Illinois' Civil Union Law Has Broad Implications for Employers

By Jeremy Stewart, Littler Mendelson P.C. Feb 11, 2011

On Feb. 1, 2011, Illinois Gov. Pat Quinn signed S.B. 1716, the Illinois Religious Freedom Protection and Civil Union Act ("Civil Union Act"), which will become effective June 1, 2011. The Civil Union Act is similar to other states' laws that summarily provide the same rights to parties to a civil union—same- and opposite-sex couples—as that of spouses. However, like in other states, the Illinois law does not label these unions as "marriage."

The new law provides that a "party to a civil union" is to be included in any definition used in state law where the term "spouse," "family," "immediate family," "dependent," "next of kin" and other terms that denote "spousal relationship" are stated. The Civil Union Act stops short of granting same-sex couples the right to "marry"; however, it does guarantee "[a] party to a civil union ... the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses." In addition, while the Civil Union Act does not go into effect until June 1, 2011, it guarantees that previously unrecognized marriages, civil unions and similar legal relationships, including those of same-sex couples, that were entered into in another jurisdiction and that meet the qualifications of the Civil Union Act will be recognized in Illinois as a civil union (excluding common-law marriages).

Illinois will be the sixth state to provide equal state-level spousal rights to same-sex couples entering into domestic partnerships or civil unions where marriage is not available to same-sex couples. As of February 2011, other states with such laws were California (recognition for certain marriages performed within a specified time period), Nevada, New Jersey, Oregon and Washington. Marriage between same-sex couples is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia.

In addition, Illinois is one of only 22 jurisdictions (21 states and the District of Columbia) that extend protection from employment discrimination to individuals on the basis of sexual orientation.

Health and Benefits Plans

In light of the expansive definition of the term "party to a civil union" in the Civil Union Act, the new law will provide greater benefits to parties to an Illinois civil union than are provided under federal law, which, in large part, does not grant same-sex couples who enter into civil unions or domestic partnerships the same rights and benefits as married couples; the federal Defense of Marriage Act (DOMA) defines "marriage" as "a legal union between one man and one woman as husband and wife," and the word "spouse" refers to "a person of the opposite sex who is a husband or a wife." An immediate area of potential conflict can be found in employee benefits.

Whether an employer's benefits plan will be affected by the Civil Union Act will depend largely on whether the benefits are subject to the Employee Retirement Income Security Act (ERISA). An employer may not be required to offer coverage for same-sex spouses or domestic partners under the Civil Union Act if the employer's health and benefits plan is subject to ERISA.

Additionally, there are certain federal benefits involving taxes that an employer probably cannot offer individuals who are in same-sex civil unions or marriages as a result of the definition of marriage found in the federal DOMA, including pretax premiums for partners, if the partner is not a qualified tax dependent. Although no court in the 7th Circuit has been faced with a challenge to the constitutionality of DOMA, this area of the law is subject to rapid change. In 2010, DOMA was found to be unconstitutional in two cases in Massachusetts (Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Dep't. of Health and Human Services).

While ERISA pre-empts state laws that apply to an ERISA benefit plan, it does not pre-empt state laws that regulate insurance. Thus, insurance companies issuing policies in Illinois may now be required to offer coverage for the partners of employees who enter into a civil union in Illinois or who have previously entered into a civil union in another state.

As a practical matter, Illinois employers that do not already do so should consider extending insurance coverage voluntarily to employees in civil unions and domestic partnerships to avoid potential claims arising out of such relationships, including, but not limited to, charges of discrimination based on sexual orientation or marital status. Moreover, to the extent normal qualifying conditions are met, the Civil Union Act will likely extend Illinois' Health Insurance Continuation Rights (mini-COBRA) to same-sex couples if the employer is not subject to federal COBRA.

Implications of the Act

It is still too early to tell what legal challenges, if any, the Civil Union Act will face and how far-reaching it will be following enactment. For example, the Illinois Family Military Leave Act requires Illinois employers to provide unpaid leave to individuals if certain members of their family, including spouses, are called away on military duty. If interpreted literally, the Civil Union Act could extend the protections afforded by the Family Military Leave Act to couples who enter into civil unions.

In addition to determining if health and benefits plans comply with the Civil Union Act and define the term "spouse” appropriately, employers should be mindful of other areas that might be affected by the law, including:

Terms and conditions of employment contracts and/or collective bargaining agreements.

Employment tax liability, especially under state law.

Leave-of-absence policies where “spouse” has not been defined.

Statutory leaves such as family medical leave and leave for victims of domestic abuse, sexual assault and related crimes.

Other policies (such as sick leave that applies to family members' illnesses), procedures and training.

In light of the likely broad changes the Civil Union Act will have on the laws of Illinois, employers in the state should consult an experienced employment attorney to ensure that their policies (including health and benefits plans), handbooks and harassment training programs are in compliance with it.

Jeremy Stewart is an associate in law firm Littler Mendelson's Chicago office.

Reposted with permission. © 2011 Littler Mendelson P.C.

All rights reserved.​

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