Illinois Set To Legalize Same-Sex Marriages; Employers Must Take Numerous Steps To Comply With The Law By June 2014


On November 20, 2013, Illinois Governor Pat Quinn will sign the Religious Freedom and Marriage Fairness Act, which the Illinois General Assembly passed last week and which will make Illinois either the 15th or 16th state to legalize same-sex marriage. Hawaii's legislature is expected to pass a same-sex marriage law as soon as today and, if it passes, it will likely be signed into law by its governor before the date that Governor Quinn is scheduled to sign Illinois' same-sex marriage law. Illinois' same-sex marriage law will go into effect in June 2014 and will affect employers in several significant respects. First, same-sex spouses in Illinois will have the same legal rights to employee benefits as opposite-sex spouses, including with respect to health insurance coverage, COBRA benefits, etc. In July, we outlined specific steps that employers and their benefit plan administrators will need to take in states that recognize same-sex marriage as a result of the U.S. Supreme Court holding that the federal Defense of Marriage Act was partially unconstitutional.  Those steps will also apply to Illinois employers once this new law goes into effect. At this point, the primary step that employers will need to take will be to review and revise any benefit plan documents which define the term "spouse" so that a same-sex spouse is eligible for equal coverage. Second, same-sex spouses in Illinois must be treated as married for federal and state tax purposes, regardless of where they reside after their marriage, as explained here in September. This means employers may need to modify their payroll practices to stop imputing income for Illinois state tax purposes to an employee with a same-sex spouse. Third, same-sex spouses in Illinois will also be entitled to take leaves of absence under the Family and Medical Leave Act, the Illinois Family Military Leave Act and the Illinois Victims' Economic Security and Safety Act. Similarly, employers will need to update handbooks and policies so that same-sex spouses have the same rights as opposite-sex spouses to bereavement leave, other types of leaves of absences, and any other type of policy or employee benefit. Finally, the Illinois Human Rights Act already prohibits discrimination and harassment based on marital status and sexual orientation, and therefore, employers may not harass or discriminate against employees in same-sex marriages.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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