Business forum: HR and the same-sex marriage act

While the passage of legislation to legalize same-sex marriage in Minnesota has advocates celebrating, the future walk down the aisle won't be completely covered in rose petals when it comes to equality in company-sponsored benefits.

In fact, differences in the way the federal government and the state define marriage has several implications for businesses as they determine how the Minnesota statute will affect their benefit programs.

With the new law taking effect Aug. 1, and a ruling expected this summer by the U.S. Supreme Court on the Defense of Marriage Act (DOMA), a lot is still undecided. In the meantime, here are a few guidelines that can help employers as they evaluate the change to Minnesota law.

Consider state and federal laws when determining benefit policies. Minnesota is the 12th state to legalize same-sex marriage. While some states are making it easier for couples to recognize the unions, there are still hurdles at the federal level when it comes to employee benefits because the U.S. government defines marriage as a union between two individuals of the opposite gender.

The U.S. Supreme Court is currently debating a case relating to DOMA, which denies married same-sex couples a range of benefits that are available to heterosexual couples.

When determining benefits policies in Minnesota, companies first and foremost need to follow all federal laws that have no state equivalent. For example, employee benefit plans covered by ERISA (Employment Retirement Income Security Act) do not change. Benefits that remain federally mandated include Social Security benefits, pension plan benefits, spousal immigration rights and income tax benefits.

In the case where a law has both a state and federal statute on the same topic, or only a state law, protections will now extend to the same-sex spouse. For instance, employers required to provide 12 weeks of unpaid leave for an employee with a serious medical condition, or to care for a spouse or close family member under FMLA (Family Medical Leave Act), need to extend those protections. Minnesota has state FMLA provisions and employers are required to provide those benefits to the same-sex spouse.

Review human resource policies. The upcoming change to Minnesota law makes this a good time to audit human resource documents to update policies and practices that previously applied to married employees so they can be worded to apply equally to same-sex married couples. Employers should review new employee forms, benefit forms and other documents to make sure they are gender-neutral in relation to identification of marital status and spouse.

Businesses should also update personnel policies that relate to state protections, such as FMLA, to include options for same-sex couples. This includes reviewing policies and procedures to ensure that the same requirements are being applied to both same-sex and opposite-sex couples for the purposes of establishing benefit eligibility.

In addition to recognizing same-sex unions, Minnesota has a Human Rights Act that protects individuals on the basis of their sexual orientation. If they haven't already, businesses should review employee manuals and policies to ensure they are not discriminatory on the basis of sexual orientation.

Provide leadership training. With any statutory change, it is a good idea for employers to provide training for supervisors and managers to ensure fairness and equity in their treatment of employees. Issues to be discussed include providing insight into the rights and obligations of same-sex couples. All managers should be educated about employee benefits, such as medical leave laws, that apply to same-sex couples.

While the Minnesota law to legalize same-sex marriage will bring changes to company policies, we should also receive additional clarity at the federal level once the U.S. Supreme Court announces its decision on the case involving DOMA.

About the author: Sara Gullickson McGrane is an employment law attorney with the Minneapolis law firm Felhaber, Larson, Fenlon & Vogt. She has more than 20 years of legal experience and previously served as the assistant attorney general for the state of North Dakota.