This summer, the United States Supreme Court ruled in United States v. Windsor that the Defense of Marriage Act (“DOMA”), the law that defined “marriage” as a union between one man and one woman for purposes of federal law, was unconstitutional. The effect of the ruling is that married same-sex couples would become eligible for certain federal spousal benefits that were denied to them under DOMA. In the wake of Windsor, employers have been awaiting guidance from federal agencies as to what DOMA’s downfall means for administering employee benefit plans. We had previously written a blog post about this uncertainty; however, the Department of Labor (“DOL”) recently issued the awaited guidance to help employers comply with Windsor’s ruling.

As explained in Technical Release 2013-04, for purposes of the Employee Retirement Income Security Act of 1974 (“ERISA”), the term “spouse” will encompass any two individuals, regardless of gender, who are legally married under state law. It does not matter in which jurisdiction the couple presently resides, so long as the couple was married in any one of the now 13 states, the District of Columbia, or even any foreign country that performs same-sex marriages. The unimportance of the couple’s residency for federal purposes simplifies administration for employers and plan sponsors, due to the myriad of ways that states recognize, or do not recognize, same-sex marriages performed elsewhere. For example, a same-sex couple who was legally married in Iowa but now resides in Missouri is considered married for purposes of ERISA, even though Missouri state law does not recognize that marriage.

The ease of looking at the location of a couple’s marriage license allows consistency and efficiency in administering employee benefit policies, which must comply with a variety of federal laws. The Department of Labor’s guidance notes that defining “spouse” in this way is consistent with the approach taken by the IRS and the Department of Health and Human Services. Further, the DOL’s guidance notes that its interpretation also applies to the Health Insurance Portability and Accountability Act (“HIPAA”), a federal law whose provisions often overlap with ERISA. For example, under HIPAA, a group health plan must allow mid-year spousal enrollment under the occurrence of certain conditions, such as marriage or the employee’s loss of coverage because of his or her same-sex spouse’s loss of coverage.

While employers should take comfort in knowing that the DOL’s guidance is straightforward in many respects, some questions remain open and in need of further guidance. For example, while employees with a same-sex spouse may be eligible for spousal benefits under an ERISA plan, it is unclear whether the employer must design its benefit plan with the result of making benefits available to such spouses. At minimum, all Windsor and the DOL’s guidance require is that the generic term “spouse” includes legally married opposite- and same-sex spouses.

Henceforth, we recommend that employers and employee benefit plan administrators immediately adapt their plans to comply with the DOL’s guidance and administer benefits equally to every eligible employee’s spouse. We will follow this topic closely and provide updates as more guidance is issued.