What Employers Need to Know About Conn.’s New Civil Union Law

Connecticut recently became the first state to voluntarily adopt legislation recognizing civil unions between same-sex couples. Connecticut’s civil union law, which will go into effect October 1, formally recognizes civil unions between same-sex couples over the age of 18 and grants such couples the same rights, privileges and responsibilities under state law as married couples. Now, employers in the state are attempting to understand the impact this legislation will have on the workplace.

It is clear from the new legislation that employers with at least three employees may not discriminate against applicants or employees on the basis of their civil union status. Connecticut law prohibits discrimination based upon marital status. In essence, the new civil union legislation states that wherever the term “marriage” or “spouse” appears under Connecticut law, the term “civil union” or “civil union partner” should be substituted. The addition of this new protected class into the workplace however, should not have a significant impact on employers given that Connecticut law already prohibits discrimination based upon sexual orientation.

The civil union legislation expressly provides that state and local governments must extend coverage under their employee benefit plans to civil union partners of employees on the same terms and conditions as such benefits are available to married spouses of government employees. Because the state already provides such coverage to domestic partners, the effect of this aspect of the civil union legislation will be limited to local and municipal entities.

Group benefits
What if any obligations a private employer may have to provide group health and other insurance benefits to civil union partners are not as clear-cut. The legislation does not expressly require private employers to extend benefit coverage to civil union partners. First, it should be noted that private employers in this state are not legally obligated to provide any health or other insurance benefits to their employees or their families. The question, thus, arises whether an employer may now offer coverage to a spouse of a married employee but not to an employee’s civil union partner. Given the state’s laws prohibiting discrimination on the basis of civil union status, marital status and/or sexual orientation, could an employer’s failure to make such benefits available to civil union partners lead to a lawsuit?

Federal ERISA law preempts any state laws that relate to employee benefit plans. Connecticut’s civil union legislation is exclusively a creature of state law. Federal law does not legally recognize such unions. Thus, to the extent that state anti-discrimination statutes may be read to mandate the provision of employee benefits to civil union partners, courts are likely to find that this aspect of the state anti-discrimination laws is preempted — or trumped — by the federal ERISA law. A state cannot enact legislation that would require private employers to extend greater rights to participate in ERISA-covered benefit plans than are required under federal law. However, some groups do not believe that ERISA’s reach is quite so broad. As such, employers can expect that this issue will be litigated in years to come.

Unintended consequences
There is, of course, no prohibition on voluntarily offering employee benefits to civil union partners and it is expected that many employers in the state will choose do so. Various employers, particularly large institutional companies, already make employee benefits available to “domestic partners”. In response to the civil union legislation, employers may opt to limit the provision of benefits only to same-sex couples that have entered into civil unions. A change in the benefit offerings, however, may have an unintended consequence. Currently, many employee benefit plans define “domestic partner” to include both same-sex and opposite-sex domestic partnerships. In such circumstances, limiting eligibility to married spouses and civil union partners would have the effect of taking benefits away from opposite-sex domestic partners who may have previously qualified for such benefits. Similarly, an employer that does not amend its plan, but continues to offer benefits only to same-sex domestic partners, may face a legal challenge from opposite-sex domestic partners. Once again, however, ERISA would likely be held to preempt any such claims.

All employers in the state should take the time to review their written benefit plan documents to ensure that benefits are provided in accordance with their intentions. For example, some plans refer to definitions contained in state law regarding what constitutes a “marriage” or “spouse”. Similarly, if employers currently make benefits available to domestic partners, but now wish to offer such benefits only to civil union partners, then the applicable plan documents and summary plan descriptions must be modified.

Family and medical leave
The civil union legislation will impact employers in other ways as well. For example, the Connecticut Family and Medical Leave Act, which applies to employers with 75 or more employees within the state, requires that employees be given up to 16 weeks of leave over a two-year period in order to care for a seriously ill “spouse” and/or their “in-laws.” Effective October 1, employers will have to offer leave to qualified employees to care for their seriously ill civil union partners. Since federal law does not recognize civil unions, the civil union legislation does not create additional obligations under the federal FMLA, which applies to employers with 50 or more employees in a 75-mile radius. Employers not subject to the state FMLA that nonetheless choose to provide family and medical leave to care for a civil union partner should refer to such leaves as “personal leaves” rather than designating it as Family and Medical Leave. To do otherwise might subject the employer to all of the attendant obligations of the FMLA.

There are other benefits employers commonly offer via policy or practice that are not preempted by ERISA that may be impacted by the new civil rights legislation. For example, many employers offer bereavement leave in the event of a death of a spouse or other immediate family members. These policies must now formally provide for leave upon the death of a civil union partner. Similarly, some companies award trips to employees who meet certain sales or other objectives. Employers may not limit such trips to married couples, but must offer them to civil union couples. Employers are well advised to review their policies and practices to ensure that equality exists among married couples and civil union couples.

Beverly W. Garofalo is a partner in the Laborand Employment Practice Group with Brown Raysman Millstein Felder & Steiner in Hartford, Conn. She can be reached at bgarofalo@brownraysman.com or (860) 275-6404. Meredith Bauer is a student with the University of Connecticut School of Law, and a summer associate with the firm.