Same-sex marriage: Know the impact on policies, benefits

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in Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources

Issue: How to sort out federal law and emerging state and local rules on same-sex marriages and unions.

Benefit/risk: You don't need to extend federally administered benefits to same-sex couples, but state-run benefits may be a different story.

Action: Review your benefit plan's definition of "spouse," and be ready to alter your organization's policy if your state or local law changes.

While most debate on the current same-sex marriage controversy centers on whether it's "legal or moral," you face a different question: How do gay couples fit into workplace policies involving everything from family leave to medical benefits?

Even though the validity of these marriages remains in question, the issue has employers scrambling to review their benefits plans' eligibility criteria.

One thing's for sure: Same-sex unions won't affect benefits and laws administered by the federal government, such as Social Security, COBRA or retirement plans that are subject to ERISA.

That's because the federal Defense of Marriage Act of 1996 defined marriage as a male/female union for federal benefits. So same-sex partners aren't recognized as spouses, regardless of which approach your state adopts.

But many other employee benefits are administered on the state level. Those include group health coverage, workers' compensation and unemployment compensation.

Employers in states with laws that define marriage as a male/female union would be allowed to deny employee requests for benefits for their same-sex partners.

In a state that permits same-sex marriages, employers who provide benefits to employees and spouses will need to review their benefit plans to determine how a "spouse" is defined.

Typically, benefits plans define "spouse" as someone who is legally married to the covered employee under state law. Under that definition, a same-sex spouse of a covered employee would be entitled to benefits.

For more details on this issue and a map of related state laws, visit the National Conference of State Legislatures' site, www.ncsl.org/programs/cyf/samesex.htm.

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