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Cities’ Benefits Need to be Updated After Same-Sex Marriage Ruling

August 10, 2015
GMA Plans to be Updated, Special Enrollment Offered
GMA’s retirement and insurance pro­grams are responding to recent court de­cisions by updating plans for cities.
As a result of the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor the Geor­gia Municipal Employee Benefits System (GMEBS) defined benefit retirement plan’s definition of “spouse” was revised in 2014 to include all legal marriages, in­cluding same-sex marriages.
To comply with the court’s most re­cent decision in Obergefell v. Hodges, GMA is revising the definition of “spouse” effective on June 26, 2015 for the GMEBS Health, Dental and Life Insurance pro­grams. A special enrollment period end­ing September 1 was announced in mid-July. During
this time, eligible employees in a same-sex marriage prior to June 26, 2015 will be able to enroll in the health and dental plans and add newly recog­nized spouses and stepchildren.
In addition, eligible employees law­fully married after June 26 but before the notice of special enrollment will have a slightly extended period to make enroll­ment changes arising from the marriage.
The U.S. Supreme Court ruling in Obergefell v. Hodges, requiring states to license same-sex marriages and to recognize same-sex marriages lawful­ly performed in other states, impacts how cities handle public and employ­ment benefits.
Gov. Nathan Deal has confirmed that Georgia will follow the federal law, and Attorney General Sam Olens has instructed state agencies to en­sure their practices conform to the law. Likewise, cities should take imme­diate action to ensure that same-sex marriages are treated the same as op­posite-sex marriages in conformance with federal law with respect to pub­lic benefits they administer as well as their own employment benefits.

All city ordinances, programs and pol­icies should be interpreted and imple­mented in a manner that treats all legal marriages equally. For example, family memberships at recreational parks must recognize a legally mar­ried same-sex couple as a family.
Cities should identify and update any documentation—including forms, websites and written policies—that define spouse, marriage or stepchil­dren in a manner that treats same-sex marriage differently than opposite-sex marriage.

Communicate to city staff and all com­panies that administer employee ben­efit programs that all employee ben­efits will be administered in a manner that recognizes legal same-sex mar­riages starting on June 26, 2015, or for Family and Medical Leave Act purpos­es, starting on March 27, 2015. In ad­dition to the employee benefit plans, these benefits may include: Pre-paid legal plans, Military Leave, Bereave­ment Leave; Employee Assistance Pro­grams; Wellness Programs; and Hiring/Nepotism Policies.

Cities should review personnel policies and employee benefit docu­ments to revise the definition of “spouse” as needed.

Retirement Plans: As a result of the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor, legal same-sex and opposite-sex spouses must be treated as “spouses” for purposes of the fed­eral Internal Revenue Code. For that reason, cities were already required to revise the definition of “spouse” in their retirement plans for federal tax purposes.

Family and Medical Leave Act: Due to the Windsor decision and a new Department of Labor Rule, starting March 27, 2015, all employ­ers must administer FMLA leave rec­ognizing all legal marriages. Eligible employees may take leave to care for their same-sex spouse with a serious health condition; may take qualifying leave due to their same-sex spouse’s covered military service; take mili­tary caregiver leave for their same-sex spouse; and may take leave to care for the child of a same-sex spouse (a step-child). The new rule requires an em­ployer to accept a “simple statement asserting that the requisite family re­lationship exists.” For more informa­tion about same-sex marriage and the FMLA, see the Department of Labor’s Frequently Asked Questions: FMLA Fi­nal Rule at dol.gov/whd/fmla/spouse/faq.htm#3
Health and Welfare Benefits: If a city’s health plan, health care flexible spending account, dependent care flexible spending account, dental, vi­sion, disability, specified illness, Code Section 125 (“Cafeteria”) plan or life insurance plan defines a spouse to be a member of the opposite sex, these plan documents must be amended to revise the definition.
Special Enrollment and Code Section 125 Cafeteria Plans: Plans subject to HIPAA Special Enrollment laws must permit an employee al­ready in a same-sex marriage to make changes to enroll and add newly eli­gible spouses and stepchildren. These special enrollment events may cause administrative issues with Code Sec­tion 125 plans. The IRS is likely to is­sue guidance in the near future about how to handle mid-year election changes arising from the Supreme Court’s ruling.
City officials should work with their city attorneys to ensure that all benefit plans are properly amended and administered, and to ensure that the city properly communicates spe­cial enrollment opportunities. City at­torneys are encouraged to contact the GMA Legal Department with ques­tions about these matters.