THE Do’s And Don’ts of DOMA
The Supreme Court of the United States, on June 26, 2013, ruled that Congress could not limit the application of marital benefits under federal law to unions between a man and a woman. The Supreme Court’s decision in United States v. Windsor struck down that section of the Defense of Marriage Act (DOMA), passed by Congress in 1996. As a result, individuals in same-sex marriages are entitled to the same federal benefits as individuals in opposite-sex marriages. This is a ruling that affects school boards, school district administrators, and school employees. As an aid to school districts and their employees, the National School Boards Association led an effort in collaboration with the National Education Association and the School Superintendents Association to produce this FAQ. We believe it will help school district staff understand how the Windsor decision affects their responsibilities for policy and administration, and help employees understand how the decision affects their benefits. In the near future, as federal agencies and departments implement this ruling, NSBA will update the document.
(This document provides an overview of the Windsor decision. Readers are advised that federal agencies are still reviewing the decision, and will be issuing regulations addressing how the ruling affects their subject matter area and administration of benefits. This document does not constitute legal advice or the rendering of a legal opinion on any particular document or individual situation. School boards are encouraged to seek the advice of a member of NSBA’s Council of School Attorneys.)
Who should be interested in the DOMA ruling?
School boards, school system human resource departments, payroll departments, benefit administrators, employees, employee associations, and third-party administrators should be interested. The ruling affects employee benefits, and plan and policy administration.
What benefits are affected?
The ruling affects over a thousand federal laws providing benefits to spouses. Federal agencies currently are reviewing these laws and have been directed by President Barack Obama to “move as quickly as possible to fully implement the Court’s decision.” Some of the most important areas affected are benefits under the tax laws, Social Security survivor’s benefits, the Federal Family and Medical Leave Act (FMLA), immigration laws and the opportunity to sponsor a foreign-born spouse for citizenship, benefits under the Employee Retirement Income Security Act, and, potentially, access to a veteran’s spousal benefits.
What school board policies and benefits are affected?
Every policy and benefit that defines or refers to marriage or spouses in the application of a federal benefit is affected. The reference to marriage may be by use of the term “husband,” “wife,” or “spouse.” Major areas could include health benefits, FMLA policies, leaves of absence under policies and collective bargaining agreements, retirement benefits, beneficiary designations, health care spending accounts, dependent care accounts, COBRA policies, nepotism rules, and ethics policies.
How do states view same-sex marriages?
State laws on marriage vary across the nation. Some states permit marriage of same-sex couples (14 states plus the District of Columbia). Some states permit same-sex civil unions or domestic partnerships, but not same-sex marriages. Some states recognize same-sex marriages performed in other places; others do not.
What states allow same-sex marriages?
California (since June 17, 2008)
Connecticut (since April 16, 2009)
Delaware (since July 1, 2013)
DC (since March 3, 2010)
Iowa (generally since April 27, 2009, but a few before that date)
Maine (since Nov. 6, 2012)
Maryland (since Jan. 1, 2013)
Massachusetts (since May 17, 2004)
Minnesota (since Aug. 1, 2013)
New Hampshire (since Jan. 1, 2010)
New Jersey (since Oct. 21, 2013)
New York (since July 24, 2011)
Rhode Island (since Aug. 1, 2013)
Vermont (since Sept. 1, 2009)
Washington (since Dec. 6, 2012)
This information may be viewed as a map prepared by Pew Research at http://features.pewforum.org/same-sex-marriagestate-by-state/. In addition, New Mexico does not explicitly prohibit or permit same-sex marriage. Some counties are issuing marriage licenses to same-sex couples, others are not. The issue could eventually be resolved by legislation or court ruling.
Are civil unions/domestic partnerships affected by the ruling?
No. The ruling has no impact on civil unions or domestic partnerships. The ruling only affects marriages, as defined by applicable state law.
Which state law on marriage determines the benefit: the state where the school district is located or where the employee lives?
It depends on the issue. For example, FMLA and Social Security benefits are determined by the employee’s state of residence, not the state where the school district operates. Under immigration law, it is the state of celebration (the state which recognized the marriage). This is an area of discussion among federal agencies at the moment, and many believe that a federal law may be enacted to provide a universal answer.
What if a school district is located in a state that does not recognize same-sex marriage?
The effect of the ruling will depend on the benefit, because some benefits, such as FMLA benefits, are available if the individuals reside, not work, in a state that recognizes same-sex marriages.
Must school district benefit plans cover same-sex marriages?
Yes, school districts must provide federally derived benefits to same-sex spouses, if the marriage is recognized by the applicable state.
Does the ruling have an effect on collective bargaining agreements?
Yes, if the negotiated agreements have provisions concerning federal spousal benefits.
What is the effective date of the court’s DOMA ruling?
July 26, 2013 (30 days after the decision), but it has retroactive applicability to the date of the individual’s marriage.
Will federal agencies be issuing new regulations?
Yes, but each agency is working on its own timeline.
Should school districts inform employees of the change in benefits?
Yes. The failure to inform employees of potential changes to benefits could be viewed as a form of discrimination or as a violation of the equal protection clause.
What are the tax consequences of the DOMA ruling?
