Employers Confront Growing Confusion over Partner Benefits

Employers Confront Growing Confusion over Partner Benefits (3/05)

The issue of partner benefits continues to cause legal confusion. A recent article in SHRM Forum attempts to decipher the situation...

"As time has gone by, things have gotten muddier, rather than clearer, from a legal perspective," said Todd A. Solomon, a partner with law firm McDermott, Will & Emery LLP in Chicago, speaking March 14 at SHRM's Employment Law and Legislative Conference in Washington, D.C. "Particularly over the past 12 months, companies have faced a number of mixed messages with respect to how they should treat same-sex couples under their benefit plans."

Adding to the confusion, Solomon said, last year Massachusetts became the first (and so far, only) state to recognize same-sex marriages, entitling same-sex spouses to all marriage-related benefits under state employment laws. But last year 13 states also passed constitutional amendments declaring that only marriages between one man and one woman would be legally valid, and a similar amendment to the U.S. Constitution was introduced in Congress.

On March 16, Michigan Attorney General Mike Cox declared that the amendment his state passed in November now bars health care and other benefits for the same-sex partners of state employees.

Meanwhile, current domestic partner laws in New Jersey and California, and a civil union law in Vermont, afford same-sex couples most or all state-recognized spousal rights without recognizing same-sex marriages. But the 1996 federal Defense of Marriage Act (DOMA) bars same-sex spouses from receiving any benefits under federal statutes—from the Family and Medical Leave Act and ERISA regulations to the tax code. To date, 39 states have also passed their own statutory DOMAs that, while easier to amend or revoke than constitutional amendments, still define marriage as "one man and one woman" and bar recognition of same-sex marriages performed in other states. (Click here to link to a chart of statewide marriage laws.)

With some states extending employment law mandates to cover same-sex partners and spouses, while others (and the federal government) enact prohibitions, "juxtaposed against each other, these two trends add up to a lot of confusion about what's legally required, what's optional, and what benefit providers and insurers may be doing," Solomon told conference attendees.

SHRM members can read the entire article here.