Firms block gays' benefits, cite US law

Some of the largest employers in Massachusetts have decided not to extend health benefits to spouses of gay and lesbian employees, saying their federally regulated health plans are not bound by the Massachusetts court ruling permitting gay marriage.

NStar Corp., General Dynamics Corp., FedEx Corp., the Adecco temporary employment agency, and Caritas Christi Health Care are among employers that do not provide the same health benefits to spouses of married gay workers in Massachusetts available to heterosexual married couples.

These employers provide medical care through what are known as self-insured health plans, in which the employer, not an insurer, collects the premiums and pays the medical and hospital bills of its workers. These employers said they are not required to cover same-sex spouses because self-insured plans are regulated by federal law, which defines marriage as a union only between a man and a woman. Sixty-six percent of large US employers with more than 500 workers are self-insured, according to Mercer Human Resource Consulting.

When a Massachusetts worker in FedEx’s air-delivery unit notified her employer of her same-sex marriage and inquired about health benefits, she received a July memo from the Memphis headquarters saying her spouse would not qualify. ‘‘FedEx is not discriminating against you because of your sexual orientation,’’ FedEd said. ‘‘Rather, the company is following the terms and conditions of its benefit plans’’ under federal law.

Caritas Christi, an affiliate of the Roman Catholic Archdiocese of Boston that operates St. Elizabeth’s Medical Center and five other hospitals, also is self-insured. Officials there cited the church’s opposition to gay marriage as the reason not to extend coverage.

‘‘We have to be faithful to the teachings of the Catholic Church,’’ Caritas spokeswoman Diana Franchitto said.

Adecco, which offers benefits to the same-sex domestic partners of employees but not to the same-sex partners of temp workers, said it is considering expanding same-sex, domestic-partner coverage to temp workers in 2005.

Denial of same-sex spousal benefits affects a relatively small number of people. Fewer than 5,000 same-sex couples have married in the wake of the state Supreme Judicial Court’s decision legalizing gay marriage as of May 17. Many major employers and unions that self-insure gave health benefits to gay workers’ spouses in the state. They include Gillette Co.; National Grid USA, which operates Massachusetts Electric; UniteHere, the union of garment and hotel workers; and the New England Regional Council of Carpenters.

Lawyers representing companies and employees said it is difficult to challenge employers who cite federal law to deny benefits. Self-insured employers can cover same-sex spouses ‘‘if they want, but you can’t compel them,’’ said Alden Bianchi, partner with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo in Boston.

But the Boston advocacy group Gay & Lesbian Advocates & Defenders said all married couples, including same-sex couples, should be treated equally under self-insured health plans. Michele Granda, staff attorney for the group, said gay marriage throws open the door to reinterpretation of a host of federal and state laws, particularly in Massachusetts where state antidiscrimination law protects people based on their sexual orientation. ‘‘There are some good legal reasons why we might be able to challenge’’ denial of benefits, she said.

Self-insurance is a common way employers try to save money amid spiraling healthcare costs. Companies take on the risk that large numbers of claims in a given year could drive up payouts for employees’ medical treatment, but they benefit from reducing or eliminating premiums to insurers that would assume those risks.

General Dynamics, which employs 3,000 workers at operations in Quincy, Needham, Taunton, and the Pittsfield area, said it complies with federal law in excluding same-sex spouses.

‘‘In determining the definition of dependent spouse, General Dynamics applies the spouse definition from the federal Defense of Marriage Act,’’ known as DOMA, the Virginia defense contractor said in a statement.

The act, signed by President Bill Clinton, is also the legal underpinning for excluding gay and lesbian spouses from federal programs, such as Social Security.

The act states ‘‘the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex.’’ Self-insured plans are regulated by a federal pension law, the Employee Retirement Income Security Act.

For gay spouses seeking coverage, said Sharen Litwin, partner with the Boston law firm Kotin Crabtree & Strong, ‘‘DOMA’s the problem.’’

At NStar, the state’s second-largest electric utility, spokesman Michael Durand said spousal benefits for gay employees are ‘‘discretionary’’ and, in the case of union workers, subject to collective bargaining.

John Richard, an NStar cost-accounting technician, married Tom Cerruto on May 23. Richard said he and another NStar employee, whom he declined to name, were each turned down when trying to enroll their new spouses in the health plan. Their union, Local 369 of Utility Workers Union of America, told them to file a grievance.

Cerruto is now covered by a ‘‘more expensive’’ health plan through his own employer, the nonprofit American Student Assistance, Richard said. The issue isn’t money.

‘‘I don’t feel valued,’’ Richard said. NStar ‘‘has been on this diversity kick, ..... but when this came up, they dropped the ball.’’

Same-sex spousal benefits are among the issues as NStar and Local 369 work on a contract to replace one that expires next spring.

Kimberly Blanton can be reached at blanton@globe.com.