Thursday, June 27, 2013

What About Pennsylvania Employees in Out-of-State Same-Sex Marriages?

Well, that didn't take long. Earlier today I drafted a blog entry regarding the limited impact of the Supreme Court's same-sex marriage decisions on employers in Pennsylvania. In fairness to me, I did offer it as a "first take" while reserving the right to amend after giving things more thought.

To that end, I think there's a "catch" to the Supreme Court's ruling. What about employees who are lawfully married in one state and work in another state? For example, Delaware will recognize same-sex marriages starting on July 1, 2013. A lot of people live in Delaware and work in Pennsylvania (Philadelphia in particular). What about them?

Jeff Nowak has a great post on FMLA leave after the DOMA decision. As he points out, the FMLA defines family members based on residence:
[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. 29 C.F.R. 825.102 (emphasis added).
So, what about those employees residing in Delaware but working in Pennsylvania? But what about all that states' rights talk in the Supreme Court decision? Will Pennsylvania employers be required to recognize out-of-state same-sex marriages under the FMLA? And what about s2 of DOMA (allowing states to disregard legal same-sex marriages from other states)?

I'm sure similar issues arise in other statutes covering spouses.

For now, what if a Pennsylvania employee requests FMLA leave to care for his/her same-sex spouse in a state that recognizes the marriage? My gut reaction is that you're better off granting the leave than winding up the first post-Windsor test case. But the bottom line is that there will be some issues to sort out.

Image: SCOTUS Seal. Not official Use.