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Domestic partner, same-sex benefits

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Ninth Circuit Rules ERISA Pension Plan Must Pay Survivor Benefits to Registered Domestic Partner
"[The] plan document specifically incorporated California law, which has long required that registered domestic partners be given the same rights, protections, and benefits under law as are granted to spouses. The terms 'spouse' and 'married' were not defined in the plan document.... The Court of Appeals held that the plan's incorporation of California law meant the term 'spouse' must include a domestic partner, and that neither ERISA nor the Code provided binding guidance that was inconsistent with that interpretation." [Reed v. KRON/IBEW Local 45 Pension Plan, No. 17-17176 (9th Cir. May 16, 2019; unpub.)] (Hanson Bridgett LLP)
Ninth Circuit Rules That Domestic Partner Under California State Law Had Spousal Rights Under an ERISA Plan
"In a very short written opinion, the Ninth Circuit found that neither ERISA nor the Internal Revenue Code contained a binding interpretation of 'spouse' after the Supreme Court found the Defense of Marriage Act (DOMA) to be unconstitutional.... [T]he Court found that because California law gave registered domestic partners the same rights as spouses and that was not inconsistent with ERISA or the Internal Revenue Code (again ignoring DOMA), the plan administrator should have interpreted the term 'spouse' to include registered domestic partners." [Reed v. KRON/IBEW Local 45 Pension Plan, No. 17-17176 (9th Cir. May 16, 2019; unpub.)] (Seyfarth Shaw LLP)
Does Your Retirement Plan Incorporate State Law Into the Plan? Check Your Spousal Benefit Obligations!
"[If] domestic partner rights are imported into the plan document, ... even in the absence of joint and survivor annuity provisions....domestic partner approval of plan loans and hardship withdrawals may be required, and QDRO procedures may have to be expanded. For this to be the case, the plan's choice of law provision must invoke the law of a state which grants to domestic partners rights equal to those of spouses, and the plan must also not define 'spouse' in a more limiting way, for instance by limiting the term to legally married couples." [Reed v. KRON/IBEW Local 45 Pension Plan, No. 17-17176 (9th Cir. May 16, 2019; unpub.)] (E is for ERISA)
Access to Employer-Sponsored Health Coverage for Same-Sex Spouses: 2018 Update
"In 2018, nearly two-thirds (63%) of employers offering health insurance to opposite sex spouses also offered coverage to same sex spouses and the share of employees with such access has increased over time so most (88%) now have access." (Henry J. Kaiser Family Foundation)
[Official Guidance] Text of OPM Final Regs: Federal Employees Health Benefits Program and Federal Employees Dental and Vision Insurance Program: Expiration of Coverage of Children of Same-Sex Domestic Partners
"Understanding that we have provided agencies with additional time for compliance given that overseas federal employees may not have been able to marry immediately following the Supreme Court decision, OPM is issuing a final rule removing references to domestic partners and domestic partnerships from the regulations. Based on the Supreme Court decision and the two additional year's lead time for domestic partners overseas to marry, the current language in the CFR is not needed and may be somewhat confusing. There is no change in coverage for children whose same-sex partners are married." (U.S. Office of Personnel Management [OPM])
May Terminating Employees Elect COBRA Coverage for Domestic Partners?
"[D]omestic partners -- unlike spouses -- do not qualify as qualified beneficiaries under COBRA and, therefore, do not have independent COBRA rights. But if you wish to provide continuation coverage rights like those provided to spouses, you may do so through plan design." (Thomson Reuters / EBIA)
Wisconsin Governmental Entities Now Prohibited from Offering Domestic Partners Benefits
"[T]he official passage of the 2017-2019 biennial budget [included] the creation of Wis. Stat. Section 66.0510, which prohibits all municipalities, counties, and school districts from offering employee benefit plan coverage to domestic partners of employees as of January 1, 2018.... [T]he Legislature pointed to the State's recent legalization of same-sex marriage as eliminating the need for government employers to offer benefit plans which cover domestic partners." (von Briesen & Roper, s.c.)
