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"Same-Sex Marriage Recognized in West Virginia – How Will This Impact Employer-Sponsored Health Plans?"

By: Jill E. Hall
Benefits Alert
October 9, 2014

Today, the Attorney General and Governor of the State of West Virginia announced that West Virginia will no longer prohibit same-sex marriage, implementing a ruling of the United States Court of Appeals for the Fourth Circuit (the federal appeals court that encompasses West Virginia, Virginia, North Carolina, South Carolina and Maryland), which found a similar ban in Virginia to be unconstitutional. Because the United States Supreme Court recently refused to accept an appeal of the Fourth Circuit decision, the matter is settled for now in West Virginia.

These recent decisions have many employers wondering what effect, if any, the rulings will have on employer-sponsored health plans' obligations when it comes to same-sex spouses. The answer is little, if any … for now.

The rights of same-sex spouses in the employee benefits context have been making headlines since the United States Supreme Court's 2013 decision in United States v. Windsor. In that case, the high court determined that the definition of marriage as between one man and one woman, as found in the Defense of Marriage Act, was unconstitutional. That decision led the Employee Benefits Security Administration and the Internal Revenue Service to issue guidance, which holds that the definition of "spouse" for purposes of qualified retirement plans includes same-sex spouses when the couple was legally married in a state that recognizes same-sex marriage. Thus, for purposes of qualified retirement plans, those same-sex couples that were legally married in such a state have the same rights as opposite-sex couples, regardless of where they currently reside. Retirement plans are required to make any necessary plan amendments by the end of the year.

The effect of the Windsor decision and resulting guidance from federal agencies on health plans has been less clear. Unlike the laws governing qualified retirement plans, ERISA does not require employer-sponsored plans to cover spouses at all. Thus, it is arguable that absent such a requirement, an employer sponsoring such a plan can exclude same-sex spouses from coverage if it so desires. The issue, however, remains uncertain until more courts and federal agencies weigh in.

In addition, there is no law, either in West Virginia or federally, that considers sexual orientation to be a protected class when it comes to nondiscrimination laws. Should such a law be passed, and as more courts construe cases like Windsor in additional contexts, it is more likely that employers willing to cover opposite-sex spouses under their health plans will face discrimination charges if they do not likewise cover same-sex spouses. Laws, such as Title VII, may come into play as well, as one theory advanced in some courts is that failure to cover same-sex spouses under a health plan when opposite-sex spouses are covered results in sex discrimination (as opposed to sexual orientation discrimination).

These issues are being litigated in federal courts across the country. It remains to be seen what courts in West Virginia and other states will decide with respect to an employer's obligation to cover same-sex spouses under a health plan, even in the wake of general bans on same-sex marriage being overturned. In the meantime, employers should consult with their legal advisors to better understand their risks and to ensure their plan documents reflect their intent and comply with existing, evolving law when it comes to coverage of same-sex spouses.