Domestic Partners - Expanded Employment Rights

As of July 26, 2009, Washington state employers will need to treat an employee’s registered domestic partner the same as a married employee’s spouse, to the extent such treatment would not conflict with federal law. Opposite-sex couples with at least one partner aged 62 or older and same-sex couples can register as domestic partners in Washington state if: both partners are at least 18 years of age; both partners share a common residence; neither partner is married or a state registered domestic partner with another individual; both are legally capable of consenting to the domestic partnership; and the individuals are not close blood relatives.

A number of state employment laws were amended by this new statute, Engrossed Second Substitute Senate Bill 5688. Some of the changes will be straightforward, such as:

• Washington Family Care Act (RCW 49.12.265): An employee will be able to use accrued paid leave to care for a registered domestic partner or the partner’s parent, if either has a serious health condition or an emergency condition.
• