U.S. District Judge John E. Jones III recently nullified the Commonwealth of Pennsylvania’s ban on same-sex marriages. Because Governor Tom Corbett announced that he will not appeal the decision in Whitewood v. Wolf, the ruling provides same-sex couples the right to marry in Pennsylvania and requires Pennsylvania to recognize same-sex marriages that have been validly performed elsewhere. 

Municipal employers should begin immediately analyzing their collective bargaining agreements, insurance documents, and retirement plan ordinances/documentation in light of the Whitewood decision. If a spouse’s entitlement to benefits is based on the Pennsylvania definition of marriage, a spouse will now include a same-sex spouse. 

As a result, benefits that were previously provided only to the opposite-sex spouse of an employee may need to be provided to an employee's same-sex spouse, such as:

• Health insurance and other insurance offered to current employees and their families
• Pension survivor benefits
• Killed in service benefits
• Post-retirement medical benefits
• Life insurance benefits

Employers that already provide health and welfare benefits to same-sex spouses should evaluate how those benefits are being taxed to employees. Employers that are not extending certain benefits under their retirement plans to same-sex spouses should be prepared to answer questions about those benefits (including questions about retroactivity).

In addition, the Family and Medical Leave Act (FMLA) defines "spouse" as a husband or wife under the laws of the employee’s state of residence. Prior to the Whitewood decision, a same-sex Pennsylvania couple who were legally married in another state would not be considered married for FMLA purposes. As a result of the Whitewood decision, same-sex Pennsylvania couples who are legally married in Pennsylvania or another state are considered married for FMLA purposes. This will require employers to update their employee handbooks and internal policies and procedures.

Pennsylvania public employers should begin to review all collective bargaining agreements, insurance and benefit contracts, employee benefit plan documents, summary plan descriptions, employee handbooks and other communications to ensure that benefits will be administered in compliance with applicable law, including the Whitewood decision. Ballard Spahr benefits and labor counsel can help with your review of these documents and the implementation of the Whitewood decision.