The Herald Bulletin

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July 5, 2013

Same-sex ruling has employers tweaking benefits

WASHINGTON —  The Supreme Court's landmark ruling on same-sex marriage has private employers around the country scrambling to make sure their employee benefit plans comply with the law.

The impact of the decision striking down part of the federal Defense of Marriage Act is clear in the 13 states and the District of Columbia where gay marriage is currently legal or soon will be: Same-sex married couples must be treated the same as other spouses under federal laws governing tax, health care, pensions and other federal benefits.

But employee benefit experts say the effect of the ruling remains murky in the other 37 states. The court left intact another provision of the federal anti-gay marriage law that allows one state not to recognize a same-sex marriage performed elsewhere.

"What's the federal government going to do when you have a valid marriage in New York and the couple moves to Texas? We don't know the answer to that," said Scott Macey, president of the ERISA Industry Committee that represents large employers.

The confusion is creating uncertainty for many companies that operate nationwide and want to administer benefit plans in a uniform manner.

"My members are all across the country," Macey said. "Most, if not all of them, would prefer to have a consistent rule across the country. They don't want to worry about changing things from state to state."

For workers living in states that have legalized same-sex marriage, the Supreme Court's decision means gay spouses are entitled to a host of benefits they were denied previously. The decision extends pension and Social Security survivor benefits to same-sex spouses, grants equal access to the Family and Medical Leave Act and gives employees married to same-sex spouses the guarantee of uninterrupted health care coverage under the federal COBRA health benefits program.

Same-sex couples can also get the same tax break on health coverage that other couples have been receiving. Before the court's ruling, same-sex spouses covered by employer health plans had to pay taxes on the benefits they received, which on average added up to an extra $1,000 year. And employees now will be able to seek reimbursement from flexible health spending accounts for the medical expenses of gay spouses.

"This affects a thousand laws and regulations that touch employee benefits," said Bruce Elliott, manager of compensation and benefits at the Society for Human Resource Management, an industry association.

But many questions were left unanswered by the court. What happens if an employee lives in Maryland, which allows same-sex marriages, but works in neighboring Virginia, which doesn't? What happens to an employee who has a valid gay marriage in Iowa, but then moves to Alabama, which doesn't recognize same-sex marriages?

"It answers one question and raised many more," said Susan Hoffman, a Philadelphia attorney who focuses on employee benefits. "There may be pressures on the employer, but there is no legal mandate."

About 62 percent of Fortune 500 companies already offer same-sex domestic partner health benefits, according to the gay advocacy group Human Rights Campaign. More of those companies, and perhaps smaller firms, could decide to extend those benefits in light of the court's decision.

Several companies that already offer domestic partner benefits told The Associated Press that they did not plan any immediate changes. That includes Ford Motor Co., which has offered same-sex benefits to hourly and salaried employees since 2000, spokesman Jay Cooney said.

At glass manufacturer Corning Inc. in New York, spokesman Daniel Collins said the company has been in the process of revising its policies as different states legalize gay marriage. For now, though, it plans to keep its domestic partner benefits until it has more guidance.

"It's so new and actions are occurring so quickly," Collins said.

Verizon spokesman Ray McConville said the company was still evaluating the decision.

Hoffman said the legal ambiguities will have to be resolved in future court decisions as gay couples seek to protect their benefits in states that don't recognize same-sex marriages performed in other states.

Macey said the federal government could go a long way in clarifying things when it issues regulations establishing how the court ruling should be implemented. The court seemed to leave it up to the Internal Revenue Service and other various federal agencies to decide how to resolve conflicts between states over gay marriage.

President Barack Obama said he's directed the attorney general and members of his Cabinet "to review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly."

It's possible the Obama administration could say that federal benefits should be granted equally to all spouses in same-sex marriages, even if they live in a state that won't recognize the union, Macey said. But such a ruling would not prevent the continued denial of state benefits to gay couples in states where same-sex marriages are not legal.

Macey said most companies will probably wait to see how the federal government is going to interpret the decision.

 

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