Are You Required to Cover Same-Sex Spouses in Your Health Plan After Obergefell v. Hodges?

Lyndsey R. Barnett

It isn’t that often that the U.S. Supreme Court hears benefit issues and even more rare to have two highly-anticipated opinions impacting benefit plans be released in the same week. On June 26th, just one day after the Supreme Court upheld the ACA subsidies, the Supreme Court ruled same-sex couples have a constitutional right to marry. While the case didn’t directly involve a benefit issue, it may have a huge impact on an employer’s benefit plans. Unfortunately, it is too soon to know exactly what all of those impacts may be.

Currently, employers are not required to cover same-sex spouses in their health and welfare plans. In fact, nothing in the law requires employers, even large employers subject to the ACA pay or play mandates, to provide spousal coverage at all.  Nothing in the Obergefell decision directly changed this. However, Obergefell paves the way for the next round of litigation on same-sex rights. If your plan covers spouses, but not same-sex spouses, you could face litigation alleging sex discrimination under Title VII of the Civil Rights Act of 1964.

At this time, we aren’t advising employers to rush out and amend their plans to cover same-sex spouses if they do not want to do so. However, if you have been considering extending coverage to same-sex spouses, this case and the litigation risk that is now present may accelerate your decision. Also, all plan sponsors should immediately review all of their benefit plan provisions to determine whether the definition of spouse in the plan document already picks up same-sex spouses so that you can administer your plan accordingly.

We don’t think this will be the end of this story and we will keep our readers updated as developments occur.