clots during flight. LGBTQ patients who have recently undergone surgical procedures should ensure adequate time between surgeries and flights. Some hormone therapies (especially estrogens) also place patients at risk for deep venous thromboses (DVT): blood clots that form in the legs and may become life-threatening if the clot or part of the clot travels to the lungs.

In more socially liberal countries, unconscious bias from healthcare workers may lead to substandard care. LGBTQ individuals need to be prepared to encounter these attitudes and be able to advocate for their care and proper treatment. Risk managers and travelers should research cultural tolerances and potential biases to determine if an advanced arrangement with a “preferred” treatment center is necessary.

Key Takeaways
Ensuring the safety of your LGBTQ personnel and students starts with a conversation. Transgender travelers require a duty-of-care policy that helps them prepare for the challenges they may face abroad. Ensuring the safety and health of these unique travelers is a corporate responsibility.

About WorldAware
WorldAware provides intelligence-driven, integrated risk management solutions that enable multinational organizations to operate globally with confidence. WorldAware’s end-to-end tailored solutions, integrated world-class threat intelligence, innovative technology, and response services help organizations mitigate risk and protect their people, assets, and reputations.

The Final Rule (RIN 1235-AA09) changes the definition of “spouse” in federal regulations, 29 C.F.R. §§ 825.102 and 825.122 (b). Under the new place of celebration test, if an employee was legally married in a state or country that recognizes same-sex marriages but moves to a state that does not, the employee’s marriage is still recognized and the employee can take FMLA leave to care for his/her spouse. This is a change from the prior “state of residence” test, which conditioned FMLA rights for same-sex couples on the law of the state in which the individual resides. This final rule takes effect on March 27, 2015.

The change has its roots in United States v. Windsor, 132 S. Ct. 2675 (2013), in which the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as the union of a man and woman. After Windsor, employers needed to determine how to treat employees in same-sex marriages for purposes of federal taxes and various other federal employee benefits such as leave rights under the FMLA because many employee benefits are provided through the spousal relationship and state law on marriage equality differed.

In a revenue ruling shortly after Windsor, the IRS declared the state of celebration test would be used to define a marriage for federal taxes: meaning if a same-sex couple got married in a state that legally recognized their marriage, the couple will be considered married for purposes of federal tax laws regardless of whether they moved to a state where same-sex marriage is not recognized. This affected employee benefits as follows: (1) employers with group health plans had to cease imputing income to employees whose same-sex spouse participates in the plans (as employers had previously been required to do); (2) employers were required to allow employees to pay the premiums for their same-sex spouse’s coverage with pre-tax dollars (if other employees with opposite-sex spouses are permitted to do so); and (3) employers with qualified retirement plans needed to treat same-sex spouses as “spouses” for all purposes under their plan (e.g., the spousal consent requirements for beneficiary designations).

In contrast to the IRS and other federal agencies, for purposes of the FMLA, the DOL determined that an individual would only qualify as a same-sex spouse of an employee if the employee resides in a state that recognizes his or her marriage (i.e., the “state of residence” test). Because this test precluded couples who were legally married but moved to states that did not recognize their marriage from applicable rights, in June 2014, the DOL proposed regulations to modify its regulations to adopt the state of celebration test like the IRS. The proposed rule was published in the Federal Register June 27, 2014. The DOL noted that the proposed rule elicited 77 comments representing more than 18,000 individuals. The comments that came from the Human Rights Campaign, labor organizations, employer associations, and a group of 23 U.S. Senators overwhelmingly supported the change.

Today, 37 states and the District of Columbia have full marriage equality and six states have lower court decisions in favor of marriage equality, which are staying pending appellate court review. Additionally, the Supreme Court has accepted certiorari to review the 6th Circuit Court of Appeals decision which upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. As of June 2015, we will likely have more clarity nationwide on marriage equality.

The Bottom Line for Employers

For now, under the new rule, provided the employee was married in a state or country where same-sex marriage is recognized, and regardless of the state law in which the employee currently resides or works, an eligible employee will be allowed to take FMLA leave to care for his/her same-sex spouse with a serious health condition, take qualifying exigency leave due to his/her same-sex spouse’s covered military service, or take military caregiver leave for his/her same-sex spouse. If your FMLA policy simply provides for leave for a “spouse” and does not define spouse or improperly limit the definition of spouse, there is no need to change it. However, employers should make sure human resources personnel and managers understand this change and are providing all required leave for legally married same-sex spouses regardless of the law of the state in which the employee currently resides or works.

All federal contractors who do $10,000 or more in business with the federal government in a given year are prohibited from discriminating against an employee or applicant on the basis of sexual orientation or gender identity. The Executive Order requires the Office of Federal Contract Compliance Programs (OFCCP) to prepare regulations to implement the new rules within 90 days and all contracts entered into after those rules are effective must abide by the new rules. Employers who are or may be covered by this new Executive Order should now take steps to ensure their internal policies and manuals reflect the new requirements. The OFCCP expects to issue permanent regulations to enforce the Executive Order by early 2015.

Notably, President Obama rejected suggestions that he create additional exemptions for religiously affiliated contractors in the Executive Order he signed. The only exemption that exists was put in place by President George W. Bush and permits a religiously affiliated contractor to favor individuals of a particular religion when making an employment decision but does not excuse compliance with any other provision of the applicable Executive Order. Whether the Executive Order could and/or will be challenged by closely held, religiously affiliated contractors on the basis of the recent Hobby Lobby decision is an open question at this point.

Employers who contract with the federal government, or who are subcontractors to a federal contractor, should be aware of the president’s action and take this time to review their internal polices and OFCCP compliance practices. Additional information on the proposed regulations from OFCCP will be forthcoming when it is made available. The Executive Order that President Obama signed can be found here and the original Executive Order relating to the employment practices of federal contractors can be found here.