Employers that haven’t adapted the eligibility rules of their benefits plan to include same-sex partners are breaking the law. Why? Despite the fact that the recent same-sex marriage bill remains unsettled, technically, your company already should be in compliance with current provincial and federal law.
While many employers are complying with the law, there are likely some that haven’t kept up with legislative changes that took effect in the late 1990s and 2000.
Let’s take a look at the history.
Over the course of the last four years, federal and provincial legislation has put same-sex couples on an equal footing with opposite-sex common-law partners.
In fact, it’s been the influence of the provincial courts in British Columbia, Ontario and Quebec that has created the groundswell of interest and need for change.
In Ontario, the initial step to address the needs of the changing human rights environment dates back to the late 1970s. But it was a handful of crucial cases in the 1990s, which were handled through the Ontario Human Rights Commission that paved the way for real change. In the fall of 1999, the Ontario government passed legislation granting same-sex couples in the province the same rights and obligations as common-law spouses.
It was Bill C-23, the Modernization of Benefits and Obligations Act, which was passed by the Government of Canada in 2000, which forced further changes in the system on a federal level. This legislation extends same-sex couples the same rights and obligations applied to common-law heterosexual couples. More than 60 federal statutes in areas such as pensions, mortgages, immigration and taxation were affected.
Although insurance carriers have been adapting their policies to include same-sex partners for more than 15 years, Bill C-23 prompted insurers, like Manulife Financial, to amend their standard policies across Canada to recognize a plan member’s same-sex partner as an eligible dependent spouse.
Bill C-23 did not address the traditional definition of “marriage”. This left room for further political debate. That brings us to the current status of legalizing same-sex marriages.
Earlier this year, the British Columbia and Ontario Court’s of Appeals gave gay and lesbian couples the right to marry. That led to the federal debate.
Following the highly publicized parliamentary vote in September, a federal bill legalizing same-sex marriages was sent to the Supreme Court of Canada for a non-binding legal opinion on whether it passes constitutional muster. It is not expected to be introduced until at least the fall of 2004.
What does this mean to employers?
Today, employers should have the same eligibility rules for same-sex couples as heterosexual common-law partners. For example, if the benefits plan provides eligibility to common-law partners after a couple has been living together for a year, the same rule should apply to same-sex couples.
If the definition of a “marriage” is changed to allow same-sex partners to marry, then ultimately, employers that provide “family” and/or “dependent” coverage will have to provide immediate eligibility to all married couples regardless of sexual orientation.
How are employer’s costs affected?
Beyond the legal issues, employers have been worried about the financial impact of extending benefits to same-sex couples.
Resistance to change over the last ten years has stemmed from the perception that the sponsoring companies costs could significantly increase. This perception has been largely unfounded.
While there is no collective data reported on numbers of same-sex couples that enrol in their employer’s plans, here are some of the statistics that might suggest it is marginal at best:
- Approximately 70 per cent of plan members in a typical or average employer sponsored plan have family or dependant status and the remaining 30 per cent have single status. Therefore, a possible increase in enrollment would only come from the 30 per cent employee base with single status.
- In the 2001 Census, Statistics Canada counted approximately 34,200 same-sex common-law couples across Canada, which represented only .5 per cent of all couples.
- Human Immunodeficiency Virus (HIV), which was originally only associated with gay men, has caused concern about the potential health-related costs for group benefit plans. However, it doesn’t appear to have generated the cost increases that were initially feared.
- Health Canada estimates 50,000 people in Canada are living with HIV. While the numbers have increased, new drug therapies have increased the life expectancy with those living with AIDs. Further, government-sponsored programs often cover the drugs that are used to control the disease.
Clients of McGowan Insurance Services are contractually covered for same-sex partner eligibility under the standard contract of their respective insurance company. However, if your company hasn’t realigned its human resources policies to include same-sex partners, it should be doing the following:
- Carefully review your human resources practices, policies and procedures to ensure compliance with legislation.
- Assess the language and messages used in all benefits plan communications to employees and modify the information as appropriate.
- Amend your benefit plans to clarify the definition of spouse to include same-sex couples.
The bottom line is that a progressive employer acknowledges and plans for the new realities facing the workplace. By staying on top of the needs and issues of your employees, you can proactively address your human resources policies.
If you have specific questions on your organization’s internal policies and procedures, contact Don McGowan at (416) 805-9999.