New Legislation Extends Rights of Married Couples to Domestic Partners in California

Effective January 1, 2005, two new California laws extended the same rights and responsibilities of married couples to registered domestic partners. The new legislation will impact existing employer personnel policies such as bereavement leave, and statutes such as the California Family Rights Act, which will now provide time off to covered employees to care for a registered domestic partner or the child of a registered domestic partner, in addition to parents, spouses, and children. The legislation will also impact employers indirectly by requiring HMOs and health insurers to provide equal coverage in all policies to spouses and registered domestic partners.

Impact on Leave Policies
The first of the two statutes, the California Domestic Partner Rights and Responsibilities Act of 2003, grants registered domestic partners the same rights, benefits, duties, and responsibilities that spouses have under California law. The new law states, “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted and imposed upon spouses.”

Employers are advised to review their personnel policies to conform to the new legal requirements. For example, an employee handbook policy that extends bereavement leave to an employee for the death of a spouse must be modified to extend those benefits to cover the death of a registered domestic partner. Where the policy offers bereavement leave for the death of a spouse’s close family members, the policy must now be modified to provide the same benefit for the death of close family members of the registered domestic partner. Other handbook policies, such as leave to participate in a child’s school activities and sick leave, may also be impacted.

Similarly, employers with California Family Rights Act policies will be required to revise those policies to provide for employees taking leave to care for the serious health condition of a registered domestic partner or for the birth of a domestic partner’s child. Since the federal Family and Medical Leave Act is not impacted, employers with workforces in multiple states will face yet one more drafting challenge where California and federal law diverge. Like pregnancy, where state and federal law diverge, it is unlikely that an employee who exhausts his or her 12 weeks of unpaid California leave to care for a registered domestic partner will also have exhausted his or her federal FMLA leave.

The new legislation will also impact antidiscrimination laws. The law provides that “registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.” Thus it appears that the prohibition on marital status discrimination in the California Fair Employment and Housing Act (FEHA) will now prohibit discrimination based on registered domestic partner status. Presumably, this means that employers covered by FEHA could not refuse to hire an applicant, or otherwise discriminate against applicants or employees, because of their registered domestic partner status. Employers may wish to consider revising their EEO policies to address this issue.

Impact on Health, Life and Disability Insurance Benefits
Employer benefits policies will also be impacted by the new legislation. The second new statute, the California Insurance Equality Act, will require HMOs and other health insurers not just to offer policies providing coverage to registered domestic partners, but to provide equal coverage in policies to spouses and registered domestic partners. The requirements of the Act will also apply to life and disability insurance.

Employers Should Review and Revise Their Policies Now
California employers who have not already done so should revise their personnel policies and documentation to conform to the new legislation. There are currently more than a thousand California laws addressing rights and responsibilities of spouses that will be impacted by the new laws, including many employment laws. Policies potentially impacted include California Family Rights Act policies, bereavement policies, Family School Partnership Act policies, EEO policies, and sick leave policies, to name a few. Employers who have not done so should have their policies reviewed by competent employment law counsel.

Submitted by Douglas J. Farmer, Partner, Sheppard Mullin, San Francisco, Calif. You can contact Mr. Farmer at dfarmer@sheppardmullin.com.

Reprinted from Council’s Preventing Employment Law Problems in the California Workplace newsletter. To subscribe or order a free trial subscription, click here.

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