New Hampshire Civil Union Law Goes Into Effect
On January 1, 2008, New Hampshire’s civil union law became effective. The law authorizes same-sex couples in New Hampshire to enter into civil unions, and makes same-sex couples “entitled to all the rights and subject to all the obligations and responsibilities provided for in state law” that apply to heterosexual couples in traditional marriages.
New Hampshire has become the fourth state to enact a civil union law, joining Connecticut, New Jersey and Vermont. Various other states, including California, the District of Columbia, Hawaii, Maine, Oregon and Washington, have similar laws that are typically styled as “domestic partnership” laws, allowing same-sex couples to enjoy certain spousal benefits, such as hospital visitation rights and inheritance without a will. (The Oregon domestic partnership law, which was scheduled to take effect on January 1, 2008, was stayed by a federal judge on December 28, 2007, in connection with a challenge to its validity.) Massachusetts remains the only state that allows same-sex marriage.
The employment-related implications of the New Hampshire civil union law are complex. This results largely from the interplay between state and federal law. In 1996, the United States Congress passed the Defense of Marriage Act (the “DOMA”), which defines “marriage” in any federal law as a legal union “between one man and one woman.” The DOMA also defines the word “spouse” as a person of the opposite sex who is a husband or wife. As a result, civil unions are not recognized as “marriages” under federal law. This means that civil union partners are generally not entitled to “spousal” benefits under federal law.
This conflict is expected to pose numerous challenges in the administration of employee benefits in New Hampshire. To illustrate, although the New Hampshire civil union law appears to entitle civil union partners to cover each other under family group health and dental plans, the employee will not be entitled to a federal pre-tax deduction for the cost of the premium amount allocated to coverage for the civil union partner. This is because the civil union partner is not a “spouse” for purposes of this federal benefit.
Similarly, and by way of further example, employees in New Hampshire who are covered by the Family and Medical Leave Act still may not take time off under this federal law to care for their civil union partners—again, because civil union partners are not “spouses” within the meaning of federal law—although employers may voluntarily provide an identical benefit to civil union partners by contract or policy.
Clearly, though, employee spousal benefits governed solely by New Hampshire law must now be extended to civil union partners. This includes employee spousal benefits required by state statute, as well as employee spousal benefits provided through employment contracts and policies.
We recommend that organizations with New Hampshire employees promptly audit their employee benefits and payroll policies and practices to ensure that (a) all employee spousal benefits implicating both federal law and the New Hampshire civil union law are administered in a way that violates neither and complies with both, and (b) all employee spousal benefits governed solely by New Hampshire law extend equally and unambiguously to civil union partners.
We are available to address any questions you may have, and to assist as needed.