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The California Domestic Partner Rights and Responsibilities Act, a measure passed by the Legislature last year as AB 205, takes effect on Jan. 1. The legislation will extend to domestic partners most of the same rights, protections and benefits that are currently granted to married spouses. Some of the areas in the employment arena in which AB 205 will have the most significant impact are described in the following questions and answers. Who is a domestic partner? Only domestic partners who have registered with the state of California qualify under the new law. Under Family Code § § 297 and 298, a domestic partnership may be established by filing a Declaration of Domestic Partnership with the Secretary of State. The domestic partners must either be persons of the same sex or members of the opposite sex if at least one of the individuals is older than 62. To obtain registered domestic partner status, the partners must have a common residence, not be related by blood and not be married, among other requirements. Although many municipalities in California provide for domestic partnership registration, local registration alone is not sufficient to trigger the rights provided under AB 205. In addition, California law does not recognize domestic partnership registrations from outside of the state. Should domestic partners be treated like spouses for purposes of health benefits? The new law does not explicitly require employers to extend health benefits to domestic partners. In all likelihood, however, AB 205 will be held to mandate that if an employer extends health benefits to spouses of employees, it must also provide coverage for domestic partners. The reason is twofold. First, the law clearly states that registered domestic partners are entitled to the same benefits granted to spouses, whether those benefits derive from “statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law.” While there is no law requiring employers to extend health benefits to spouses, public employers that provide health benefits to employees invariably act under the auspices of a local ordinance, rule or regulation. These documents almost certainly qualify as “any other provisions or sources of law.” Second, the new law, in Family Code § § 297.5(a) and (f), provides that domestic partners have the same nondiscrimination rights as spouses. Under the state’s Fair Employment and Housing Act (FEHA), an employer may not discriminate on the basis of marital status. Therefore, if an employer were to extend health benefits to spouses but not domestic partners, the employer arguably would be making a distinction based on marital status. Given AB 205′s broad protection of domestic partners, an employer’s decision to extend coverage to spouses but not domestic partners may violate the law for this reason as well. In any case, under SB 2, which takes effect Jan. 1, 2006, employers with more than 200 employees will be required to provide health coverage to their employees and the domestic partners of those employees. The following year, employers with 20-199 employees will be obligated to meet the same conditions. That said, voters will have their say on Proposition 72, which appears on the November ballot and seeks to repeal SB 2. Should domestic partners be added to an employee’s health plan during the 2004 open enrollment period? There is some ambiguity as to when employers must allow domestic partners to be added to an employee’s health plan. On the one hand, employers under AB 205 likely have a duty to extend health benefits to domestic partners on Jan. 1, 2005, if those benefits are provided to spouses. It is reasonable, therefore, to conclude that a domestic partner should be added to an employee’s health plan during the current open enrollment period since the benefit will not take effect until the following calendar year. On the other hand, Gov. Arnold Schwarzenegger in September signed into law AB 2208, also known as the “California Insurance Equality Act.” This bill requires health insurers to provide equal coverage to spouses and registered domestic partners when the policy is “issued, amended, delivered or renewed in this state on or after Jan. 1, 2005.” According to the Legislature, the purpose of AB 2208 is to bring the law “in line with requirements made in … AB 205.” Nonetheless, domestic partners under AB 2208 could be excluded from health plans until those health plans are updated, which could be well after Jan. 1. We believe that the most prudent course of action for an employer to take is to allow registered domestic partners to be added to health insurance plans during the current open enrollment period. How does the new law affect an employee’s right to family and medical leave? Both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) permit eligible employees to take up to 12 weeks of leave to care for a parent, spouse or child with a serious health condition. AB 205 extends the right of an employee under the CFRA to take family and medical leave for the serious health condition of a domestic partner. It does not, however, extend that right under the FMLA. This difference between the two laws may have unintended consequences. An employee who takes leave to care for a domestic partner may be eligible for more family and medical leave than those with spouses. For example, if an employee took 12 weeks of leave to care for a domestic partner, that employee would have exhausted his or her leave under the CFRA. Since that leave would not apply to the FMLA, the employee would still be entitled to 12 more weeks of leave under federal law. Yet an employee who took 12 weeks of leave to care for a spouse would have exhausted all of his or her leave under both the FMLA and CFRA because they would have run concurrently. How does the new law interact with an employer’s COBRA responsibilities? AB 205 expressly states that the new statute “does not amend or modify federal laws or the benefits, protections and responsibilities provided by those laws.” (Family Code § 297.5(k)). When the Legislature passed AB 205, it explicitly stated that it did not expand an employer’s obligation to provide COBRA health coverage to domestic partners. Under the new law, however, there is some ambiguity. Clearly, a domestic partner will not be eligible for COBRA coverage under federal law unless he or she also qualifies as a dependent under Internal Revenue Code section 152. In that respect, there is no change to the status quo. Whether the domestic partner is entitled to Cal-COBRA benefits, however, is another matter. An employee may be entitled to Cal-COBRA coverage if he or she has exhausted federal COBRA coverage. Conceivably, this coverage could extend to domestic partners even if they do not meet the federal definition of “qualified beneficiaries,” which is limited to the employee and his or her spouse or child. Under Family Code § 297.5(e), to the extent that California law relies on federal law in a way that results in domestic partners being treated differently than spouses, registered domestic partners are to be treated by California law as if federal law recognized domestic partners in the same manner as California law. Therefore, when determining whether a domestic partner is eligible for Cal-COBRA coverage, federal COBRA must be read as if domestic partners were also qualified beneficiaries. Thus, while domestic partners would not be eligible for benefits under federal COBRA, they would be eligible for any extension of benefits under Cal-COBRA. Nonetheless, we suggest that employers discuss this issue with their carriers to ensure compliance under the terms of their individual policies. Do employers need to amend their employment policies? Under AB 205, FEHA will extend the protection against “marital status” discrimination to individuals based on their domestic partner status. (Government Code § 12940(a)(3)(A)). Employers will want to ensure that their policies prohibiting discrimination and harassment are updated to include domestic partners and to provide training to their employees with regard to this new development. Training is especially important given that domestic partnership is a hotly debated political issue and because employees who express their opinion on this subject need to be mindful that discrimination based on domestic partnership status is unlawful. Other policies will have to be updated as well. For example, employers will want to add domestic partners to any policies that reasonably regulate spouses when it comes to working in the same department, division or facility. Similarly, bereavement leave policies will need to be changed to ensure that domestic partners and spouses are treated equally. Employers may simply want to add a general policy stating that all references to spouses shall be read to include domestic partners as permitted by California law. Finally, employers should be aware that they may need to do more than merely update their policies. For example, public retirement plans must now provide survivor benefits for domestic partners that are equal to those provided for spouses. If a public employer’s plan does not already provide this benefit to domestic partners, the employer will need to take the necessary legal steps to amend the retirement plan accordingly. The impact of AB 205 on private retirement plans is not fully known. ERISA may pre-empt the apparent obligations of state law in this regard. Michael Blacher is an associate and Ruth Graf-Urasaki is of counsel in the Los Angeles office of Liebert Cassidy Whitmore. The firm advises and represents public agencies on employment matters and labor relations.

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