• Domestic Partner Benefits Changes Under California Law
  • August 14, 2003 | Author: Constance M. Hiatt
  • Law Firm: Hanson Bridgett LLP - San Francisco Office
  • California adopted a statute in 2001 that makes minor changes to the landscape for individuals with same-sex domestic partners and certain opposite-sex domestic partners. This article focuses on the employee benefits aspects of the statute, although the statute made significant changes to the California Probate Code, permits actions for negligence or wrongful death of a domestic partner and other changes outside of the employee benefits arena.

    Registration Under State Law
    In order to qualify for the benefits of the new law, domestic partners must register under state law and must notify the state when a domestic partnership terminates. Opposite-sex partners may register if one or both partners are age 62 or older and eligible to collect social security benefits because of age, disability or blindness. Registration requires filing a form with the Secretary of State that attests to the partners' eligibility for registration. The domestic partners must live together, agree to be jointly responsible for basic living expenses, be unmarried nor in another domestic partnership, be unrelated, and be at least 18 years of age.

    Health Care Coverage
    The law does not drastically change the rules regarding the provision of health care benefits to domestic partners. Because most state laws regarding employee benefits are preempted by federal law (ERISA), the state is limited in mandating benefits for domestic partners. The new California law, however, requires that any insurance provider or service care provider, including HMOs and Blue Cross organizations, must offer domestic partner coverage to employers and associations. The law does not require that employers purchase such coverage but the providers must make the option available under the same terms and to the same extent such coverage is available for other dependents.

    State Tax Treatment of Health Benefits
    Health coverage provided to an employee's domestic partner and children of a domestic partner are now tax-free under state law. Although federal law remains unchanged, for state tax law, health coverage need not be imputed as income and an employee's payment for coverage for a domestic partner (and the children of a domestic partner) can now be made on a pre-tax basis under a cafeteria plan. This will require changes to payroll systems for employers who provide domestic partner health care coverage.

    CalPERS Continued Coverage
    AB25 provides that, for employees covered by the California Public Employees' Medical and Hospital Care Act (maintained by CalPERS), a domestic partner and a child of a domestic partner will be eligible for continued health care coverage upon the death of the employee or annuitant if the domestic partner is receiving a beneficiary allowance.

    Sick Leave
    The new law requires an employer to allow an employee to use sick leave to attend to an ill domestic partner or domestic partner's child. The law does not require any leave but to the extent sick leave is available, at least six months of an employee's sick leave accrual must be available for these purposes. This requirement does not apply to short-term disability plans governed by ERISA.

    Unemployment Benefits
    AB25 changes the rules for access to unemployment benefits. Under AB25, if an employee must leave a job because of a domestic partner's job relocation, such employee will be eligible for state unemployment benefits.