According to the National Conference of State Legislatures, 31 states and the 
District of Columbia now recognize same-sex marriages. Earlier this month, the United States Supreme Court refused to hear appeals challenging same-sex unions. The Supreme Court’s decision resulted in several states moving forward with permitting same-sex marriages. These states include Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, North Carolina, Oklahoma, Utah, Virginia, West Virginia, and Wisconsin.
Does this mean that self-funded, ERISA plans must extend coverage to an employee’s same-sex spouse? Although the trend is clearly toward doing so, we think the answer is “no,” until the federal agencies or case law dictate otherwise. Although states may have insurance, domestic relations, and nondiscrimination laws that require recognition of same-sex marriages, ERISA preemption appears to invalidate those requirements as they would apply to a self-funded ERISA plan. Plan sponsors choosing an insured plan might not have a choice, because of the way these laws impact insurers.
While ERISA preempts state laws that relate to a self-funded plan, there is no preemption for plans not subject to ERISA (e.g., governmental and church plans), and there is no preemption of other federal law. So here’s the next question: Does federal law mandate that a self-funded plan offer coverage to an employee’s same-sex spouse if it offers coverage to opposite-sex spouses?
While the Department of Labor (DOL) and other agencies have indicated that some other federal laws apply to an employee’s same-sex spouse (e.g., FMLA), there has been no mandate from the DOL requiring an offer of health coverage to a same-sex spouse under a self-funded plan. Similarly, the Equal Opportunity Employment Commission, the agency with jurisdiction over federal employment nondiscrimination laws, has not concluded that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964.
Whatever path an employer chooses to take, the terms of the plan documents must be clear, and the rules should be communicated to employees. For example, if an employer wants to allow for coverage of same-sex spouses, it should state that coverage is available to the employee’s legal spouse, including a same-sex spouse. If an employer does not want to offer the coverage, then same-sex spouses should be specifically excluded from the class eligible for coverage.