More Employers Are Requiring Same-Sex Couples to Marry to Receive Health Benefits
"In 2016 ... the number of employers offering health care benefits to unmarried same-sex couples has dropped. Employers report that: 31 percent are providing benefits to same-sex partners in civil unions (down 20 percent from 2014) 48 percent are providing benefits to same-sex domestic partners (down 11 percent from 2014)." (Wolters Kluwer Law & Business)
Texas Supreme Court Disputes Reach of Obergefell in Employee Benefits Case
"[T]he Texas Supreme Court held that Obergefell v. Hodges ... does not necessarily require state governments to extend marital benefits to same-sex married couples.... The Texas Supreme Court remanded the case, so the trial court could decide if the Constitution or Obergefell 'requires citizens to support same-sex marriages with their tax dollars.' " [Pidgeon v. Turner, No. 15-0688 (Tex. June 30, 2017)] (Seyfarth Shaw LLP)
[Guidance Overview] Health Benefits for Domestic Partners: Tax and Coverage Rules for Employers (PDF)
39 presentation slides. Topics include: [1] When are employers required to offer coverage to domestic partners, and what type? [2] What is a company-defined domestic partner, and what are the typical conditions? [3] What information can you ask for to verify domestic partner status? [4] How does imputed income apply depending on domestic partner type and tax dependent status? What are the differences between state and federal law? [5] What about account-based plans such as health FSAs, HRAs, and HSAs? (ABD Insurance & Financial Services)
Survivor Sues Employer for Failure to Offer Joint-and-Survivor Annuity to Domestic Partner
"The spouse of a deceased television station employee can proceed with breach-of-fiduciary-duty claims against his husband's former employer based on the employer's failure to inform the employee that he could elect a joint-and-survivor annuity under the company's pension plan ... [The couple] were not married when [the employee] retired ... but California law entitles registered domestic partners to the same legal rights, benefits and protections as married couples." [Reed v. KRON/IBEW Local 45 Pension Plan, No. 16-4471 (N.D. Cal. Dec. 5, 2016)] (Society for Human Resource Management [SHRM])
Some Employers Consider Ending Domestic Partner Benefits
"[L]arge employers overwhelmingly provide domestic partner benefits to same-sex couples (87% of respondents), and 64 percent of respondents offer them to opposite-sex couples. With marriage now legal for same-sex couples, 40 percent of those companies that participated in the poll are considering ending domestic partner benefits, while an equal number do not plan to end these benefits. Almost 15% of respondents have dropped domestic partner health benefits within the last two years." (The ERISA Industry Committee [ERIC])
The Retro-Effect: Outstanding Issues in Qualified Plan Recognition of Same-Sex Marriage as Highlighted by Schuett v. FedEx
"[This case] highlights the reality and potential impacts of a retroactive application of Windsor. Plan administrators and fiduciaries should remain aware of the possibility of claims brought under Title I of ERISA to enforce a benefits claim by a participant in a same-sex marriage who retired before the Windsor decision ... Furthermore, Plan administrators should be aware that plan amendments that provide for recognition of same-sex marriages beginning on the date of the Windsor decision will not protect the plan and fiduciaries from Title I claims stemming from events prior to the Windsor decision." [Schuett v. FedEx Corp., No. 15-cv-0189 (N.D. Cal. Jan. 4, 2016)] (Trucker Huss)
Is a Qualified Retirement Plan Required to Apply Windsor Retroactively?
