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The legal definition of ?spouse? as used in many employment and benefits contexts has changed considerably since 2004. Marriage is now available for same-sex couples in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont, and is also recognized by New York and the District of Columbia.

As a result, employers across the country must reassess their employee benefits with respect to same-sex spouses.  This resource examines the interplay between inconsistent state and federal laws and an individual employer’s benefits and also suggests how employers can proactively address changing laws to ensure same-sex spouses are provided equal benefits, including eligibility, enrollment and tax treatment of benefits, where possible.

Ultimately, employers that prohibit discrimination based on sexual orientation and/or marital status can and should:

• Modify any definition of ?spouse? in benefits programs throughout all U.S. operations to include same-sex spouses, rather than requiring employees with same-sex spouses to participate in a separate partner benefits program with separate requirements for eligibility;
• Maintain partner benefits programs in states that recognize same-sex spouses to accommodate employees who choose not to marry due to the inconsistencies among state laws and federal laws; 
• Modify enrollment requirements to ensure that any necessary documentation asked of same-sex spouses does not exceed that of opposite-sex spouses: if a marriage license is not required to enroll an opposite-sex spouse, it should also not be required for a same-sex spouse; and 
• Amend plan documents and other benefits communications to align with these changes.
  

Changing laws defining marriage will affect employers throughout the United States, including employers that:

• Have some or all operations in states that grant or recognize marriage licenses for same-sex spouses;
• Recruit employees from states that grant or recognize marriage licenses for same-sex spouses; 
• Purchase insurance in states that grant or recognize same-sex spouses; or 
• Have employees married to a same-sex spouse, irrespective of the employees’ states of residency or employment.
  

Employers’ Discretion in Determining Benefits Eligibility

Non-government employers can individually decide whether or not to provide health coverage to their employees, and can also decide whether or not to extend that coverage to different-sex spouses or partners of employees, same-sex spouses or partners of employees, children of employees and so on.

No federal or state law prohibits private employers from extending health insurance and most other spousal benefits to same-sex spouses. Federal law does, however, determine the treatment of benefits with respect to federal employee income and employer payroll taxes, and state law often — but not always — follows federal law with respect to state income taxes.

Many major businesses offer benefits to same-sex partners of employees throughout the U.S., including a majority of Fortune 500 companies. A 2005 Hewitt Association study found that a majority of employers it surveyed offer benefits to unmarried partners; the majority of these (58 percent) offer benefits to both same-sex and different-sex unmarried partners. Of those that only offer benefits to same-sex partners, some have stated they do so only because
such employees are ?unable to marry.

Read More  (PDF)

Marriage for Same-Sex Couples: Considerations for Employers   
Human Rights Campaign Foundation | www.hrc.org/workplace 

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