On May 20, 2014, Pennsylvania became the 19th state to strike down laws that banned same-sex marriage in the case of Whitewood v. Wolf.
Governor Corbett announced he has no plans to appeal the decision entered by Judge John E. Jones, III; however, the Commonwealth defendants officially have thirty (30) days to appeal the ruling. Meanwhile, as the time to appeal winds down, employers should review their current employee benefits policies and make sure they are in line with this historical decision.
Prior to Judge Jones’ ruling in Whitewood, the marriage laws of Pennsylvania not only prevented same-sex couples from marrying in Pennsylvania, but also refused to recognize same-sex marriages validly performed in other states. As a result of yesterday’s decision, however, same-sex couples previously unmarried may now legally marry in Pennsylvania. Likewise, the marriages of same-sex couples married in other jurisdictions will now be recognized as valid in Pennsylvania.
This decision influences many different areas of Pennsylvania law including family law, estate planning, and property law. Undoubtedly, many aspects of employment law and employee benefits administration are also impacted if this decision is not appealed:
FMLA
Under the Family Medical Leave Act (FMLA), employers must allow employees to take unpaid leave in order to take care of certain relatives, such as spouses. Although FMLA is a federal employment law, it refers to state law for the definition of “spouse”; therefore, as we pointed out to clients previously, Pennsylvania employers did not have to provide FMLA benefits to same-sex spouses who resided in Pennsylvania, but may have had to provide benefits to same-sex spouses when the employee (who worked in Pennsylvania) and the same-sex spouse resided out of state in a jurisdiction that recognized same-sex marriage. Pursuant to Whitewood, Pennsylvania employers would have to allow all employees to take leave to care for family members with a serious medical condition, including same-sex spouses residing in Pennsylvania.
Income Tax
As we previously predicted, same-sex couples who reside in Pennsylvania now must be treated the same as opposite-sex married couples for Pennsylvania and local tax purposes. Previously, employers in Pennsylvania struggled with the issue of “imputed income” for same-sex partners; however, under the Whitewood decision, a same-sex partner who has either been married in Pennsylvania or under the laws of another jurisdiction would no longer be subject to such “imputed income.”
ERISA
Recently the Employee Benefits Security Administration (EBSA) provided guidance on the impact of the U.S. v.Windsor decision on ERISA benefits. EBSA determined that the term “spouse” refers to any individuals who are lawfully married under any state law. Thus, same-sex spouses in Pennsylvania were included in an employer’s ERISA-qualified plan by virtue of the Windsor decision, and this new Whitewood decision does nothing to change this.
The practical effects of this important decision will be unfolding for some time. For example, after the Windsor ruling, the IRS issued a determination that the date of the court decision was the effective date for tax implications. It seems likely that the Pennsylvania Department of Revenue will issue a similar determination that May 20, 2014, the date of the Whitewood decision, serves as the dividing line for the treatment of same-sex spouses in Pennsylvania.
However, as we wait for the everyday implications of this decision to emerge, we suggest that employers begin to review their employee benefits policies and plans to ensure compliance with Whitewood.
The attorneys of KingSpry will continue to monitor the case and are always available to answer questions on this notable decision as it further develops.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