"It is important to note that the court's decision in Schuett merely allows the surviving spouse to proceed with her breach of fiduciary claim against FedEx (in which she seeks declaratory and injunctive relief amounting to payment of the QPSA); it does not require FedEx to apply Windsor retroactively or pay a benefit to the spouse. Also notable is the fact that the court granted FedEx's motion to dismiss the spouse's other two claims. " [Schuett v. FedEx Corp., No. 15-cv-0189 (N.D. Cal. Jan. 4, 2016)] (Proskauer's ERISA Practice Center)
[Official Guidance] IRS Notice of Hearing on Definitions of Terms Relating to Marital Status
"This document provides notice of public hearing on proposed regulations relating to the holdings of Obergefell v. Hodges, 2015, Windsor v. United States, 2013, and a revenue ruling that define terms in the Internal Revenue Code describing the marital status of taxpayers. The public hearing is being held on Wednesday, January 27, 2016, at 10:00 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Friday, January 15, 2016." (Internal Revenue Service [IRS])
[Guidance Overview] IRS Provides Guidance on Application of Federal Tax Law to Employee Benefit Plans in Light of Obergefell Decision (PDF)
"Solely for federal tax law purposes, Obergefell does not require additional amendments to be made to qualified retirement plans or to health and welfare plans. However, [Notice 2015-86] provides helpful guidance in the event that an employer wishes to make discretionary changes to its plan and/or to allow employees to make mid-year cafeteria plan election changes in light of Obergefell -- and it reminds employers that there may be changes in the operation (as opposed to the form) of their health and welfare plans as a result of Obergefell." (Groom Law Group)
FedEx May Owe Same-Sex Spouse Pension Benefits
"FedEx Corp. may owe pension benefits to the widow of a worker who died a week before the U.S. Supreme Court struck down bans on same-sex marriage in 2013, a federal judge ruled. The judge found in her Jan. 4 decision that FedEx acted reasonably in interpreting its pension plan -- which, prior to 2013, limited spousal benefits to opposite-sex spouses. But she said the company's denial of benefits may have violated [ERISA], which now bars plans from distinguishing between same- and opposite-sex spouses." [Schuett v. FedEx Corp., No. 15-cv-0189 (N.D. Cal. Jan. 4, 2016)] (Bloomberg BNA)
IRS Provides Additional Guidance on Treatment of Same-Sex Marriages Under Benefit Plans
"[A] sponsor may want to amend its qualified retirement plans to provide additional benefits and protections for participants with same-sex spouses, such as offering a new joint and survivor annuity election in cases where the participant was previously required to begin receiving a single life annuity. Because these would be discretionary and not mandatory amendments, [Notice 2015-86] cautions that the amendments would be subject to the same funding restrictions (for defined benefit pension plans) and nondiscrimination tests that apply to all discretionary amendments.... For [health] plans that do offer spousal coverage ... the Obergefell decision may require the plan to recognize additional same-sex marriages and to extend coverage to additional spouses." (Pillsbury Winthrop Shaw Pittman LLP)
[Guidance Overview] Potential Year-End Amendment Required for Cafeteria Plans
"[IRS Notice 2015-86] confirms that Obergefell has minimal or no impact on most types of plans because of previously required same-sex marriage plan changes resulting from the United States v. Windsor decision. However, the IRS identified and provided guidance on a situation unique to cafeteria plans ... Employers who, in response to Obergefell, began providing coverage midyear under their cafeteria plan to the same-sex spouses of their employees, may need to amend their cafeteria plans by December 31, 2015." (Choate Hall & Stewart LLP)
[Guidance Overview] IRS Issues Guidance on Application of Obergefell Decision to Benefit Plans
"The IRS indicates in [Notice 2015-86] that in light of Windsor and the guidance issued thereafter, it does not anticipate any significant impact from Obergefell on the application of federal tax law to employee benefit plans. However, in a series of questions and answers in [this] Notice, the IRS does address certain issues relating to the amendment or administration of plans in response to Obergefell." (McGuireWoods LLP)
[Guidance Overview] IRS Notice on Obergefell Includes Permitted Cafeteria Plan Election Change and Guidance on Qualified Retirement Plans
"Notice 2015-86 confirms that Obergefell does not require changes to the terms of qualified retirement plans, and health and welfare plans. However, for calendar-year cafeteria plans that do not allow election changes due to significant improvements in coverage, but now wish to do so by the applicable deadlines, this guidance is arriving fairly late in the year and doesn't allow much time for plan amendments and election changes." (Practical Law Company)
[Official Guidance] Text of IRS Notice 2015-86: Application of Obergefell to Qualified Retirement Plans and Health and Welfare Plans (PDF)
"This notice provides guidance on the application of the decision in Obergefell v. Hodges to retirement plans qualified under section 401(a) of the Internal Revenue Code (Code) and to health and welfare plans, including cafeteria plans under section 125 of the Code. This guidance relates solely to the application of federal tax law with respect to same-sex spouses." (Internal Revenue Service [IRS])
Domestic Partnership Converted Retroactively to Marriage After Death Provides Basis for VA Spousal Benefits
"In a case that has obvious implications for employee benefit plans, the Veterans' Administration (VA) has just provided survivor benefits to the partner of a service member, even though the partners were not married before the service member's death.... The Obergefell decision allowed Krumbach to retroactively amend Hatcher's death certificate to show they were married. The VA then allowed the benefits to Krumbach as the surviving spouse.... [An] employer needs to give serious consideration to how it will currently treat same-sex marriages entered into before it changed its policies to recognize such marriages. [This article] focuses on steps the employer may consider to mitigate liability in the future[.]" (Calhoun Law Group, P.C.)
