Issue Briefs

Following are the new Presidential memo and follow-up guidance from OPM on domestic partner benefits.

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Extension of Benefits to Same-Sex Domestic Partners of Federal Employees

For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the Office of Personnel Management (OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the Department of Justice, has provided me with a report recommending that all of the identified benefits be extended.

Accordingly, I hereby direct the following:

Section 1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:

(a) The Director of OPM should take appropriate action to:

(i) clarify that the children of employees’ same-sex domestic partners fall within the definition of "child" for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;

(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as "family members";

(iii) issue a proposed rule that would clarify that employees’ same-sex domestic partners qualify as "family members" for purposes of noncompetitive appointments made pursuant to Executive Order 12721 of July 30, 1990;

(iv) issue a proposed rule that would add a Federal retiree’s same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to 5 U.S.C. 8339(k)(1), 8420;

(v) clarify that under appropriate circumstances, employees’ same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under 5 U.S.C. 5522-5523;

(vi) amend its guidance on implementing President Clinton’s April 11, 1997, memorandum to heads of executive departments and agencies on "Expanded Family and Medical Leave Policies" to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives’ health or care needs, may be used to meet the needs of an employee’s same-sex domestic partner or the same-sex domestic partner’s children; and (vii) clarify that employees’ same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.

(b) The Administrator of General Services should take appropriate action to amend the definitions of "immediate family" and "dependent" appearing in the Federal Travel Regulations, 41 C.F.R. Chs. 300-304, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.

(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees’ spouses and their children to employees’ same-sex domestic partners and their children.

(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees’ spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees’ same-sex domestic partners and their children.

Sec. 2. Continuing Obligation To Provide New Benefits.

In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners’ children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.

Sec. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.

Sec. 4. Reporting. By April 1, 2011, and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.

Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law or Executive Order to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA # # #

 

 

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

From: John Berry

Director

Subject: Implementation of the President’s Memorandum Regarding Extension of Benefits to Same-Sex Domestic Partners of Federal Employees

In a June 17, 2009 Memorandum regarding Federal Benefits and Non-Discrimination, President Obama observed that “millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners.” He further noted that although “[l]eading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex,” Federal departments and agencies may only do so where authorized by law. The President thus instructed heads of executive departments and agencies (agencies) to review the benefits they offer to determine whether any could be extended to the same-sex domestic partners of their employees under current law and to report the results of their review to OPM within 90 days. OPM received the agency reports and, in consultation with the Department of Justice, submitted a report to the President recommending that all of the benefits identified by agencies be extended in order to attain greater equality for the Federal workforce and to assist the Federal Government in competing with the private sector for the best and brightest employees.

Subsequently, in a memorandum dated June 2, 2010, President Obama directed agencies to extend a host of benefits to their employees’ same-sex domestic partners as permitted by law. He also directed me to issue guidance to ensure consistent and appropriate implementation of his memorandum. This memorandum constitutes OPM’s guidance.

I. DEFINITION OF “DOMESTIC PARTNER”

For purposes of ensuring consistent implementation of the President’s memorandum, a “domestic partner” is a person in a domestic partnership with an employee or annuitant of the same sex.[1] The term “domestic partnership” is defined as a committed relationship between two adults, of the same sex, in which the partners—

(1) are each other’s sole domestic partner and intend to remain so indefinitely;

(2) maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);

(3) are at least 18 years of age and mentally competent to consent to contract;

(4) share responsibility for a significant measure of each other’s financial obligations;

(5) are not married or joined in a civil union to anyone else;

(6) are not the domestic partner of anyone else;

(7) are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside;

(8) are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish that an individual is in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. 1001, and that the method for securing such certification, if required, shall be determined by the agency; and

(9) are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.

Agencies may choose to secure documentation (such as a sworn affidavit) to establish the existence of a domestic partnership but they are not required to do so. In determining whether to require documentation, agencies must consider whether a similar requirement is imposed upon opposite-sex spouses, consistent with the President’s intention that same-sex domestic partners be treated in the same manner as opposite-sex spouses for purposes of these benefits, to the extent permitted by law.

