The U.S. Supreme Court's decision to declare parts of the Defense of Marriage Act (DOMA) unconstitutional has opened the door for lawfully married same-sex couples to take advantage of more than 1,100 federal benefits afforded heterosexual married couples.
But the DOMA decision has left many Pennsylvania businesses wondering how to react. The Commonwealth does not recognize same-sex marriages. Section 2 of DOMA, which allows a state to refuse to recognize same-sex marriages performed in other states, still stands as federal law.
Fortunately, a number of federal government agencies have recently released guidance about how the Court's decision will affect employee benefits.
The Internal Revenue Service (IRS) has adopted a "state of celebration" approach, meaning that for federal tax purposes, it considers any same-sex couple married in a state that allows same-sex marriage to be a legally married couple, no matter where they reside. The Employee Benefits Security Administration (EBSA) also has adopted the "state of celebration" rule in its instructions to employee benefit plan sponsors, fiduciaries and participants. Neither the IRS nor the EBSA rules apply to civil unions or domestic partnerships, regardless of whether the couple is same or opposite sex.
In contrast, the Department of Labor has announced that employee leave under the Family and Medical Leave Act (FMLA) applies to same-sex couples based on the "state of residence" rule, which states that employees can only exercise their right to take leave to care for same-sex spouses if they reside in a state that recognizes same-sex marriages.
Employers should make sure all of their documents and practices are consistent with the new rules. Keep in mind that many details about how the DOMA decision changes employee benefits administration are still unclear. Employers should continue to monitor new legal guidance as it is issued and consult legal counsel in any cases of uncertainty.
-- Jason Mettley, Meyer, Unkovic & Scott, firstname.lastname@example.org
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