[Official Guidance] Text of OPM Final Regs: Federal Long Term Care Insurance Program Eligibility Changes
"[OPM] is issuing a final rule to amend the Federal Long Term Care Insurance Program (FLTCIP) regulation to expand ... the definition of 'qualified relative' to include opposite-sex domestic partners of Federal and U.S. Postal Service employees, annuitants, members of the uniformed services, and retired members of the uniformed services. In addition, this rule provides that adult children of domestic partners will be considered one of the types of individuals comprising the statutory term 'qualified relative' who may apply for FLTCIP coverage." (U.S. Office of Personnel Management [OPM])
[Guidance Overview] IRS Issues Proposed Regs to Accommodate Obergefell
"Similar to the IRS's previous guidance, the proposed regulations provide that registered domestic partnerships, civil unions and other similar relationships are not considered marriages for federal tax purposes. Also, marriages performed in a foreign jurisdiction will be recognized for federal tax purposes only if the marriage would be recognized by at least one state, possession or territory of the United States." (Proskauer's ERISA Practice Center)
[Guidance Overview] Health & Welfare Plan Update, September 2015 (PDF)
24 pages. Topics: [1] Top 10 H&W Benefit Developments for Summer 2015; and [2] Deep Dive on Cadillac Tax. (Alston & Bird LLP)
States Begin to Issue Guidance on Marriage Benefits
"Some states mention the payroll issues in their guidance and some states do not. All the states that issue guidance generally focus on income tax issues and sometimes other issues, such as pensions." [Article includes a summary of guidance issued by Alabama, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, and Ohio.] (Wolters Kluwer Law & Business)
Supreme Court Same-Sex Marriage Ruling Likely to Require More Changes to Benefit Plans and Payroll Practices (PDF)
"[The authors] are expecting some states to provide express guidance regarding when an employer may and/or must stop imputing income (including possibly on a retroactive basis) with respect to employer-paid same-sex spousal coverage. In the absence of such guidance, it appears employers should cease imputing income on a prospective basis in light of the Court's holding.... Claims for retroactive benefits may emerge or increase as a result of the Court's holdings in Windsor and Obergefell." (Groom Law Group)
Health and Welfare Benefits for Same-Sex Spouses After Obergefell: A New Mandate for Employers?
"[P]ost-Obergefell, the EEOC reaffirmed its position that discrimination based upon sexual orientation is unlawful discrimination 'based on sex' under Title VII ... [If] a private sector employer decided to offer health insurance benefits to opposite-sex spouses but not same-sex spouses, it seems very likely the EEOC would take the position that such a practice is unlawful sex discrimination under Title VII." (Bradley Arant Boult Cummings LLP)
Wal-Mart Sued for Retroactive Availability of Spousal Benefits for Same-Sex Spouses
"The lawsuit seeks compensation for medical expenses for the years in which Dee was denied spousal coverage.... The suit argues that because Wal-Mart would have provided Jackie with coverage for her wife [Dee] if she had been a man, failing to provide it because she is a woman constitutes sex discrimination.... The EEOC's Strategic Enforcement Plan (SEP) ... lists 'coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply' as an enforcement priority for FY2013-2016. In Jackie's case, the EEOC issued a final determination on January 29, 2015 that Wal-Mart's failure to provide spousal coverage of Dee constituted sex discrimination." (Calhoun Law Group, P.C.)
