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Few large employers anticipate making changes to their benefit offerings for gay and lesbian domestic partnerships and civil unions after the U.S. Supreme Court's partial invalidation of the Defense of Marriage Act, according to a survey released Wednesday.
Eighty-seven percent of large employer members of the ERISA Industry Committee said they already offer spousal benefits to same-sex couples in domestic partnerships, and 79% said they offer benefits to same-sex couples in civil unions, according to a survey conducted this month by the Washington-based benefit advocacy group for Fortune 250 employers.
To date, 45% of employers polled said they did not plan to change their benefit offerings for domestic partners as a result of the Supreme Court's ruling, and 59% said they will not make changes to their offerings for couples in civil unions. Twenty-five percent and 33% of employers surveyed said they remain undecided how the ruling — and any resulting rule changes at the federal level — will impact their benefit offerings to same-sex domestic partnerships and civil unions, respectively.
How those percentages are ultimately affected by the Supreme Court's June 26 ruling declaring unconstitutional Section 3 of DOMA — which had restricted federal recognition of marriage to unions of one man and one woman — remains to be seen. Presumably, any changes to employers' ERISA-governed benefit programs mandated by federal regulators would apply only to legally married same-sex couples, meaning the decision to offer benefits to same-sex domestic partners and civil unions would remain at employers' discretion.
For many employers, that decision likely will depend on the federal government's forthcoming guidance on the DOMA ruling's implications for ERISA-governed benefit plans. Specifically, regulators have yet to declare whether same-sex spouses' eligibility for benefits will be determined by their state of residence or by the state in which their marriage was performed.
“ERIC's members are really struggling with the fallout from this DOMA decision,” ERIC President and CEO Scott Macey said in a statement released on Wednesday. “The big issue, one that dwarfs almost all others, is what to do in states that do not recognize same-sex marriage.”
This month, the Department of Labor http://www.businessinsurance.com/article/20130827/NEWS03/130829837 updated several of its guidance documents regarding emergency leave benefits under FMLA to reflect the Supreme Court's decision, extending FMLA benefits to legally wed gay and lesbian couples residing in states that permit same-sex marriage. Should regulators make a similar determination regarding spouses' eligibility for ERISA benefits, same-sex couples living in the 36 states that do not permit same-sex marriage would continue to be unrecognized under federal law.
“Our members really need to know what the rules will be before they can fully implement any new benefits strategy, especially those with calendar-year plans who will soon be in high gear for enrolling members for next year,” Mr. Macey said.
Irrespective of the federal government's guidance, 15% of employers polled said they will recognize all legally performed same-sex marriages — even if the couple lives in a state that does not recognize that marriage — while 11% said they will only recognize married gay and lesbian couples living in states that permit same-sex marriage. The remaining 74% said they are waiting for guidance from regulators.
“I was not surprised to learn that nearly three-quarters of the ERIC members who responded to our poll have not yet decided how to handle the benefits of spouses of same-sex marriages in states that do not recognize such marriages,” Mr. Macey said. “For most of these employers, guidance from the government is crucial.”