As of June 1, 2011, gay couples in Illinois may now enter into civil unions. Under the Religious Freedom Protection and Civil Union Act, "party to a civil union" is to be inserted into any law that defines spouse, dependents, family, immediate family and next of kin.
So, what does this mean for employers? It means that a variety of employee protections including those set forth in discrimination laws and leave laws, now provide protections for parties to a civil union.
As a result of the new law, employers should:
- Review harassment and EEO policies to include civil union status as a protected class.
- Update leave policies to permit leave taken under such laws as the Illinois Family Military Leave Act and the Victims’ Economic Security and Safety Act, amongst others, to include members of a civil union.
- Determine whether health and benefit plans are subject to ERISA. If subject to ERISA, then the federal Defense of Marriage Act ("DOMA") applies and employers are not obligated to provide benefits to civil union partners.
- If your health and benefits plans are not subject to ERISA, then you must amend plan documents to provide benefits to civil union partners.
- If you are subject to Illinois’ mini-COBRA law and not the federal law, employers should amend their COBRA notices to include parties to a civil union as a qualified beneficiary.
There have been several recent challenges to the constitutionality of DOMA. In response, President Obama has officially declared the policy of the Justice Department to be that the law should be struck down. As a result of the shaky ground DOMA may be on, employers may want to consider offering same sex health benefits even if not obligated to do so by law to avoid claims of sexual orientation or marital status discrimination.