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Guest Article

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(From the June 21, 2010 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

More Benefits Are Open to Domestic Partners of Federal Employees

As a continuation of the initiative begun a year ago, both the White House and the Office of Personnel Management issued directives to the Executive Departments and Agencies to extend benefits to the domestic partners of federal employees to the extent permitted by law. Separately, under federal rulemaking, domestic partners are eligible for federal long-term care insurance beginning July 1.

One Year Anniversary Evidences Progress

In June 2009, the President asked the heads of executive departments and agencies to review the benefits they offered to determine whether any could be extended to same-sex domestic partners. After reviewing the submitted reports, the Office of Personnel Management (OPM) recommended that all the identified benefits be extended. On June 2, 2010, the President issued a Memorandum directing immediate action to extend the benefits and ordered the OPM to issue guidance. It further specifically directed the OPM to take action to extend:

  • Child care subsidies and services.
  • Employee assistance programs.
  • Noncompetitive appointments under Executive Order 12721.
  • Insurable interests in federal retirees under 5 U.S.C. 8339(k)(1), 8420.
  • Evacuation payments under 5 U.S.C. 5522-5523.
  • 24-hour non-paid family and medical leave in connection with school and early childhood educational activities, routine family medical purposes, and elderly relatives' health or care needs.
  • Extra allowances payable with regard to employees stationed on Johnston Island under 5 U.S.C. 5942a.

OPM Guidance

In response, the OPM issued guidance directing that, to the fullest extent possible, governmental agencies should make the following benefits available to same sex domestic partners (and their children) to the same extent they are available to spouses (and their children):

  • Credit union membership.
  • Access to fitness facilities.
  • Hardship transfers to maintain or improve the health of a domestic partner.
  • Planning and counseling services (including briefings on employee pay and allowances, career counseling, retirement counseling, financial counseling, resource and referral services, planning sessions for permanent change of duty station, deployment support, parenting support groups, and elder care support groups).
  • Family assistance services (including adoption counseling, parenting counseling, childcare, elder care, financial planning, and home improvements).
  • Family and morale/wellness/recreation events (including barbeques, golf outings, or awards ceremonies).
  • Access to medical treatment.
  • Access to lodging or allowances.
  • Joint consideration of transfers.
  • Accidental death and dismemberment insurance.

The OPM similarly directed non-title 5 agencies to take such action as necessary to ensure that the benefits being offered to employees' spouses (and their children) are also offered at an equivalent level wherever legally permissible to employees' same-sex domestic partners (and their children). According to the guidance, benefits already being offered by one or more non-title 5 agencies to domestic partners include:

  • Health insurance premium reimbursement program (for employees enrolled in the Federal Employees Health Benefit Plan).
  • Dental insurance.
  • Vision insurance.
  • Dependent life insurance.
  • Relocation assistance and expense program.
  • Employment opportunities upon permanent transfer of the employee.
  • Business travel accident insurance.

Domestic Partner Defined

A domestic partner is defined as a person in a "domestic relationship" with an employee or annuitant of the same sex under the OPM guidance. A "domestic relationship" is determined by a 9-point set of criteria, by which the partners:

  1. Are each other's sole domestic partners and intend to remain so indefinitely.
  2. Maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle).
  3. Are at least 18 years old and mentally competent to consent to contract.
  4. Share responsibility for a significant measure of each other's financial obligations.
  5. Are not married or joined in a civil union to anyone else.
  6. Are not the domestic partners of anyone else.
  7. Are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside.
  8. Are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received, as well as constitute a criminal violation.
  9. Are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.

The agencies may require documentation (such as a sworn affidavit) to establish the existence of a domestic partnership, but are not required to do so under the OPM guidance. Moreover, in deciding whether to require documentation, the agencies must take into consideration whether such a requirement is imposed on opposite-sex spouses consistent with the Administration's intention that domestic partners be treated the same.

Eligibility for Long-Term Care Insurance Program

As part of the same effort, federal regulations were issued by the OPM on June 1, 2010, to expand the term "qualified relative" under the Federal long Term Care Insurance Program to include same-sex domestic partners. The regulations incorporate the same definition of "domestic partner" as provided in the OPM guidance. As a result, effective July 1, 2010, domestic partners of federal employees and annuitants are eligible to apply for coverage under the program. The OPM will require documentation to demonstrate that the individual is a domestic partner.

Deloitte logoThe information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.

If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact:

Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955.

Copyright 2010, Deloitte.

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