Our business employs over 50 people. We recently decided to extend health insurance benefits to all married employees, whether homosexual or heterosexual. Now that the California Supreme Court has nullified homosexual marriage, what are our options as an employer?


You have a few different options in this situation. You can continue to provide employment related benefits to all domestic partners, or limit eligibility for benefits to spouses or registered domestic partners. You should be aware that the California Domestic Partner Rights and Responsibilities Act of 2003 (AB 205) which is effective January 1, 2005, provides that “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 provision or sources of law, as are granted to and imposed upon spouses.” This broad language imposes an obligation on employers to provide the same “rights, protections, and benefits” to registered domestic partners as the employer extends to spouses. The Act further provides that “where necessary to implement the rights of domestic partners…gender specific terms referring to spouses shall be construed to include domestic partners.”

Under this new law, to the extent you provide benefits to spouses, you may have to extend the benefits to registered domestic partners. A domestic partnership is formed when a Declaration of Domestic Partnership is filed with the Secretary of State. Beginning January 1, 2005, a domestic partnership must meet all of the following requirements:

  • both persons have a common residence
  • both persons are at least age 18
  • the 2 persons are not related by blood in a way that would prevent them from being married to each other
  • neither person is married to someone else or a party to another domestic partnership
  • the persons are of the same sex, or one or both of the persons in an opposite-sex couple is at least age 62
  • both persons are capable of consenting to the domestic partnership.

Opposite-sex, unmarried couples cannot qualify for domestic partnership status unless one of the persons is at least age 62. According to California’s Secretary of State, approximately 27,453 couples have registered as domestic partners in California since 1999. These are the only individuals who are entitled to benefits under the Act. The impact on employment benefits is not specifically addressed in the legislation, but where state law or employer policy provides that benefits are extended to spouses, they must also be extended to registered domestic partners effective January 1, 2005.

Early analysis of the Act indicates it will not extend to federal employment benefit laws like the Family Medical Leave Act (“FMLA”). One potentially significant impact on employers is that an employee is who is eligible for FMLA and CFRA leave will now be able to take 12 weeks CFRA leave to care for a registered domestic partner plus 12 weeks FMLA leave for the employee’s own serious health condition or to care for an eligible family member. This effectively doubles an employee’s leave entitlement if the employee has a registered domestic partner because the word “spouse” in CFRA will now include a registered domestic partner.

Employers may wish to examine each benefit plan document to determine what benefits are provided to spouses. The benefits provided by the plan to spouses will have to be provided to registered domestic partners beginning January 1, 2005. In addition, certain benefits must be provided to spouses under the California Insurance Code, and effective January 1, 2005, these benefits will also have to be provided to registered domestic partners. These benefits include:

  • Outpatient prescription coverage
  • COBRA and Cal Cobra continuation
  • Equal coverage to employees, spouses, and registered domestic partners

Finally, employers should review their employment policies and contracts to determine what benefits are currently being provided to spouses, and what policies relate to a spouse (e.g. California Family Rights Act “CFRA,” kin care), and then evaluate and decide whether they will extend those benefits to all domestic partners, or just registered domestic partners.
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