Governmental Plans: Moving Forward After the Obergefell Decision
"The Obergefell decision will now impact state level eligibility and benefit plan designs that are not governed by the qualification requirements of the Internal Revenue Code.... [T]he Supreme Court relied on the Fourteenth Amendment to find that state laws prohibiting same-sex marriage was unconstitutional.... For governmental plan administrators that have not yet extended same-sex spousal coverage under their health and welfare plans, the time may be ripe to consider amending these plan provisions." (Ice Miller LLP)
Non-Governmental Employer Considerations for Retirement Plan Administration After Obergefell
"In the absence of other guidance, a reasonable plan administrator might turn to the IRS's approach after Windsor (even if only by analogy) and set the 'compliance date' for Obergefell as the date of the Court's decision (June 26, 2015). That said, since the Obergefell decision will largely affect the tax laws of those states/jurisdictions that previously did not recognize same-sex marriage, each state or jurisdiction may issue its own guidance on the timing of the implementation[.]" (Ice Miller LLP)
Maryland Revamps Its in Vitro Coverage Mandate to Accommodate Same-Sex Couples
"Maryland same-sex couples who wanted to take advantage of a state law that requires insurers to cover pricey in vitro fertilization treatments used to face insurmountable obstacles.... This month, however, those restrictions were eliminated for married same-sex couples under a new law. It also prohibits insurers -- when they cover other types of fertility treatments -- from applying those conditions to same-sex couples. The law doesn't change the IVF coverage rules for married, heterosexual couples." (Kaiser Health News)
Will Domestic Partner Benefits Stay or Go After the Supreme Court Decision?
"More than half of employers (57.4%) offered benefits to same-sex domestic partners at the time of the ruling. Among those organizations, more than 70% are likely to continue providing those benefits and 30% are unlikely. What's the main reason 30% of employers are unlikely to continue providing benefits to same-sex domestic partners? They only offered it in the past because same-sex couples couldn't legally marry -- and now they can.... Almost half of employers (45.4%) offered benefits to opposite-sex domestic partners at the time of the ruling. Among those organizations, more than 80% are likely to continue providing those benefits and less than 20% are unlikely." (International Foundation of Employee Benefit Plans [IFEBP])
Same-Sex Marriage: Effect on Benefits
"Changes are now likely to be needed for state law benefits, such as leave laws, state health care continuation requirements and the like. Employers should also consider providing same sex spouses with all of the spousal benefits provided to opposite sex spouses, no matter if the spousal benefit is mandated by law." (Stinson Leonard Street)
Supreme Court Decision Provides New Financial Planning Opportunities
"The Supreme Court's decision creates several immediate new planning opportunities for same-sex married couples, particularly those who were previously married in another state but have been recently living in a state that did not recognize (or one of the 13 that outright banned) their marriage. Those couples will now be able to do everything from filing joint income tax returns, to benefit from the marital deduction for state estate and inheritance tax purposes, to get divorced if the couple decides to separate. In fact, for many such couples, a major planning issue will simply be unwinding the strategies previously in place to handle the fact that their marriage wasn't recognized, but are no longer necessary!" (Michael Kitces in Nerd's Eye View)
Same-Sex Marriage: A Practical Guide for Employers
"While issues will continue to arise, here are a number of things all employers should consider: Employee handbooks ... Taxes ... Health insurance ... Other benefits ... COBRA ... FMLA ... Pensions, qualified retirement accounts, and IRAs." (Goldberg Segalla)
The Same-Sex Marriage Ruling: Key Employee Benefits Take-Aways
"State insurance laws may require insurance carriers to offer same-sex spouses the same coverage and benefits that they offer to opposite-sex spouses.... A self-funded medical plan that is not subject to state insurance laws, but is subject to non-discrimination laws, may be required to cover same-sex spouses if the plan covers opposite-sex spouses.... Same-sex spouses would ... be able to obtain Qualified Domestic Relations Orders assigning portions of retirement plan accounts to current or former spouses or to the children of the same-sex marriage.... Same-sex couples will be able to adopt children as couples ... so benefit plans that provide coverage to adopted children of an employee will cover the children of the family.... Children of a same-sex spouse probably will be step-children of the employee and entitled to benefits offered to step-children." (Ogletree Deakins)
