• How Will The Ruling On Same Sex Marriage In Pennsylvania Affect Employers?
  • May 30, 2014 | Authors: Harris T. Booker; David J. Ledermann; Jill Sebest Welch
  • Law Firm: Barley Snyder - Lancaster Office
  • By now, you have probably heard that last Tuesday a federal trial court in Harrisburg invalidated Pennsylvania’s laws regarding same sex marriage—both the ban against same sex marriage within Pennsylvania and the ban against recognizing valid same sex marriages from other states—as unconstitutional. In Whitewood v. Wolf, a Pennsylvania federal court joined 12 other federal district courts across the nation that have declared same sex marriage bans in their states unconstitutional following the U.S. Supreme Court ruling striking down the definition of marriage in the federal Defense of Marriage Act. Pennsylvania Governor Tom Corbett announced Wednesday that he will not appeal the decision. Consequently, same sex marriages are now permitted in Pennsylvania, and out of state same sex marriages are also valid in Pennsylvania. Nineteen states across the country either have legalized same sex marriage or have had their bans on same sex marriage struck down. It seems likely that one of these cases will soon make its way to the United States Supreme Court, which will have the last word regarding whether statewide bans on same sex marriage violate the Constitution.

    But assuming that the Whitewood decision stands, how will this ruling affect Pennsylvania employers? Although the full implications for employers are not fully known at this time, two areas that will be affected involve Family and Medical Leave Act (FMLA) responsibilities and employee benefits issues.

    Family and Medical Leave Act Considerations

    For FMLA purposes, the federal Department of Labor last year announced that the law of the state where an employee resides would be used to determine whether an employee has a lawful spouse. Therefore, prior to the recent Whitewood decision, employees resident in Pennsylvania who had a same sex spouse based on a ceremony in another jurisdiction had no FMLA rights in Pennsylvania because that marriage was not recognized in Pennsylvania. But because of the Whitewood decision, those prior marriages—and also new same sex marriages entered into in Pennsylvania—are now recognized for FMLA purposes. Accordingly, Pennsylvania employers should now ensure compliance with the federal law by updating their FMLA policy, forms, and practices to provide spousal leave benefits for recognized same sex marriages. This includes FMLA leave for the following employees:

    • Employees who need to care for a same sex spouse with a serious health condition;
    • Employees who need leave because of a qualifying exigency due to the employee’s same sex spouse’s active duty military service; and
    • FMLA military caregiver leave if the employee is the same sex spouse of a covered service member.

    Employers should also ensure that supervisors, managers, and human resources officials are aware of this change in FMLA coverage.

    Employee Benefits Considerations

    Employee benefit plan rights and protections for employees’ spouses arise under both qualified retirement plans and welfare benefit plans, including group health care plans. Federal law, not Pennsylvania law, determines qualified retirement plan spousal status and rights. And federal law provides that a person’s status as a spouse is determined by the law of the state where he or she entered into the marriage (a state of celebration rule) and not by the law of the state where he or she resides. So the Whitewood decision has little effect on an employer’s qualified retirement plans. It just merely adds Pennsylvania to the list of jurisdictions where same sex marriages can be validly celebrated.

    However, status as a spouse who is eligible for coverage under a Pennsylvania employer’s welfare benefit plan remains largely a matter that the employer can control by means of the definition of “spouse” found in the plan’s documents. A Pennsylvania employer that, prior to the Whitewood decision, had a health care plan definition of spouse that operated to exclude an employee’s same sex spouse from plan coverage should now revisit that definition to ensure it continues to operate as intended. For example, if the definition in any way relies on or refers to the law of Pennsylvania as the basis for determining the lawfulness of an employee’s marriage, that definition will now likely no longer exclude an employee’s same sex spouse from health plan eligibility.