The Human Rights Campaign Foundation encourages employers to treat all beneficiaries equally when requesting documentation to determine eligibility. For example, if an employer requires documentation for partner benefits, they should similarly request documentation for spousal benefits.
When defining "families" for employment purposes such as benefits, include "partners"(as well as their children and/or other eligible dependents) as family members equal to opposite-sex spouses. The definition of "partner" should include civil unions or registered domestic partnerships. Furthermore, the definition of “spouse” should not be limited to different-sex couples to ensure that same-sex spouses can fully participate in spousal benefits.
Documentation / Proof of Relationship
If an employer requires proof of eligibility of family members (e.g., in order to enroll a different-sex spouse in benefits, an employee must provide proof of marriage license), and would also require proof of eligibility of same-sex partners, the employer should allow any one of the following:
- Partnership affidavit (as defined by the employer/insurer)
- Municipal domestic partnership registration
- State domestic partnership registration
- State civil union license
- State marriage license
- Marriage licenses issued in other countries
It is not recommended to only allow one of the above types of proof – employees may not be able to or, for legal reasons, may not wish to obtain a particular government-recognized proof of same-sex relationship. For example, allowing only a state marriage license in a state that does not offer marriage would be unnecessarily restrictive. As of June 2009, six states provide marriage for same-sex couples and those marriages are not recognized in most states.
Similarly, employees that have obtained government-recognized proof of same-sex relationship should not have to go through the additional burden of completing a domestic partnership affidavit.
Equal Burden of Proof
Employers should strive to maintain equality in the burden of proof required from eligible beneficiaries of employer benefits for both enrollment and audit purposes. In other words, documentation should not be required of partners if it is not required of spouses. Employers particularly concerned about fraud should consider documentation requirements holistically.
The California Insurance Equality Act of 2004 (AB 2208) requires that health insurance plans in that state treat spouses and domestic partners equally – not only mandating that employers providing spousal benefits must also provide partner benefits, but also precluding employers from asking for documentation for state-registered partners if not also asking for documentation for different-sex spouses.
Employers should recognize any legal proof of relationship and allow it to substitute for the business' individual domestic partnership affidavit, regardless of whether that relationship is recognized in the state where the employee currently resides or works. Doing so allows employees to determine which form of recognition is most appropriate for them, as the laws and eligibility associated with the various government entities vary, and helps employees in the event of possible relocation. This also significantly decreases the burden on the employee and the employer in audit and other situations where eligibility must be re-examined.
Domestic Partner Affidavits
Many employers create a domestic partnership affidavit, which spells out eligibility requirements as defined by the employer, however a January 2005 Business & Legal Reports study found that the number of employers utilizing domestic partnership affidavits is in overall decline.
Affidavits commonly require some form of proof that the individuals are:
- 18 or older
- Not related to each other
- Live together
- Not currently in a domestic partnership, civil union or marriage with a different person
- Mutually responsible (fiscally and legally) for each other
- In an intimate, committed relationship of at least six months' duration*
*If an employer includes a co-habitation requirement, the HRC Foundation encourages employers to keep such a requirement at six months. The 2005 Hewitt Associates study found that 52 percent of companies require a period of one year, while 44 percent require a period of six months.
Of employers that offer partner benefits, the majority — 58 percent — offer benefits to both same- and different-sex partners of their employees (Hewitt 2005). The Human Rights Campaign Foundation primarily considers whether or not an employer offers same-sex partner benefits. However, because of the varying state laws and policies pertaining to changing the sex marker on identification papers or birth certificates, some transgender people have trouble obtaining marriage licenses and would need opposite-sex partner coverage for their partners.
Other Qualified Adult, Legally Domiciled Adult and Plus-One Coverage
Unmarried partners of employees are sometimes eligible for coverage under "Other Qualified Adult,""Legally Domiciled Adult" or "Plus-One" status. In these cases, employers have made benefits available to an adult living with the employee, regardless of marital status or gender, although other limitations may exist depending on the employer. In some cases, spousal coverage does not directly exist, although spouses automatically qualify for Plus-One coverage.
Dependent Children and Other Eligible Dependents
Employers should ensure that the partner's children are covered as eligible dependents, as well as other eligible dependents if covered for different-sex spouses.
Employers should recognize the completion of an affidavit or the attainment of government recognition of a same-sex relationship as a qualifying event suitable for enrollment in benefits outside of the normal open enrollment period. Similarly, the dissolution of a relationship, including the termination of a domestic partnership, civil union or marriage, should be considered a qualifying event.
Termination/Dissolution of Relationships
Benefit enrollment materials should include language indicating the employee's obligations should the domestic partnership end, the terms of which should mirror those of spouses in the event of a divorce. Many employers require employees to notify the employer within 30 days of the dissolution of the relationship, at which point the domestic partner and eligible dependents of the domestic partner may elect COBRA-equivalent benefits continuation coverage.