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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics, Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, and Mark Busto, Attorney, Sebris Busto James, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*
Registered Domestic Partnerships: What Employers Need to Know
August 2009
By Sofia D'Almeida Mabee, Employment Attorney
Summit Law Group, PLLC
Overview
On May 18, 2009, Governor Gregoire signed a bill expanding the rights of state registered domestic partners. The bill reflects the Legislature's intent that registered domestic partners be treated the same as married couples for all purposes under state law. Most of the amendments will not have a direct impact on employers, however, one area that will be immediately and directly impacted is leave entitlement.
Registration
A precondition to benefiting from the new law is that domestic partners register with the Secretary of State. To register, both partners must be at least 18 years old; share a common residence; not be married to or in a registered domestic partnership with anyone else; be capable of consenting; not be nearer kin than second cousin; not be a sibling, grandchild, aunt, uncle, niece, or nephew to the other partner; and be either (1) of the same sex or (2) at least one partner is at least 62 years old. Currently, domestic partners can terminate their registration under certain conditions by filing a notice with the Secretary of State. However, the new law repeals this option and requires domestic partners to file a dissolution petition in court.
The Secretary of State maintains a searchable database of registered domestic partnerships.
Change to Leave Entitlements
The bill signed by the Governor only amends state law. Therefore, it does not affect federal laws such as the Family Medical Leave Act (FMLA). The following are several Washington State leave entitlements affected by the bill:
Washington Family Leave Act, RCW 49.78
The Washington Family Leave Act (FLA) is Washington State's corollary to the federal Family Medical Leave Act (FMLA). The FLA entitles employees to up to 12 weeks of leave in the event of a serious health condition by the employee or a family member (defined as a "child, parent, or spouse" of an employee.) At this time, leave taken under the FLA runs concurrently with leave taken under the FMLA, except for post-pregnancy disability bonding. Therefore, the FLA does not significantly impact most employers since an employee would already be eligible for FMLA leave. However, the new registered domestic partnership law changes that in certain circumstances.
Consistent with its purpose, the bill amends the FLA to grant employees the right to take up to 12 weeks of leave to care for a state registered domestic partner to the same extent as a spouse. However, since leave taken to care for a state registered domestic partner would qualify towards 12 weeks of FLA leave but would not qualify towards 12 weeks of FMLA leave, it could be possible for an employee to take 12 weeks of leave to care for a domestic partner under the FLA and then take another 12 weeks for a FMLA-qualifying reason. Unlike the FMLA, however, the FLA does not require that employers continue providing employer-paid health insurance. Therefore, an employer would not necessarily be required to provide employer-paid health insurance during a period of leave covered by the FLA but not the FMLA.
Washington Family Care Act, RCW 49.12
Under the Washington Family Care Act, employers must allow employees to take accrued paid leave to care for sick family members. At present, family members include spouses and parents-in-law. The new law expands the definition to include registered domestic partners and, presumably, parents of registered domestic partners.
Washington Military Family Leave, RCW 49.77
Pursuant to a recently-enacted statute, Washington State now entitles employees who have a spouse in the military up to 15 days of (unpaid) leave in connection with the spouse's call to active duty, deployment, or leave from deployment. The new bill ensures that registered domestic partners enjoy the same benefit.
Washington Domestic Violence Leave, RCW 49.76
Pursuant to another recently-enacted statute, an employee who is (or has a family member who is) a victim of domestic violence, sexual assault, or stalking is entitled to take leave from work under certain circumstances. The bill extends the protections of this new law to domestic partners to the same extent as married spouses.
Washington Family Leave Insurance, RCW 49.86
This state law requires establishment of a system to fund paid leave for individuals taking time off in certain circumstances. It was set to take effect on October 1, 2009, however, the Governor recently delayed implementation three years. Once the program takes effect, its benefits will be available for registered domestic partners to the same extent as spouses.
Health Insurance
The registered domestic partnership bill does not directly address employer-provided health insurance for domestic partners, and the Secretary of State's website indicates that the new bill does not require it. However, given that the new law contains a declaration of the Legislature's intent that any "privilege, immunity, right, benefit, or responsibility granted or imposed by statute, administrative or court rule, policy, common law or any other law" to married couples be granted on equivalent terms to registered domestic partners, the new law could invite legal challenges in this area.
In the event an employer decides to offer health insurance to domestic partners, the employer should keep in mind federal income tax consequences. In particular, many domestic partners do not qualify as dependents under the Internal Revenue Code. In such situations, the fair market value of the employer's health insurance premium contribution for the domestic partner is considered taxable income to the employee, and must be addressed in the employer's tax withholding and reporting.
Effective Date
Most of the new law was scheduled to take effect on July 26, 2009. Certain portions of the bill are not scheduled to take effect until 2014: those portions primarily relate to public employee pensions (e.g., the judicial retirement system, teacher pensions, LEOFF, PERS); provisions relating to the state's Basic Health Plan and public assistance; and portions dealing with the estate tax. A proposed ballot measure to repeal the law, Referendum 71, was submitted to the Secretary of State on July 25, 2009. The Secretary of State is now in the process of verifying whether enough valid signatures were submitted. The law remains on hold pending the conclusion of that process. If enough valid signatures were submitted to put Referendum 71 on the ballot, the law will not go into effect until after the election is certified in December 2009.
| Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More. |  |
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Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
More.
Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More. |
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| Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More. |  |
| Mark Busto, Attorney with Sebris Busto James, Bellevue, is a seasoned employment law counselor and litigator with a strong professional background in labor-management relations. He has represented employers in discrimination cases before judges and juries in both state and federal court and has arbitrated many labor and employment matters. More. |  |
*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.