Same Sex Marriage in Iowa - What Employers Need to Know

On April 27, 2009 it became legal in Iowa for gay and lesbian couples to have access to civil marriage. So Iowa now joins Massachusetts and Connecticut as the only states currently allowing same-sex marriage. Legislation is pending in several states, and in several states same-sex civil unions are legal, which offer some, but not all of the privileges of marriage.

This is a hotly debated topic, and my intent here is not to take any side, but to discuss the impact on employers from a legal standpoint. It is a complex issue, particularly when it comes to employee benefits, where some benefits are governed by Iowa law, some by federal law (which does not recognize same-sex marriage), and some by both.

First I would like to discuss the area of respectful workplace, discrimination and harassment. The law has not changed in this area. Sexual orientation has always been protected under the Iowa Civil Rights Act, which means that you cannot discriminate against or harass an employee because he or she is gay or lesbian.

What may change is a "coming out." Your employee may have chosen not to disclose to anyone at work that he or she was gay or lesbian, but if someone sees their wedding announcement in the newspaper, the word would be out. So you need to be extra sensitive to these situations, and be proactive to head off any potential issues. And by all means, make sure you have your respectful workplace/harassment policy in place, that it is communicated to your employees, and that they know the process to report harassment if it occurs.

Also, be aware that you need to treat people equitably. So if it is the culture at your company to throw a wedding shower or chip in for a gift for a heterosexual couple... Well, this may seem a bit awkward, but you should be thinking how you can treat your same-sex couple as equally as heterosexual couples. You should at least visit with your employee to find out his or her wishes.,

OK, on to the benefits, and this is where it gets really messy. I won't be able to cover everything here. You should rely on your benefits providers, as they are the experts and know your plans, but I'll give you some of the basics so you understand where all the craziness is coming from.

One of the priviliges of marriage is having rights as a spouse to employee benefits. The main tension here is between the Iowa law that says same-sex marriage is OK, and the Federal Defense of Marriage Act (DOMA), which specifically defines marriage as a legal union exclusively between one man and one woman. So any employee benefits controlled by federal laws like COBRA, FMLA, HIPAA, Section 125, etc. are not extended to same-sex spouses. Below are some examples.

Most employer-sponsored health plans (including dental and vision) will cover same-sex spouses. If you have a self-insured plan covered under ERISA, there may be an exception, however before excluding same-sex spouses, I would strongly suggest consulting your attorney.

If the employee loses coverage and is eligible for COBRA, he/she may elect family coverage and cover the same-sex spouse, however, if he/she waives coverage, the same-sex spouse does not have COBRA priviliges on his/her own.

HIPAA is a federal law, so same-sex spouses have no special enrollment rights for qualifying events. For instance, if you get married, it is normally a qualifying event to add drop coverage, but not for same-sex spouses. However they could enroll at the next open enrollment.

Family Medical Leave Act (FMLA) is a federal law, so does cover time off to care for same-sex spouse.

Section 125 (Flexible Spending Accounts) and Health Savings Accounts are federal laws, so that money cannot be used to reimburse for same-sex spouse expenses.

This is not a complete list. You should discuss all of your employee benefits with your benefits providor. In addition you should review your policies for any references to spouse or domestic partner to make sure you are using the terminology you intend. Examples of plans and policies to review are bereavement leave, sick leave, any self-funded reinsurance, your retirement or pension plans, and adoption assistance plans.

While we at Your Own HR Pro are not your benefits experts, we can be of assistance in reviewing and developing your employee policies and providing respectful workplace training. Don't hesitate to give us a call.

Please visit our website http://www.yourownhrpro.com/ .