Many hoped that the U.S. Supreme Court’s ruling in U.S. v. Windsor would clear up the confusion regarding what employers and plan administrators can and should do if they have employees with same-gender spouses. Alas, that was not to be. As 2014 approaches, employers face as many complications as ever.
Rather than simplifying matters, the Court’s ruling actually heightened the confusion. The Windsor (No. 12-307, June 26, 2013) ruling was a narrow one, and only invalidated one part of the federal Defense of Marriage Act — Section 3, which defined “marriage” as occurring between a man and a woman, and “spouse” as of the opposite gender. It did not address Section 2, which recognizes the individual states’ authority to define “marriage” and “spouse” under their own laws.
Now — since Hawaii and Illinois enacted laws making same-gender marriage legal in those states — there are 16 states where that is the case. But a strong majority of states — 33 — have either laws or constitutional amendments that define “marriage” and “spouse” as the federal DOMA used to, and therefore do not recognize same-gender spouses and marriages.
At the same time, federal departments and agencies have begun to issue guidance that implements the Windsor ruling for purposes of federal law. IRS and the U.S. Department of Labor, for instance, have made it clear that ERISA, the federal tax code and federal labor law all recognize same-gender spouses and marriages.
And that means that employers in nearly three-fourths of the states have to treat benefits they provide to employees’ same-gender spouses differently for purposes of federal law and state law. That can be more than a headache — it can pose significant administrative challenges. And 2014 does not appear to portend any relief.
It’s important that an employer and a plan administrator be prepared to handle these challenges. An ideal way to obtain important information on what an employer should do in this environment is to attend “The IRS and DOL Have Spoken: Same-gender Partner Benefits in a Post-Windsor World,” a webinar Thompson Information Services will be holding on Dec. 18 from 2:00-3:30 p.m. EST. Register now!