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Being proud of your benefits

MUG BIO: Carrie Byrnes is a partner in Michael Best's employee benefits and executive compensation practice and chair of the Women’s Development Group. She can be reached at cebyrnes@michaelbest.com or (312) 596-5838.

Carrie Byrnes is a partner in Michael Best’s employee benefits and executive compensation practice and chair of the Women’s Development Group. She can be reached at cebyrnes@michaelbest.com or (312) 596-5838.

Pride month is as great a time as any for an employer to revisit its benefit programs and policies to ensure that the benefits being offered not only comply with the dynamic legal landscape, but also align with the employer’s intention on LGBTQIA+ inclusivity and equality. Certain practices or benefit policies may seem neutral on their face, but operate in a potentially discriminatory manner. A few examples may include benefit plan eligibility, health plan fertility and transgender services:

BENEFIT PLAN ELIGIBILITY

Our benefit plans only extend benefits to spouses, not domestic partners. Isn’t this OK since all states now recognize same sex marriage?

Maybe. While the Supreme Court’s 2015 decision struck down all state bans on same-sex marriage and ruled that marriage is guaranteed to same sex couples by both the Due Process Clause and the Equal Protection Clause, certain plan sponsors/employers have continued to allow domestic partner coverage for health and other welfare benefits.

Why is this potentially important now that same sex marriage is allowed in all states? As many as 30 states still do not specifically prevent/protect against sexual orientation discrimination (e.g., in housing and employment matters). Thus, there are some real remaining risks in “coming out” and being officially married (rather than being “roommates” or “friends”) that are not protected in all states.

As a quick reminder, the Affordable Care Act (ACA) mandates that certain employers (generally those with at least 50 full-time equivalent employees) either choose to offer coverage for employees and their dependents, which can include a child or other qualifying relative an employee claims on their annual tax return — but not spouses — or pay a tax. Thus, while there is no legal requirement to offer health benefits to domestic partners (or even any spouses for that matter), this may be considered a “best practice” unless/until a law such as the Equality Act is enacted.

The Equality Act is a piece of legislation that would expand protections of LGBTQIA+ people by amending certain civil rights laws — including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several laws regarding employment with the federal government — to explicitly include sexual orientation and gender identity as protected characteristics. The Equality Act is awaiting a vote in the Senate as of the date of drafting this article.

FERTILITY SERVICES

Our health insurance offers certain fertility coverage that is not explicitly exclusive of anyone, including LGBTQIA+ couples. Is this satisfactory?

The answer again may be “maybe.” However, many policies/plans provide fertility services only to those that are “infertile,” and then define infertility as the inability to conceive a child after a certain period (often one year) of unprotected sexual intercourse. Because this construct is not inclusive of LGBTQIA+ individuals who are unlikely to be able to conceive through sexual intercourse (ever), some large employers have enhanced benefits for LGBTQIA+ couples and “abandoned” the requirement that a medical diagnosis of infertility be made prior to authorizing in vitro fertility (IVF) services and/or surrogacy coverage.

Options for coverage of expanded fertility health care can be vetted; however, enhancement of these coverages comes with a cost.

On a separate but related note, the transgender population may be left out if/to the extent a health plan may not cover reproduction services, including, but not limited to, sperm preservation in advance of hormone treatment or gender dysphoria surgery, cryopreservation of fertilized embryos, oocyte preservation, surrogate parenting, donor eggs, donor sperm and host uterus. As exploration of these matters continues, an employer seeking more inclusivity might consider confirming whether and to what extent its health plan provides such benefit coverage.

On a final related note, we understand that the American College of Obstetrics and Gynecology (ACOG) committee opinion (2017) provides guidance on healthcare for certain transgender patients, including counseling about fertility and fertility preservation prior to surgical treatment.

Confirming whether this type of counseling is covered under the organization’s plan may be appropriate.

It is our opinion that many employers consider these issues from a holistic approach, e.g., considering the availability of any adoption benefits and parental leave benefits that may apply for LGBTQIA+ team-members may be appropriate.

TRANSGENDER HEALTH CARE

Our health plan doesn’t exclude care for transgender individuals, is that enough?

Once more – the answer is “maybe.” It may be worthwhile to make an explicit statement and/or to take other steps to ensure that the employer’s group health plan covers equal care for transgender people including those who are transitioning.

Again, while coverage may not be gender-specific limitations on coverage, gender dysphoria and gender reassignment surgical procedures may not be addressed. The specific services provided for treatment of gender dysphoria may include (without limitation) psychotherapy, cross-sex hormone therapy, puberty suppressing medications and/or testing to monitor the safety of hormone therapy. Gender reassignment surgical procedures may be covered as well (upon meeting certain criteria) in the category of services pertaining to surgical procedures that are deemed medically necessary (and not carved out under the “cosmetic” bucket).

To the extent gender dysphoria treatment and gender reassignment surgical procedures are not covered, it may be appropriate for an employer to explore the practical implications (including cost) of adding these procedures.

From a legal perspective, note that a provision in the ACA prohibits entities that receive federal funding for health coverage from denying coverage based on sex, gender identity and sex stereotyping. Generally speaking, the Americans with Disabilities Act and Title VII of the Civil Rights Act have also been broadly interpreted by several courts to protect transgender individuals from discrimination. Note, however, that many state laws allow health insurance plans to exclude transgender-related health care from coverage. If transgender coverage is not provided (e.g., in perceived “parity” with surgical and mental health services provided to the non-transgender population), a claim may be made under one of these laws.

As a starting place, we recommend an employer consider a deeper dive with its current carrier to confirm the specifics of coverage offered — and intended to be offered.

While there is no “one size fits all” approach to LGBTQIA+ benefits, thoughtful exploration and decision-making are paramount to an inclusive environment.

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