By Renee Kuhs, Compliance Attorney, Vizance, Inc.

Effective October 6, 2014, Wisconsin recognizes same-sex marriages. Wisconsin residents in a same-sex relationship may file for a marriage license in Wisconsin. Same-sex marriages that took place in another state will now also be recognized in Wisconsin.

Employers should consider how this change will impact their employment practices and health insurance plans.

FMLA

In 2009, Wisconsin’s FMLA was modified to provide rights to individuals that were in a domestic partnership. In light of the recognition of same-sex marriages in Wisconsin, individuals in a same-sex marriage will also be entitled to the rights provided to legal spouses under Wisconsin’s FMLA.

Rights available under federal FMLA have been afforded to same-sex spouses if the marriage was recognized under the laws of the state where the individual resides. With the change in Wisconsin’s law on same-sex marriages, same-sex spouses are also entitled to protection under the federal FMLA effective immediately.

Health Insurance Coverage

Employers that offer a fully-insured health plan to its employees will be required to comply with Wisconsin insurance laws. The Office of the Commissioner of Insurance regulates fully-insured health plans in Wisconsin. To date they have not released official guidance in response to this change in law. However, the Affordable Care Act (ACA) prohibits insurance carriers from discriminating based upon sexual orientation. Beginning January 1, 2015, we expect all insurance carriers will extend health insurance coverage to same-sex spouses.

Employers that sponsor self-funded health plans are governed by ERISA. ERISA defines a spouse as any legally executed marriage, which includes same-sex marriage. Self-funded health plans that do not recognize same-sex spouses risk being sued for discrimination.

In light of these legislative developments, the value of health insurance benefits provided to same-sex spouses are not included in an employee’s taxable income for both state and federal tax purposes.

Some insurance carriers have created special enrollment opportunities for impacted individuals. Please contact your Vizance associate if you have employees that are impacted by this legislative development and would like to enroll in your health plan.