Fate of Domestic Partner Benefits in Question After Marriage Ruling
"[A] national right to marry calls into question the fate of domestic partner benefits. Though it is unclear what most employers will decide, some companies are likely to deliver what feels like an ultimatum, at least to some: Marry within a certain time frame, or lose your partner's health care coverage. Some large employers -- including Verizon, Delta Air Lines, IBM and Corning -- already have." (The New York Times; subscription may be required)
Effect of the New York State Marriage Equality Act on Health Insurance Coverage
"On July 24, 2011, New York State began licensing same-sex marriages under the state's Marriage Equality Act ... This study investigated the association between legalizing same-sex marriage in New York and changes in health insurance coverage in men and women.... Compared with men in opposite-sex relationships, same-sex marriage was associated with a 6.3 percentage point increase in [employer-sponsored insurance (ESI)] ... for men in same-sex relationships ... Same-sex marriage was also associated with an 8.9 percentage point increase in ESI ... for women in same-sex relationships vs. women in opposite-sex relationships." (JAMA)
Employee Benefits Effects of Supreme Court Same-Sex Marriage Decision
"On June 26, 2015, the Supreme Court struck down all state bans on same-sex marriage ... For employers, this decision raises the issue of what changes must be made in employee benefits ... [This article] will look at three categories of employers: those that have already been offering benefits to same-sex spouses, those that have not previously offered benefits to same-sex spouses, and those that have been offering benefits to domestic partners." [Obergefell v. Hodges, No. 14-556 (U.S. June 26, 2015)] (Calhoun Law Group, P.C.)
The Impact of Same-Sex Marriages on Benefit Plan Administration
"If the Court concludes that same-sex couples have a fundamental right to marriage or that states must recognize same-sex marriages lawfully performed out-of-state, then health plans that define a spouse as a member of the opposite sex will need to be amended to cover lawfully married same-sex spouses. In addition, employers would no longer be able to cherry pick the types of spousal benefits they provide and would have to make available the same benefits to same-sex married couples that they currently offer opposite-sex married couples." (Bloomberg BNA)
EEOC May Pursue Federal Right to Equal Coverage for Same-Sex Spouses and Transgender-Related Procedures
"[A recent internal] memo states that the EEOC is interested in litigating charges regarding issues of 'first impression' such as benefit coverage for same-sex couples and insurance benefits afforded to transgender individuals. While ERISA (and other current federal law) does not require benefit plans that provide benefits to opposite sex spouses to provide equivalent coverage to same-sex spouses, the EEOC clearly believes that such a right is found Title VII. The EEOC will likely argue that failure to provide such coverage constitutes sex discrimination because entitlement to coverage turns on the sex of the employee's spouse." (Seyfarth Shaw LLP)
Texas Court Halts Enforcement of New FMLA Rule Extending Leave Rights to Same-Sex Couples
"In issuing its order, Judge Reed O'Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas [attorney general's] claim. The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court's injunction." (FMLA Insights)
[Guidance Overview] DOL Extends FMLA Rights to Same-Sex Spouses (PDF)
"The change to a place of celebration rule has implications beyond spousal leave.... [An] eligible employee would be entitled to FMLA leave to care for the child of a same-sex spouse regardless of whether the employee satisfies the in loco parentis requirement of providing day-to-day care or financial support for the child. An eligible employee would also be entitled to leave to care for a parent's same-sex spouse, whether or not the stepparent ever stood in loco parentis to the employee." (Buck Consultants at Xerox)
[Guidance Overview] FMLA Modified to Protect Same-Sex Spouses Regardless of Employees' State of Residence
"The revised law is expected to reduce the administrative burden on employers that operate in more than one state or have employees who move among states with different marriage-recognition rules. Employers will no longer need to consider the employee's state of residence to determine the employee's FMLA eligibility. Employers will simply need to know the marriage laws of the states or countries in which the marriages at issue were entered." (McGuireWoods LLP)
[Guidance Overview] If Legally Married Somewhere, Then Legally Married Everywhere Under the FMLA
