Since the United States Supreme Court decided Obergefell v. Hodges in 2015, many employers around the country have had to readjust their employment benefits. Prior law had permitted some states to refuse same-sex couples the right to marry. Consequently, employers could also deny spousal benefits to same-sex couples. As a result of the legalization of same-sex marriage, employers that offer benefits to employees with opposite-sex spouses must also extend these benefits to same-sex spouses. To exclude spouses from employee benefits on the basis of their sexual orientation violates the Fourteenth Amendment.
Under the Affordable Care Act, your employer must provide you with health insurance. (While the future of this law is uncertain in the current political climate, it remains in effect at the time of this writing.) However, the federal law doesn’t require that employers offer health coverage to their employees’ spouses. An insurance plan can legally exclude all spouses of all employees from health coverage, unless state law specifically requires spousal coverage. This means that in most cases employers can offer health coverage to all their employees’ spouses, irrespective of orientation, but they can also choose not to offer health coverage to any spouses. If an insured employee is terminated, the employee and a covered spouse can continue health coverage through COBRA, also irrespective of sexual orientation.
Adding another wrinkle, if your employer is self-insured, there is currently no clear legal requirement that a self-insured employer provide coverage for a same-sex spouse. This is an area where future employment discrimination litigation will determine whether a self-insured company must provide benefits to same-sex spouses.
Many employers around the country are required to carry workers’ compensation insurance for employees. Workers’ compensation benefits include spousal benefits in case an employee dies on the job. Where an employer is required to provide workers’ compensation coverage, death benefits are now available to same-sex spouses.
If an employer offers you a Health Savings Account, Health Reimbursement Account, or Flexible Spending Account, these benefits are also impacted by the Supreme Court ruling. These accounts permit tax-free reimbursements of your spouse’s medical expenses. Like opposite-sex spouses, same-sex spouses can contribute up to the maximum family contribution.
Under the Family and Medical Leave Act (FMLA), covered employers must give eligible employees dealing with a medical condition or a close family member’s medical condition 12 weeks of unpaid leave, during which time the employee will be safe from termination or various adverse consequences. Covered employers include public agencies, local education agencies, and private employers that consist of at least 50 employees during 20 or more weeks in the current or prior year.
If your employer is covered and you are eligible (and not a “key employee,” as defined by FMLA), you are entitled to take time off work to care for a same-sex spouse with a serious health condition. The FMLA is enforced by the Wage and Hour Division of the US Department of Labor’s Employment Standards Administration. You can file a complaint with the Division about your employer if it fails to meet its obligations under FMLA, but you can also bring a private civil lawsuit against an employer for violations. Those who work for smaller employers will not be able to assert FMLA rights.
Pension plans covered by ERISA must provide qualified joint and survivor annuities when an employee is married. Both the employee and spouse can consent to waive this requirement. Other retirement plans, such as 401(k) plans, must provide these annuities or else offer the totality of the participant’s account balance at death to a spouse. Similarly, retirement plans such as 401(k)s need to provide qualified joint and survivor and qualified preretirement survivor annuities. Any of these benefits provided to employees’ opposite-sex spouses must also be provided to employees’ same-sex spouses.
However, neither government plans nor church plans are required to provide a qualified joint and survivor or qualified preretirement survivor annuity, nor must they provide spousal benefits at death. Accordingly, these benefits need not be provided to same-sex spouses either.
Some employers offered domestic partner benefits to same-sex couples, particularly before the legalization of same-sex marriage. Often only same-sex domestic partners were offered these benefits. However, in states where same-sex marriage was legalized before the Supreme Court ruling, the trend has been to discontinue domestic partner benefits because they are harder to administer and have negative tax implications. The decision about whether to continue these benefits is within your employer’s discretion. It is expected that decisions will continue to be made in part based on the tax consequences to the employer.