II. BENEFITS OFFERED ON AN AGENCY-BY-AGENCY BASIS

In their reports to OPM, many agencies identified benefits that may not be available Government-wide, but that could be extended (or already have been) to the same-sex domestic partners of agency employees (and their domestic partners’ children). Section 1.c of the President’s June 2, 2010 memorandum directs agencies, to the extent consistent with law, to provide to the same-sex domestic partners of agency employees (and their children) the same level of access to these benefits as is provided to spouses (and their children). To ensure the fullest possible application of the requirements of the President’s memorandum the following benefits should be made available to same-sex domestic partners[2] to the same extent that such benefits are available to spouses (and their children):

* credit union membership;

* access to fitness facilities;

* hardship transfers to maintain or improve the health of a domestic partner to the same extent provided to opposite-sex spouses;

* planning and counseling services (including briefings on employee pay and allowances, career counseling, retirement counseling, financial counseling, resource and referral services, planning sessions for permanent change of duty station, deployment support, parenting support groups, and elder care support groups);

* family assistance services (including adoption counseling, parenting counseling, childcare, elder care, financial planning, and home improvements);

* family and morale/wellness/recreation (MWR) events (including barbeques, golf outings, or awards ceremonies);

* access to medical treatment;

* access to lodging or allowances;

* joint consideration of transfers; and

* accidental death and dismemberment insurance.

III. BENEFITS OFFERED BY NON-TITLE 5 AGENCIES

Section 1.d of the President’s June 2, 2010 memorandum further provides that those agencies not governed by Title 5, U.S. Code, should take such action as is necessary to ensure that the benefits being offered to their employees’ spouses (and their children) are also offered at an equivalent level, wherever legally permissible, to their employees’ same-sex domestic partners (and their children), including the domestic partner (and their children) of agencies’ non-appropriated fund instrumentalities. The types of benefits already being offered by one or more agencies falling into this category include:

* health insurance premium reimbursement program[3];

* dental insurance (including for retirees);

*vision insurance;

* dependent life insurance;

* relocation assistance and expense program;

* employment opportunities for spouse/same-sex domestic partner upon permanent transfer of employee;

* business travel accident insurance;

* receipt of transferred annual leave to provide care to same-sex domestic partner with medical emergency;

* reimbursement of up to $250 (less taxes) for eligible expenses of employee and same-sex domestic partner, including for fitness center memberships, physical exams, and homeowners insurance; and

* expressions of sympathy policy recognizing hospitalization, illness, or death of family member, including a same-sex domestic partner, with a floral arrangement, fruit basket, or donation to charity up to $80.

IV. CONTINUING OBLIGATION TO PROVIDE NEW BENEFITS

Agencies should pay particular attention to Section 2 of the President’s June 2, 2010 memorandum. In that section, the President has imposed an on-going obligation for agencies to make sure that any new benefits they make available to their employees’ spouse (or spouse’s children) also be made available to employees’ same-sex domestic partners (or their children). Agencies should keep this direction in mind when reviewing agency regulations, policies, collective bargaining agreements, and other potential sources of new employee benefits.

V. REPORTING REQUIREMENTS

Section 3 of the President’s June 2, 2010 memorandum authorizes me to instruct agencies to submit reports on the status of their efforts to implement the directions contained in the memorandum, in such form and manner as I prescribe. Accordingly, I am instructing agencies to include information on the results of their implementation efforts in their annual Human Capital Management Reports. For each of the benefits identified in the reports the agency submitted to OPM pursuant to the President’s June 17, 2009 memorandum, as well as any additional benefits it may have identified, each agency must (a) identify any benefits it has already extended to cover same-sex domestic partners and/or their children; (b) identify each benefit that is to be extended; (c) provide an update on the status of extending the benefit; and (d) include a projected date by which the benefit will be extended. Each agency’s reporting obligation shall continue until such time as it reports that all benefits covered in its reports that are capable of being extended have in fact been extended to cover their employees’ same-sex domestic partners and their children, as applicable.


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[1] Though Federal law does not currently recognize same-sex marriages, individuals in same-sex marriages recognized by a State or the District of Columbia are eligible to qualify for the benefits covered by the President’s Memorandum if they meet the definition of “domestic partner” contained herein.

[2] In consultation with the Department of Justice, we have concluded that there is no statutory bar that would preclude agencies from extending these benefits to their employees’ same-sex domestic partners. Changes in agency regulations, policies, contracts, negotiated agreements, or other documents, however, may be necessary to implement the President’s direction.

[3] Under this program, employees receive reimbursement of a portion of the premium paid to insure their same-sex domestic partner. This benefit is limited to employees enrolled in the Federal Employees Health Benefit Plan (FEHBP) and whose same-sex domestic partner has no option to enroll in another insurance program, including Medicare or Medicaid. The amount of the reimbursement equals the amount that an employee with a dependent spouse would receive under FEHB. Taxes are withheld from the amount of the reimbursement.