"[E]mployers should take the following steps before March 27, 2015... Review any language in your benefit plans related to FMLA leave... Ensure that those administering FMLA leave are familiar with the change in the law and adjust their practices accordingly.... Review any ongoing leaves for which FMLA leave has been denied due to the definition of a spouse in the current regulations and consider whether the leave should be approved going forward as of March 27, 2015." (Ice Miller LLP)
[Guidance Overview] DOL Announces a Revised Definition of 'Spouse' for FMLA Purposes
"This latest rule change, which takes effect on March 27, 2015, shifts to a 'place of celebration' approach and ensures that same-sex spouses have the same rights as all spouses to exercise FMLA rights. In other words, as long as the employee is legally married, and regardless of the legal status of same-sex marriage in the state the employee now resides, the employee can take FMLA leave: to care for a same-sex spouse with a serious health condition; to care for a stepchild who is the child of a same-sex spouse; to care for a stepparent who is the same-sex spouse of the employee's parent; due to a qualifying exigency related to the same-sex spouse's covered military service; or to care for a covered servicemember who is a same-sex spouse." (Bond Schoeneck & King)
[Official Guidance] Text of CMS Ruling: Implementing U.S. v. Windsor for Purposes of Entitlement and Enrollment in Medicare Hospital Insurance and Supplementary Medical Insurance
"Note that the rules for recognizing a same-sex marriage (and treatment of a same-sex relationship that is not a marriage) for purposes of eligibility and entitlement controlled by Title II of the Social Security Act (the Act) are different than the rules for recognizing a same-sex marriage (and treatment of a same-sex relationship that is not a marriage) for benefits provided under Title XVIII of the Act.... CMS has adopted a policy of interpreting sections 1818(d), 1837(i) and 1839 of the Act in a manner that treats same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible and uses a celebration rule where possible. 'Celebration rule' means that a same-sex marriage is recognized and treated as a lawful marriage (where marital status is relevant to a determination of entitlement) if the same-sex marriage was lawful where and when it occurred. Individuals in non-marital same-sex relationships (such as domestic partnerships or civil unions that are not marriages) are not considered married.... This Ruling is effective on February 9, 2015, with respect to appeals on, initiated, or reopened in accordance with applicable rules after February 9, 2015, for entitlement and enrollment determinations made on or after June 26, 2013. This ruling does not apply to appeals of entitlement and enrollment determinations made before June 26, 2013." (Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS])
Employers Debate Changes to Domestic Partner Benefits for Employees in States Where Same-Sex Marriage Is Legal
"Considering that 36 states and the District of Columbia now allow same-sex marriage for gay and lesbian couples, should the rules change when it comes to organizations' domestic-partner coverage? Would companies be overreaching if they require LGBT employees and their partners who live in those states to get married if they want to retain partner benefits?" (Human Resource Executive Online)
Employers Debate the Merits and Challenges of Changing Domestic Partner Benefits
"Considering that 36 states and the District of Columbia now allow same-sex marriage for gay and lesbian couples, should the rules change when it comes to organizations' domestic-partner coverage? Would companies be overreaching if they require LGBT employees and their partners who live in those states to get married if they want to retain partner benefits?" (Human Resource Executive Online)
Federal District Court in California Asked to Determine Retroactive Applicability of United States v. Windsor
"The IRS has stated its position. In Notice 2014-19, the IRS stated that retirement plans are not required to recognize same-sex spouses prior to June 26, 2013, the date of the Windsor decision. However, the IRS permits employers to amend their plans to reflect the outcome of Windsor prior to June 26. In other words, employers can provide retroactive benefits, but they are not required to do so. It seems unlikely that the California district court, and perhaps ultimately the Supreme Court, would take a position different from the IRS. Nonetheless, employers should keep a close eye on the outcome of the decision. If the court finds that Windsor should be applied retroactively to employee benefits, it is possible that many other suits may be filed, and those suits may not be limited to surviving spouse benefits." (Bass, Berry & Sims)
