SSM and insurance offerings

Just a couple of quick thoughts on the impact of wide spread same sex marriage recongition and legalization regarding insurance.  As a reminder, I am not a lawyer, financial planner or any other respectable professional, so SPEAK TO A PROFESSIONAL if these laws, rules and regulations touch you!

From my understanding, the law is a bit vague regarding health insurance benefits for same sex married couples. National Law Review has an interesting overview of the state of dispute:

A federal district court in the Southern District of New York found that a self-insured health plan that specifically excludes same sex couples does not run afoul of ERISA. Roe v. Empire Blue Cross Blue Shield, 2014 WL 1760343 (S.D.N.Y. May 1, 2014). The case involved an employee of St. Joseph’s Medical Center in New York, who married a person of the same sex in 2011. Later that year, the employee sought to add her spouse as a dependent under St. Joseph’s self-insured health plan. Inasmuch as the plan specifically excluded same-sex spouses and domestic partners from coverage, the employee’s request to have her spouse covered under the plan was denied…

It also rejected plaintiffs’ argument that Windsor changed the legal landscape concerning the requirement to provide benefits to same sex spouse. In so ruling, the court considered the only other decision to have addressed the application of Windsor to ERISA-covered plans, Cozen O’Connor P.C. v. Tobits, 2013 WL 3878688 (E.D. Pa. Jul. 29, 2013) (holding that the provision of spousal benefits to a deceased’s same-sex spouse in a plan that did not define “spouse” was required following Windsor) and found that it was distinguishable on the ground that the St. Joseph’s plan specifically excluded same-sex spouses from coverage whereas Cozen dealt with a plan that did not define the term “spouse.”

If I am reading this right, companies that offer employee sponsored  insurance that want to intentionally discriminate and be douchebags can legally be douchebags.  However they have to be specific and up-front about their douchebaggery.  The default assumption however is that spouse means spouse regardless of their plumbing.

From an insurance company point of view, this is no big deal.  Every insurance company knows how to set up riders that carve-out or include groups, classes of dependents or certain services.  Mayhew Insurance has riders for Catholic institutions regarding birth control, riders for a Jehovah’s Witness requirement, riders for domestic partnership benefits, riders for extra benefits for infertility.  Setting up a rider to exclude same sex spouses is a minor plumbing task.

The more interesting thing is what will companies use as a cheap signal of non-douchebaggery.    Extending benefits to same sex spouses and domestic partners is a fairly cheap way for a company to say that they want the best people.  This signal worked as it was originally an unusual and visible decision.  It was away from societal default and it worked as a recruiting tool for both straight and LGBQT individuals.  However, same sex spouse benefits are quickly becoming the default option.  It will only be notable when an insititution or employer says that it will not offer same sex spousal benefits.  At that point, that employer is signalling that it does not want the best employees irregardless of what people do on their own time. 

So what would the new signal of non-douchebaggery be?

21 replies
  1. 1
    West of the Cascades says:

    A rainbow flag at the top of the disclosure form?

  2. 2
    Served says:

    To answer the question: I think Trans benefits are the next frontier of showing an open, inclusive work environment.

    Previously in interviews, I always asked if a company offered partner benefits. I’m sure it cost me a job more than once, but a company that didn’t view me as equal would have been a miserable place to work anyway. But as of June 1 this year, no one will ever have to ask that question again, because same-sex marriage kicks in.

    Now I work for a large e-commerce outfit that is outspoken (almost irritatingly so), and supports our LGBT employee group like crazy. We even have a lawyer coming to the office in a few weeks to discuss the legal ins-and-outs of SSM in the state.

  3. 3
    David Fud says:

    Considering that many of these companies have instituted these policies at the behest of endowment shareholders such as the UUA via shareholder resolutions and engagement, I am pretty happy that we have to discuss what the next signal of non-douchebaggery is. The institutional focus seems to be going elsewhere, such as environmental and governance concerns, not social concerns.

  4. 4
    gnomedad says:

    Actually, I was effected by my parents.

  5. 5
    beth says:

    @Served: My husband’s company has an employee who was a man, legally became a woman and stayed married to his wife. The insurance company doesn’t want to cover the wife anymore since the company doesn’t cover same sex spouses and the state doesn’t recognize the marriage anymore, even though they’ve got a marriage license from said state! They’re both such nice people and it’s a shame to see this happen – they just want to be in love and keep their family together.

  6. 6
    Another Holocene Human says:

    I think rights of adoptees is going to be a major civil rights issue in this country, and it does have a lot to do with the medical system, but probably less to do with corporate america.

  7. 7
    Another Holocene Human says:

    @beth: So stupid and one reason I prefer the term “marriage equality” to “gay marriage” because just making it about same sex couples and “civil unions” raises these kinds of serious issues for the partners of transgendered people.

    I must say the US is doing marginally better than Western Europe on this particular issue. Some individual state laws need to change, however.

