After the U.S. Supreme Court’s recent ruling last summer on Section 3 of the Defense of Marriage Act, I've received the above question numerous times.
Recall, that while PPACA mandates coverage for employees and those employees' children, it does not mandate you offer coverage to spouses. But that is probably a distinction with no practical difference as I have no clients excluding spouses from their benefit offering. So in states that have legalized same-sex marriage, employers must offer coverage to same-sex spouses under insured contracts. That is an easy one as both insurance contracts and marriages are governed by state law.
However what about a self-funded medical plan that is governed under federal law - ERISA?
Here is the best practical advice I can give and it comes from Todd Solomon and Brian Tiemann of McDermott Will & Emery:
Recall, that while PPACA mandates coverage for employees and those employees' children, it does not mandate you offer coverage to spouses. But that is probably a distinction with no practical difference as I have no clients excluding spouses from their benefit offering. So in states that have legalized same-sex marriage, employers must offer coverage to same-sex spouses under insured contracts. That is an easy one as both insurance contracts and marriages are governed by state law.
However what about a self-funded medical plan that is governed under federal law - ERISA?
Here is the best practical advice I can give and it comes from Todd Solomon and Brian Tiemann of McDermott Will & Emery:
... Employers located in states where same-sex marriage is legal and with insured medical, dental or vision benefits must extend coverage to same-sex spouses. Some states where civil unions or domestic partnerships are legal also may require employers with insured medical, dental or vision plans to extend coverage to employees’ same-sex partners. Although employers with self-insured medical, dental or vision plans technically are not required to extend spousal benefit coverage to same-sex spouses regardless of the state in which the employer is located, employers that continue to provide coverage only to opposite-sex spouses face a significant risk of federal and state discrimination lawsuits if they do not cover same-sex spouses. ...The underscoring is mine.
