The Impact of the DOMA Decision on Benefits

DOMAWith the implementation of the Affordable Care Act (ACA) and the many considerations and expanded administrative responsibilities it brings to employers, providing health care benefits continues to get more complicated. Now, new questions have arisen over what happens when a partner is not a spouse? What happens if the spouse is of the same gender? Although the ACA allows employers to forgo offering spousal coverage, many employers consider such coverage an essential part of their benefits packages. What should your considerations be when you have employees who are not married to their partners or are in same-sex marriages?

In 2013, the U.S. Supreme Court ruled in U.S. v. Windsor that Section 3 of the Defense of Marriage Act or DOMA, providing that only persons of the opposite sex could be recognized as “spouses” for purposes of federal law, was unconstitutional. This meant same-sex spouses were not eligible for numerous employee benefits governed by federal law, including ERISA, HIPAA, the Internal Revenue Code (IRC), COBRA, and FMLA – just to name a few.

The definition of “marriage” and “spouse” is now set by each respective state. Notably, the Windsor decision did not disturb Section 2 of DOMA which permits states to refuse to recognize same-sex marriages performed under the laws of other states. This has left employers with a patchwork of conflicting state laws. In addition to the states that recognize civil unions or domestic partnerships, 17 states and the District of Colombia have laws or
judicial decisions recognizing same-sex marriages. 33 states, including Colorado, Wyoming, and Arizona, have laws or state constitutional amendments prohibiting same-sex marriage. In many of these states, legal challenges have been filed or efforts have begun to overturn state constitutional provisions barring the recognition of same-sex marriages.

While regulatory guidance continues to be issued and legal challenges are pending, employers have important decisions to make. Are they going to offer benefits to spouses? Are they going to offer benefits to unmarried partners same or opposite sex? What happens if you have an employee who was legally married in a state that recognizes same-sex marriages, but resides in a state, such as Colorado, that does not? Do you have to offer separate plans in different states in which you operate depending on each state’s marriage laws? Does it matter whether you have a fully-insured or self-insured plan? Answers to these questions depend, in part, on each employers’ benefits’ philosophy and the impact on their employee population.

This year’s Benefits Update Conference will feature a review of where the Affordable Care Act stands now, as well as a session specifically reviewing the impact of the 2013 DOMA decision on employee benefits.