  8. 8
    aimai says:

    So what happens if an employee is offered no spousal benefit because the spouse is Same Sex–can they then go on the exchanges or does the fact that any health insurance is offered to them at all make them ineligible?

  9. 9
    aimai says:

    @Another Holocene Human: What rights do you think adoptees are being denied? I have two adopted nieces–after their adoption I can’t think of any legal disability they suffer vis a vis hypothetical biological children. Certainly not in the realm of health insurance.

  10. 10
    Richard Mayhew says:

    @aimai: I don’t know — that is one hell of a good question. Right now the PPACA states that if affordable coverage as defined by law is offered to one member of a family through work, the rest of the family can’t get subsidies on the Exchange. I think the key is “one” member, as the feds recognize a same sex married as a family unit now without regard to where that couple resides. I think they’re getting screwed because right now, sexual orientation is not part of a protected class, so companies can discriminate away and fuck over same sex spouses for the hell of it.

  11. 11
    JoyfulA says:

    A family member announced her boyfriend is now covered under her health insurance policy because they’ve been living together for 5 years. I didn’t know there was such a health insurance clause!

    He has a much better job in terms of money, status, advancement opportunities, and the like, but her health insurance is much better. (I didn’t know it before, but the company she works for is wholly owned by a nonprofit health insurance company.)

  12. 12
    JoyfulA says:

    This week I was on a panel of Medicare recipients for an academic group that annually prepares reports for Congress on how Medicare is received and perceived.

    When asked how I came to be familiar with all the health insurance terminology, I referred them to Richard Mayhew at Balloon Juice. So if you get called to appear at a congressional inquiry, Richard—

  13. 13
    Sister Rail Gun of Warm Humanitarianism says:

    @aimai: A legal right to genetic family medical history?

    Much as I loved my adoptive parents, I still consider my birth certificate to be a falsified document. Legally falsified, but still fiction.

  14. 14
    burnspbesq says:

    The legally significant distinction is between insurance and self-insured plans. Self-insured plans are subject to ERISA, which is a funny statute because for all the depth and breadth of its regulation of pension plans, it hardly imposes any requirements at all on other kinds of benefits.

    If we had a functional Congress, this would be an easy fix, and could easily be timed to coincide with the 40th anniversary of ERISA, which comes up in September. However, we don’t have a functional Congress, so this unanswered question is going to be batted around in the courts for a while.

  15. 15
    jonas says:

    I can’t see how something like this isn’t discrimination. Can companies really say they won’t cover a legally married partner if they’re same-sex, and SSM is legally recognized in that state — when they cover opposite-sex spouses also? Could they have riders that say they won’t cover children in mixed families, or adopted children because they aren’t your “real” kids? Can a company run by Mormons refuse to insure a spouse who isn’t also Mormon? If so, then yeah, companies should be making an effort to let their customers and employees know they aren’t assholes.

  16. 16
    Richard Mayhew says:

    @JoyfulA: Why do you hate me :)

  17. 17
    burnspbesq says:


    I can’t see how something like this isn’t discrimination.

    There’s not much doubt about that. The problem is that there isn’t an obvious statute that you can invoke to remedy that discrimination.

    ERISA doesn’t do it, and what’s worse, ERISA has always been read to broadly pre-empt state laws that seek to regulate employee benefit plans. Protecting same-sex couples under Title VII would require an amendment to the statute, and I think we both know that the chances of getting such an amendment through Congress as currently constituted are zero.

    If you’ve got another statute in mind, please share.

  18. 18
    Jack the Second says:

    3 months+ of paid parental leave for both parents, regardless of gender, including adoptions.

  19. 19
    Herbal Infusion Bagger says:


    My husband’s company has an employee who was a man, legally became a woman and stayed married to his wife.

    While the insurance company is being a douchebag, that’s a heck of an enduring love between those two. I hope it ends well for them.

  20. 20
    Herbal Infusion Bagger says:


    To answer the question: I think Trans benefits are the next frontier of showing an open, inclusive work environment.

    Yep; plus, because of the smaller proportion of the population covered, it will be a relatively cheap signal of non-douchebaggery.

    Let’s remember, though, that many of tech companies signaling their non-douchebaggery on the social issues are and were total douchebags on good old regular labor and compensation issues. I’m thinking of Amazon’s treatment of warehouse workers, or Google/Apple et al.’s agreement not to hire each other’s staff.

  21. 21
    wmd says:

    Before same sex marriage some companies signaled non-douchebag status by offering domestic partners and their dependents coverage. Mostly this was for same sex couples and some companies explicitly said domestic partnerships were only for couples that could not legally marry. I worked for a company that said heterosexual couples could utilize domestic partner coverage, and that coverage was able to get top notch treatment at Lucille Packard (Stanford Children’s hospital) for my partner’s son’s brain tumor back in 2001.

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