Colorado Civil Unions Act Raises Questions, Has Immediate and Delayed Effects on Employers

The Colorado Civil Unions Act becomes effective May 1. Changes going into effect May 1, which are relevant to employers, give parties to civil unions:

• protection from discrimination under the Colorado Anti-Discrimination Act based on spousal status;
• workers’ compensation benefits;
• the right to be treated as a family member or spouse for purposes of unemployment benefits;
• eligibility for group benefit plans for state employees under the State Employees Group Benefits Act,
• the right to designation as a beneficiary under the state public employees’ retirement system;
• survivor benefits under local government firefighter and police pensions, and
• family leave benefits (however, see below regarding the federal Family and Medical Leave Act).

The two changes most concerning to MSEC members are the requirements to offer parties to civil unions participation in life insurance plans and “health coverage plans,” if spouses are offered coverage. These changes are effective for plans issued, delivered, or renewed on or after January 1, 2014. What constitutes a “health coverage plan” is not defined, and this is a remaining question that we hope to receive further guidance on from the Colorado Division of Insurance this year.

Employers should note that the Act gives parties to civil unions new rights under Colorado law—not under federal law. Federal law must be examined separately to determine its effect on parties to civil unions. For example, the Act acknowledges that until the current definition of marriage changes under federal law, federal law prohibits the filing of joint tax returns by unmarried individuals, and because Colorado income tax is tied to federal income tax, parties to civil unions will not be able to file joint federal or Colorado tax returns. As another example, the federal FMLA defines spouse as “husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Amendment 43 to Colorado’s Constitution defines marriage as between one man and one woman. As a result, parties to civil unions are not eligible for FMLA leave. However, if Colorado HB 13-1222 passes, this new state law would grant leave to parties to civil unions and domestic partners.  

Along with the definition of “health coverage plan,” MSEC is compiling a list questions for submission to the Division of Insurance. We will keep you updated as information is received. Watch for further discussion of the Colorado Civil Unions Act in our upcoming May Bulletin.