How the Illinois Civil Union Act Affects Employers

By Kelly Cahill

Illinois passed the Civil Union Act in February of this year, and it has gone into effect as of June 1, 2011. The primary purpose of the law is outlined in Section 5 of the Act which states it is to “provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.”

According to Section 20 of the Act, a party to a civil union will enjoy the same benefits afforded to spouses, “whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.” While opposite sex couples can also be parties to a civil union, it is Illinois’ inclusion of same sex couples that most pronouncedly sets this Act apart from other legislation regarding the legal recognition of couples, such as marriage statutes that are still defined in Illinois as between one man and one woman.

The Civil Union Act is, however, a creature of state law, and therefore it does not necessarily impact any rights or benefits conveyed by federal law. In fact, the Civil Union Act is limited by the federal Defense of Marriage Act (DOMA) which defines marriage as a “legal union between one man and one woman as husband and wife.” So under DOMA the term “spouse” refers to “a person of the opposite sex who is a husband or a wife,” whereas the Civil Union Act more broadly includes Civil Union partners under “any definition used in state law where the term ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’, and other terms that denote the ‘spousal relationship.’”

The Civil Union Act impacts the workplace in several ways, most notably, employee benefits. However, the Act only impacts state governed employee benefits and not benefits derived from federal law. So, for example, if an employer’s health and benefits plan is subject to ERISA, then the Act would not apply (government entities, including municipal governments, as well as churches are exempted from ERISA, therefore the Act would generally apply to benefit plans of those entities unless particular benefits therein are governed by federal law). However, when an insurance company issues a policy in Illinois, coverage may now have to be offered to a civil union partner of the employee. On the other hand, any pre-tax benefits would not fall under the Act as those are all governed by federal law.

Other examples of state benefits would include the following: sick leave, if allowed to be taken to care for a dependent (however, the Family Medical Leave Act (FMLA) would not apply, because it is a federally mandated benefit); the Victims’ Economic Security and Safety Act (VESSA); The Illinois Family Military Leave Act; state spousal benefits such as workers’ compensation, pension, state tax benefits; and Illinois mini COBRA under the Insurance code.

Another interesting twist is that DOMA only prohibits federal benefits for parties of the same sex. If the parties are opposite sex, many federal laws define spouse by looking to state law. In Illinois, partners in a civil union are defined as a “spouse,” so that an opposite sex couple in a civil union may very well qualify for federal benefits such as FMLA leave, health insurance, social security tax benefits, etc., while same sex partners in a civil union would not.

It should be noted that this entire issue is extremely new, and there is little exact guidance as to how the Civil Union Act will be judicially interpreted to interplay with other laws. Thus, the primary guideline is to determine whether the benefit in question is derived from state or federal law:

  • If it is an Illinois state benefit, the benefit would generally apply to partners in a civil union regardless of whether they are the same or opposite sex.
  • If the couples are opposite sex and the benefit is based on federal law, the federal law must be examined to see how it defines “spouse.” If the law refers back to the state’s definition, then the employment benefit would arguably be granted because the Civil Union Act considers partners in civil unions to be spouses.

© 2011 Zukowski, Rogers, Flood & McArdle