IRS, DOL Recognize

Same-Sex Marriage


Couple in Illinois Treated

as Valid Marriage if

Married in Same-Sex State 

            Last month the IRS, in the wake of the US Supreme Court ruling as to the Defense of Marriage Act, released Notice 2013-61.  Under the changes in this notice employers need not pay FICA payroll taxes on the imputed value of health insurance (or other subsidized benefits) allowed for the same-sex spouse of an employee.  For Section 125 plans, the extra premium paid for the partner, up until now subject to after-tax treatment, is not taxable. Note that the IRS and DOL allow employers to recoup for the unfavorable taxation retroactively to the beginning of this year.

             Readers who represent employers in such a situation are urged to consult the IRS guidance for the procedure to follow to “unwind” the unfavorable taxation of  a same-sex spouse’s benefits.

             The Department of Labor has extended the FMLA to cover same-sex spouses, so that FMLA leave may be taken for that spouse’s serious health condition.

             The trick for some employers is to identify marriages among the employees who were coded as domestic partners even when they had been married (without notice to the employer) in a same-sex marriage state.  Also, a smart employer should give notice to all employees about these changes, and point out the they apply only to same-sex marriage, and not to civil unions or all domestic partnerships.

             There is no issue to discriminate, so to speak, in favor of marriage and against domestic partnership generally, in the aftermath of United States v. Windsor,  570 U.S. __(2013), because the sexual orientation laws (such as the employment provisions of the Illinois Human Rights Act), do not require Illinois employers to extend the federal IRS and FMLA benefits to all employees who have same-sex partners or who are in a civil union.