Same-Sex Spouses Now Covered by ERISA, DOL Says

Author: Tracy Morley, XpertHR Legal Editor

September 20, 2013

Same-sex spouses are now eligible for the same benefits and protections as opposite-sex spouses under employer health plans, retirement plans other benefits covered under the Employee Retirement Income Security Act (ERISA).

Technical Release No. 2013-04, issued by the US Department of Labor's Employee Benefits Security Administration (EBSA), states that the terms spouse and marriage in Title I of ERISA and other regulations under EBSA's jurisdiction such as COBRA and HIPAA, now include same-sex couples who were married in any state or foreign jurisdiction that recognizes such same-sex marriage, regardless of where the employee and his or her same-sex spouse reside. Employers should note that the terms spouse and marriage do not include individuals in other relationships recognized by a state that are not designated a marriage under state law, such as domestic partnerships or civil unions.

Basing the definition of spouse on the state in which the marriage was celebrated rather than the state in which the couple resides provides employers a more uniform and predictable way of administering benefits, according to the DOL.

"A rule for employee benefit plans based on state of domicile [would have raised] significant challenges for employers that operate or have employees (or former employees) in more than one state or whose employees move to another state while entitled to benefits," the guidance states. "Furthermore, substantial financial and administrative burdens would be placed on those employers, as well as the administrators of employee benefit plans.

According to Secretary of Labor Thomas E. Perez, "this decision represents a historic step toward equality for all American families, and I have directed the department's agency heads to ensure that they are implementing the decision in a way that provides maximum protection for workers and their families." Perez also stated, "[T]he department plans to issue additional guidance in the coming months as we continue to consult with the Department of Justice and other federal agencies to implement the decision."

The EBSA guidance represents the latest regulatory guidance issued since the Supreme Court's decision in United States v. Windsor in June. In earlier guidance, the DOL confirmed same-sex spouses' entitlement to leave under the Family and Medical Leave Act. Subsequent guidance issued by the Internal Revenue Service and the US Department of Treasury provided guidance surrounding the taxation and administration of employee benefit plans raised by the Court's decision.