Second Circuit Affirms that Health Plan's Same-Sex Spouse Exclusion Does Not Violate ERISA
"On December 23, 2014, the U.S. Court of Appeals for the Second Circuit upheld the District Court's dismissal of plaintiffs' claims alleging that the same-sex spouse exclusion in the employer's self-insured medical plan violated Section 510 of [ERISA] and also dismissed plaintiffs' breach of fiduciary duty claim under Section 404 of ERISA.... Employers considering such an exclusion for their self-insured plans should note that the decision is expressly limited to consideration of the ERISA claims and both the District Court and Second Circuit declined to address whether the exclusion is constitutional or valid under any other federal or state law." [Roe v. Empire Blue Cross Blue Shield, No. 14-1759-CV (2d Cir. Dec. 23, 2014; unpublished)] (Benefits Bryan Cave)
Supreme Court to Address Same-Sex Marriage: Effect on Employer-Sponsored Group Health Plans (PDF)
"In the context of employer-sponsored group health plans, such a decision by the Court would affect employees residing in a state that currently does not recognize same-sex marriage (and imposes a state income tax). In these states, the Court's decision ... would: [1] Eliminate the requirement for employers to impute state income tax in the amount of the employer's contribution toward a same-sex spouse's coverage, and [2] Allow employees to pay for the same-sex spouse's coverage on a pre-tax basis for state income tax purposes. The Court's decision may also lead to more state insurance mandates requiring fully insured plans to offer coverage to same-sex spouses on the same terms as opposite-sex spouses." (ABD Employee Benefits)
Popular Southern Grocery Chain to Offer Same-Sex Health Benefits
"More gay and lesbian married couples living in conservative Southern states can get health benefits -- so long as they work for Publix. The grocery chain is one of the largest in the south, with stores in three states that ban same-sex marriage: Alabama, Georgia and Tennessee. Starting in January, even employees in those states can enroll their spouses in the company's health and dental plans -- as long as they were married in a different state." (
Group Health Plans for Same-Sex Spouses: Equal Treatment Required or Not?
"[O]ffering group health benefits to traditional 'spouses' while denying those same benefits to same-sex couples would likely result in litigation under Title VII and possibly even state discrimination laws.... [In] one case, Hall v. BNSF Railway Co., ... a plaintiff employee had already successfully made such a claim.... Employers that offer group health insurance coverage to opposite-sex spouses would be well-advised to seriously consider expanding that right to all legally married employees, or face the risk of a claim under Title VII." (McAfee & Taft)
Impact on Employee Benefit Plans of the Supreme Court's Recent Actions on Marriage
"[F]or employee benefit plan issues that are not dictated by the Code or ERISA -- such as designing the eligibility of a health or welfare plan -- the recent Supreme Court decision does not directly impact an employer's ability to decide whether to extend coverage to a same-sex spouse. As the law stands today, sponsors of self-insured health plans may continue to choose whether or not to offer coverage to same-sex spouses (and a state law that provides otherwise should be preempted by ERISA).... [This article includes] a list of the protections and rules that currently apply under ERISA and the Code to 'spouses,' using the IRS's and DOL's definition that looks to the state of ceremony for determining the legality of the marriage." (Ogletree Deakins)
More States Recognize Same-Sex Marriages But No Mandate Yet for Self-Funded ERISA Plans to Extend Coverage to Same-Sex Spouses
"Although states may have insurance, domestic relations, and nondiscrimination laws that require recognition of same-sex marriages, ERISA preemption appears to invalidate those requirements as they would apply to a self-funded ERISA plan. Plan sponsors choosing an insured plan might not have a choice, because of the way these laws impact insurers." (Lockton)
[Official Guidance] Text of OPM Proposed Regs: Federal Employees' Group Life Insurance Program -- Providing Option C Coverage for Children of Same-Sex Domestic Partners
"[OPM] is issuing a proposed rule to amend the Federal Employees' Group Life Insurance (FEGLI) regulations to allow children of same-sex domestic partners living in states that do not allow same-sex couples to marry to be covered as family members under an eligible individual's FEGLI Option C enrollment. This rule expands the circumstances under which an employee experiencing a change in family circumstances may include eligible children of a same-sex domestic partner." (U.S. Office of Personnel Management [OPM])
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