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Posted on May 25, From toa series of Supreme Court cases and government updates have changed the landscape of the way employers must consider same-sex spouses in relation to employee benefits. Most recently, in Junethe Supreme Court ruled in Obergefell v. Hodges, that the 14th Amendment requires a state to a marriage between two people of the same sex, and to recognize a marriage between two people of the same sex when their marriage was lawfully d and performed out of state.
Hodges, approximately two-thirds of states recognized same-sex marriage whether performed within the state or another state or country that recognizes same-sex marriage. This definition was set to go into effect across the United States on March 27,but litigation in Texas, Arkansas, Louisiana, and Nebraska prevented the new rule from going into effect in those states immediately. After the ruling in Obergefell, which severely undermined the arguments of the objecting states, the injunction was dissolved.
In Junethe Supreme Court ruled that the Defense of Marriage Act DOMAwhich provided that, for federal law purposes, marriage could only be between a man and a woman, was unconstitutional. For individuals with a same-sex spouse validly married in a state allowing same-sex marriage who reside in a state that did not ly recognize same-sex-marriage, the ruling in Obergefell likely triggered a change in status event for Section plans.
That is because, as of June 26,the individual was considered married under state law, whereas they were not the day before. As a result of these changes, employers need to review the eligibility requirements in their group life and health plans, Section plans, and health reimbursement arrangements.
Opinions differ as to whether an employer may continue to write its self-funded plans to exclude same-sex spouses. To date there is only one court case that addresses this issue — in that case, the court held that a self-funded plan that specifically limited eligibility to opposite-sex spouses was not required to provide coverage to a same-sex spouse because ERISA does not prohibit discrimination based on sexual orientation.
May 1, An employer that wishes to limit coverage under its Sectionhealth reimbursement arrangement HRAor group health plan to opposite-sex spouses should:. However, self-funded plans that cover opposite sex spouses and do not cover same-sex spouses have high exposure to individual lawsuits.
Most practitioners agree that fully insured plans are required to cover same-sex spouses. Employers should contact their carrier to verify this approach.
The questions and answers that relate to benefits begin with Question The Department of Labor, the Department of Health and Human Services, and the Internal Revenue Service have issued several notices that explain how same-sex spouses must be treated for purposes of Section plans, including flexible spending s FSAs and health savings s HSAs. The regulatory agencies only recognize actual marriages of same-sex spouses. Prior to the change, the law of the state in which the employee lives when FMLA is requested would apply.
This means that an employee who was legally married to a same-sex spouse but who moved to a state that does not recognize same-sex marriages was not entitled to FMLA to care for the same-sex spouse. This change means that the same criteria for determining whether an employee is legally married will apply to both benefits and FMLA eligibility determinations.
For individuals married outside of the United States, the regulations will also apply to any marriages that were legal in the country in which they were performed, as long as the marriage could be legally entered into in at least one state. A simple statement by the employee may be sufficient, although the employer may request that a statement be put in writing.
Implication for Employers For individuals with a same-sex spouse validly married in a state allowing same-sex marriage who reside in a state that did not ly recognize same-sex-marriage, the ruling in Obergefell likely triggered a change in status event for Section plans. An employer that wishes to limit coverage under its Sectionhealth reimbursement arrangement HRAor group health plan to opposite-sex spouses should: Verify that the plan and summary plan description are written to clearly limit eligibility to opposite sex spouses Check their state and local laws to be sure that there is not a state or local law that prohibits discrimination based on sexual orientation Recognize that there is a risk that this decision will be challenged by the Equal Employment Opportunity Commission or an employee However, self-funded plans that cover opposite sex spouses and do not cover same-sex spouses have high exposure to individual lawsuits.
Specifically, A new same-sex marriage is a change in status event that allows a mid-year change to pre-tax and health and dependent care FSA elections consistent with the marriage. As of the date of the marriage, imputed income for covering the new same-sex spouse who may have been covered ly as a domestic partner ends.
This information is general and is provided for educational purposes only. It is not intended to provide legal advice.
You should not act on this information without consulting legal counsel or other knowledgeable advisors.