In late August 2013, the Internal Revenue Service issued Revenue Ruling 2013-17, beginning its implementation of the Supreme Court’s ruling. There are more than 200 IRS Code and agency regulations pertaining to marriages and spouses. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage. Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory, or a foreign country will be covered by the ruling. The Revenue Ruling affects gift taxes, estate taxes, and numerous aspects of income tax including filing status, personal and dependency exemptions, the standard deduction, employee benefits, contributions to an IRA, and claiming the earned income tax credit or child tax credit. Individuals are encouraged to consult a tax preparer or attorney for advice on how the ruling affects them.
Another significant change is the treatment of employer-sponsored health coverage. Prior to the Supreme Court’s DOMA ruling, for employees in a same-sex marriage, the cost of the employer-sponsored coverage provided to the same-sex spouse was included in the employee’s gross income (“imputed income”) and was subject to FICA taxes. Additionally, the employee only could pay for employer-sponsored coverage provided to the same-sex spouse on an after-tax basis. There also were additional costs to the school district, because the value of the employer-sponsored coverage for the same-sex spouse was subject to Social Security, Medicare (FICA), and federal unemployment (FUTA) taxes.
As a result of the DOMA ruling and Revenue Ruling 2013-17, employees in a same-sex marriage must be treated the same as employees in an opposite-sex marriage, regardless of where they reside. This means that the value of the employer-sponsored coverage provided to a same-sex spouse will not be included in the employee’s gross income and will not be subject to FICA taxes. Additionally, employees can pay premiums for employer-sponsored health coverage provided to a same-sex spouse on a before-tax basis. For the school district, the value of the employer-sponsored coverage provided to the same-sex spouse will not be subject to FICA and FUTA taxes. The IRS has issued special administrative procedures for employers to obtain refunds of overpayments of FICA payments and employment taxes for 2013 and proper years regarding same-sex spouse benefits and remuneration. These procedures are contained in Notice 2013-61, available at http://www.irs.gov/pub/irs-drop/n-13-61.pdf.
What if an employee was taxed on their spouse’s health benefits?
Employees should consult their tax advisor. An employee may need to file an amended tax return. According to IRS tax tip 2011-72, available at http://www.irs.gov/uac/Nine-Facts-on-filing-an-Amended-Return, “Generally, you must file Form 1040X within three years from the date you filed your original return or within two years from the date you paid the tax, whichever is later.”
Are an employee’s COBRA rights affected?
Yes. Prior to the DOMA ruling, employers could, but were not required to, offer COBRA benefits to individuals in a same-sex marriage. Now, employers are required to offer an employee’s same-sex spouse (and their children) independent COBRA election rights to continue coverage.
Do same-sex couples need to wait for an open enrollment period to add spousal coverage?
Probably not. Marriage is a “qualifying event” under employer-provided health plans, which allows changes between open enrollment periods. In light of the Court’s DOMA decision, school districts should enroll the spouses of same-sex couples immediately.
Does the DOMA ruling affect health savings accounts (HSA)?
Yes. Prior to the DOMA ruling, same-sex spouses were treated as two separate individuals, which allowed each individual to contribute up to the HSA family maximum. Now, same-sex spouses must share the HSA family contribution limit.
Does the DOMA ruling affect dependent care accounts?
Yes. Before the Supreme Court’s DOMA ruling, individuals in a same-sex marriage could not use a dependent care account for expenses related to the care of a spouse’s child. Now, the expenses of the care of a same-sex spouse’s child are eligible for reimbursement.
What is the effect on a school district’s FMLA policy?
If an employee resides in a state that recognizes same-sex marriages, the employee will now possess FMLA entitlements to care for his/her spouse’s serious health condition. FMLA benefits depend on the marriage law in the state where the employee resides. This can create an administratively complex and cumbersome problem for school districts that decide to provide FMLA rights only to individuals residing in a state that recognizes same-sex marriages. It may be advisable to provide FMLA benefits to individuals in same-sex marriages regardless of residence. The U.S. Department of Labor’s Revised Fact Sheet # 28F, issued in late August 2013, also provides helpful guidance regarding FMLA benefits for same-sex spouses.
What terminology should be used in referring to marriage in school district policies and plans?
It is advisable to refer simply to “marriage” and “spouse,” and let the prevailing state law determine its application. This will keep the school district’s documents current, even if a state’s law changes over time.
What should school districts do to implement the DOMA ruling?
There are several actions school systems should take:
1. Issue amended W-2 statements reversing any income imputed to an employee because their same-sex spouse received medical or other benefits.
2. Investigate obtaining an employer refund for FICA taxes.
3. Review and revise all policies, benefit plans, summaries, and forms, etc., that apply to or affect married employees as needed.
4. Consider the need for sponsoring a limited enrollment window for benefits.
5. Notify employees of this ruling and their possible eligibility for benefits, including retroactive application.
6. Review all collective bargaining agreements and confer with association representatives to see if changes are needed.
7. Consider revising your FMLA policy to provide benefits regardless of the employee’s residence, for ease of administration.
8. Review the civil rights laws in your state and local jurisdiction for anti-discrimination or benefit provisions that apply to these issues.
9. Monitor updates to federal regulations, especially from the U.S. Department of Labor of the definition of “spouse” under the FMLA.
10. Monitor legislation and court rulings in your jurisdiction that may establish marital status, sexual orientation, or gender identity as protected classes for civil rights purposes.
NOTE: When implementing a significant ruling such as United States v. Windsor, consult your state association of school boards and a Counsel of School Attorneys (COSA) member. The interplay between federal and state law in this arena will be particularly complex.