What Types Of Laws Might Your State Adopt? California Offers Some Insights
Where California goes many other states often follow. That's why it's worth paying attention to the state's laws on expanding benefits to unmarried, domestic partners, which went into effect on Jan. 1, 2002 with AB 25.
Besides expanded employment rights, this legislation affects a domestic partner's right to make medical decisions, sue for wrongful death, maintain adoption rights, and rights of inheritance and conservatorship.
Extending benefits to domestic partners of unmarried employees, including gay and lesbian employees, is a concept first introduced in the 1980s. In 1982, the Village Voice, a New York City weekly, became the first employer to offer domestic partnership benefits to lesbian and gay employees.
As of August 2000, a total of 3,572 employers were offering or had announced they would offer health insurance coverage to domestic partners of their employees. Such employers include Coca-Cola, Ford Motor Co., General Motors Corp., and Daimler Chrysler.
Domestic Partner Registry
In 1999, Governor Gray Davis took the first step toward the current law when he signed AB 26, which allows health insurance benefits to be extended to unmarried partners of government employees.
The law also created a state domestic partner registry, which allows same-sex couples to register as domestic partners with the Secretary of State's Office. Retired state workers who register can obtain health coverage for their domestic partners, as can current state and local employees enrolled in the state's retirement system.
The only benefit granted to non-government employees under AB 26 was hospital visitation rights. Because domestic partners generally do not have hospital visitation rights, AB 26 provides that people who register will be entitled to visit their partners in the hospital.
The new legislation, AB 25, includes a number of workplace-related benefits, including:
* The right of domestic partners to use accrued and available sick leave to care for an ill domestic partner or the child of a domestic partner.
* The right of a domestic partner to collect unemployment insurance if s/he leaves a job to relocate with the other domestic partner.
* In the definition of good cause for leaving employment, the bill includes the act of accompanying a domestic partner to a place from which it is impractical to commute and to which a transfer by the employer is not available.
* The right of domestic partners to make disability benefit claims on behalf of a domestic partner who is mentally unable to make the claim, as a spouse may currently do.
* The right to receive continued health care coverage as a surviving beneficiary of a deceased government employee.
* The requirement that insurance companies with group health plans offer employers plans that allow domestic partner coverage to the same extent and on the same terms as coverage for other dependents.
Must File Declaration
To obtain these new benefits, domestic partners must file a Declaration of Domestic Partnership with the Secretary of State's Office. Under Family Code Section 297, as amended by AB 25, domestic partners are "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring."
The law applies to same-sex couples. However, heterosexual couples who are over 62 years old and meet certain requirements also may register. (This provision was added out of concern for older people who may avoid marriage for financial reasons.)
What Should Employers Do?
To comply with AB 25, employers should:
* Revise personnel policies to reflect changes in the law, including availability of sick leave to care for an ill domestic partner or the child of a domestic partner.
* Train managers/supervisors about the revised law.
* Ensure the process for registering domestic partners is kept confidential out of respect for those employees who do not wish to disclose their relationships. Many people in same-sex partnerships are reluctant to be identified by their employers as gay or lesbian, fearing discrimination or harassment.
* Continue to enforce non-discrimination policies covering sexual orientation.
Who Qualifies as a Domestic Partner?
A domestic partnership can be established in California by meeting all the following requirements:
* The existence of a common residence. This means both partners share the same residence. It is not necessary that the legal right to possess the residence be in both their names. One or both of the partners also may have additional residences.
If one partner leaves the common residence, but intends to return, it is still considered a common residence.
* An agreement to be jointly responsible for each other's basic living expenses. Basic living expenses means shelter, utilities and all other costs directly related to the maintenance of the common residence. Joint responsibility means each partner agrees to provide for the other partner's basic living expenses if the partner is unable to provide for himself or herself.
* Neither person is married or a member of another domestic partnership.
* The two persons are not related by blood in a way that would preclude marrying.
* Both persons are over 18.