Last week, the Supreme Court of the United States struck down as unconstitutional a key provision of the Defense of Marriage Act (DOMA) that defined “marriage” for purposes of over 1,100 federal laws as a legal union between a man and a woman. With the Court’s decision, same-sex couples that are legally married under state law are now entitled to the same treatment under federal law as opposite-sex married couples. Chief among the benefits now available to same-sex married couples are equal treatment under the country’s immigration and tax laws and equal rights to participate in its federal health and welfare programs. The Court’s decision striking down DOMA also will have a significant impact on the rights of same-sex married couples under various federal laws relating to employment, extending to same-sex married couples in certain states rights to (1) family leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse, (2) favorable tax treatment for spousal health benefits and expense reimbursements, (3) continuation healthcare coverage under COBRA, (4) and spousal rights under retirement plans.
It is important to note, however, that the Court’s decision does not legalize same-sex marriage, address whether same-sex couples have a constitutional right to marry, or consider the constitutionality of a state law banning same-sex marriage. Moreover, the provision of DOMA permitting states to refuse to recognize same-sex marriages performed under the laws of other states was not affected by the Court’s ruling. Accordingly, while the Supreme Court’s decision will have a significant impact on employers in states that recognize same-sex marriage, only 13 states and the District of Columbia presently do. Of the remaining states, 35 have either statutory or constitutional bans on same-sex marriage. Pennsylvania is one such state. The question for Pennsylvania employers, then, is: How does the Supreme Court’s decision affect us?
Pennsylvania does not recognize same-sex marriages (or, for that matter, civil unions or domestic partnerships). By statute, Pennsylvania defines marriage as between “one man and one woman” and does not recognize same-sex marriages lawfully entered in other states. On a number of occasions in the past few years, lawmakers in Harrisburg have introduced bills that attempt to extend marriage to same-sex couples. None of these bills have gotten out of committee. Attempts to amend the state constitution to ban same-sex marriage have similarly failed.
Because the Supreme Court’s decision does not affect Pennsylvania’s ban on same-sex marriage, the decision has a very limited impact, if any, on Pennsylvania employers. Notably, Pennsylvania employers are not required to redefine eligibility under health insurance plans or retirement plans to extend coverage or benefits to an employee’s same-sex spouse. That being said, private employers may voluntarily extend employment benefits to same-sex married couples. The IRS is in the process of reviewing the Supreme Court’s decision on DOMA and will be issuing guidance on how such benefits will be treated for federal income tax purposes, including whether same-sex married couples will be permitted to reap the federal tax advantages long enjoyed by opposite-sex couples under employee benefit programs.
Another common question faced by Pennsylvania employers is whether the Supreme Court’s decision will affect their administration of FMLA leave. The answer is: Perhaps, but only under very nuanced circumstances. As to most employees, the administration of the FMLA by Pennsylvania employers will be unaffected. There is, however, significant uncertainty with respect to the rights of an employee who works in a state that does not recognize same-sex marriage (like Pennsylvania) but who lives in a state that does recognize same-sex marriage. Under the FMLA, eligible employees are entitled to 12 weeks of leave to, among other things, care for a family member with a serious health condition. For purposes of the FMLA, “family member” includes an employee’s spouse, which is defined by regulation as:
“a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”
The regulations indicate, therefore, that the law of the place of the employee’s residence determines whether or not someone is a husband or wife for purposes of the FMLA.
To that end, it appears that an employee who works in Pennsylvania but lives in a state that recognizes same-sex marriage—such as New York, Delaware, or the District of Columbia—would be eligible for FMLA leave to care for a same-sex spouse because the law of the state of residence is controlling. The answer, though, is not completely clear, especially in light of the surviving language in DOMA and the Pennsylvania statute that permits states to refuse to recognize same-sex marriages performed elsewhere. At this point, all we can hope is that the Department of Labor will follow the lead of the IRS and issue guidance on this issue.
The Supreme Court’s landmark decision may have additional implications for employers as government regulators work to define its scope and sort out its impact. Stay tuned for further articles on this blog regarding developments in this area of the law.