This week, Pennsylvania became the 19th state to extend the right to marry to gay and lesbian couples when a federal judge struck down as unconstitutional a 1996 statute defining marriage as “[a] civil contract by which one man and one woman take each other for husband and wife.”  The same statute stated that a same-sex marriage entered into in a state recognizing such marriage “shall be void in this Commonwealth.”  Governor Tom Corbett’s announcement that he would not appeal the decision cements Pennsylvania’s new status and heralds a new era for Pennsylvania employers.  Here is what you need to know in light of this significant change in the law.

Perhaps the most prominent impact on employers is that same-sex spouses are now entitled to leave to care for each other under the Family and Medical Leave Act.  Before the May 20th decision, Pennsylvania employers were not required to grant employees who resided in Pennsylvania FMLA leave to care for a same-sex spouse with a serious health condition, even if the employee was legally married in another state.

The U.S. Department of Labor bases its interpretation of the word “spouse” for FMLA purposes on the law of the state in which the employee resides.  Because Pennsylvania did not recognize same-sex marriage, same-sex couples married elsewhere and residing in Pennsylvania were not entitled to leave under the FMLA’s provisions applicable to spouses.  Now that Pennsylvania’s ban on same-sex marriage has been struck down, such marriages are recognized under state law, and therefore same-sex spouses are covered by the FMLA.

Generally, this change will mean that more employees will be entitled to FMLA leave, but there may be instances in which employees will be entitled to less leave than was previously available to them.  Specifically, when spouses are employed by the same employer, they are limited to a combined 12 weeks of FMLA leave.  Therefore, before Pennsylvania recognized same-sex marriage, if same-sex spouses working for the same employer adopted a child, for example, they would each receive 12 weeks of FMLA leave.  Now, those same spouses will be entitled to 12 weeks of FMLA leave combined.

Pennsylvania employers should immediately do the following in light of the same-sex marriage ruling:

  • Review their FMLA policies and ensure that they do not contain language which would exclude same-sex couples.
  • Review their other policies (such as bereavement policies), to the extent that they are relevant to spouses, and ensure that they do not use language that would exclude same-sex spouses.
  • Train management personnel to ensure that they understand that same-sex couples are now covered by the FMLA in this Commonwealth.  Managers also should be cautioned not to require documentation of marital status from same-sex couples that is not required of opposite-sex couples, because such disparate treatment could engender discrimination claims under local ordinances prohibiting discrimination on the basis of sexual orientation.