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Same-sex marriages and domestic partnerships gain more recognition and employment benefits

August 1st, 2011  |  Lorene Park

Recent developments indicate that same-sex marriages and domestic partnerships are gaining more recognition, with the result that more employers will need to reconsider benefits eligibility for some employees. In July, for example, New York’s new law recognizing same-sex marriages took effect. Other states that recognize same-sex marriages include Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, and Vermont. Several states also recognize civil unions, granting those couples the same state level rights and benefits that are allowed for married couples. In addition, some states grant rights to domestic partners (generally, individuals who live together and support one another as spouses but who are not legally joined in a marriage or civil union). Most recently, Maryland Governor Martin O’Malley announced that he would sponsor same-sex marriage legislation in 2012 that would be focused on religious freedom and equality of marital rights.

In general, employment benefits that are available to partners in non-traditional relationships vary between states. For example, some states extend family leave to partners in civil unions and some to domestic partners, while others do not. At the federal level, the DOL has clarified that the FMLA allows employees to take leave for the birth of, to bond with, or to care for, the child of a domestic partner even if the employee has no biological or legal relationship with the child.

In addition, many employers voluntarily provide broad health plans that allow benefits for domestic partners and non-spouse dependents, even if not legally required to do so. In June, U.S. Representative Jim McDermott (D-Wash.) introduced H.R. 2088, which aims to bring parity and equal treatment under the Tax Code for these health plan beneficiaries. Currently, employers and employees pay higher federal taxes for health care benefits that are provided to domestic partners and non-spouse dependents. The Tax Parity for Health Plan Beneficiaries Act of 2011 would address this tax disparity.

Interestingly, the DOL Bureau of Labor Statistics’ annual survey of employee benefits, which was released last Tuesday, for the first time included information on domestic partner benefits. The survey shows that health benefits lag for domestic partners. While 71 percent of all workers in private industry have access to health care plans, only about 1 in 4 such workers have access to a health care plan they can use to cover their same-sex or opposite-sex domestic partner. High-wage earners and union workers are more likely to have access to benefits for a domestic partner, while only a small percentage of low wage-earners, non-union workers and part-time workers have access to these benefits. The data was compiled based on a survey of 15,000 public and private workplaces. Labor Secretary Solis noted the new data “reflects the diversity of work and workers in the United States.”

Because this area of the law changes rapidly, employers with questions about the impact of employees’ same-sex or domestic partnerships on benefits and other employment-related issues should consult a local attorney.

Update Spring 2012: Maryland and Washington have joined Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont in enacting laws recognizing same sex marriages.