Benefits and Compensation

DoD to Begin Extending Employee Benefits to Same-sex Partners

Some employee benefits such as child care and transportation benefits are soon to be offered to the same-sex domestic partners of military members, U.S. Department of Defense recently announced. Outgoing Secretary of Defense Leon Panetta indicated in Feb. 11 memo that the move was a step toward conferring benefits to same-sex partners that currently are only available to opposite-sex spouses. The DoD is expected to begin the new policy no later than the beginning of the federal government’s fiscal year 2014, which is Oct. 1, 2013.

Child Care

The fringe benefit style programs that the DoD will offer to same-sex partners include child care. The memo did not specify whether the DoD would provide child care facilities or pay or reimburse for childcare expenses. Code Section 129 allows employers to exclude up to $5,000 of employer-provided or employer-paid dependent care assistance from an employee’s income for dependent care assistance.  provided the requirements of Section 129 are met.

Transportation

Another of the DoD benefits listed (see Attachment 2 to the DoD memo) is space-available travel on DoD aircraft. This could be similar to private employers’ offering spousal travel aboard corporate aircraft, which employers usually make conditional based on space availability. The cost of spousal travel is often treated as imputed income to the employee because it is difficult to satisfy the “bona fide business purpose” requirement in order for the employer to exclude the costs from the employee’s income. Similar benefits listed are transportation to and from certain places of employment and on military installations; transportation to and from primary and secondary school for minor dependents; and travel and transportation allowances incident to hospitalization of military members.

Other Benefits

Commissary privileges are also on the list. Other benefits include educational assistance programs.

Background

The DoD move was in keeping with the military’s repeal of the “Don’t Ask, Don’t Tell” policy. “The implementation of the repeal of the ‘Don’t Ask, Don’t Tell’ law has been led effectively by leaders throughout the chain of command and is now essentially completed,” Panetta said in a memo to secretaries of all military departments.

“One of the legal limitations to providing all benefits at this time is the Defense of Marriage Act,” Panetta said in a public statement. The DoD had long been a hold-out in its refusal to offer same-sex domestic partner benefits, so its policy change further points to shifting workplace attitudes on this issue, particularly as the U.S. Supreme Court reviews cases involving DOMA and California’s Proposition 8.

“There are certain benefits that can only be provided to spouses as defined by that law, which is now being reviewed by the United States Supreme Court,” Panetta added. “I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation.”

Panetta did not specify whether the full complement of benefits would be offered to same-sex domestic partners who do not marry in the event gay marriage becomes legal. DoD staff is studying the new benefits and is due to report its findings to the new Secretary of Defense, Chuck Hagel, by April 11.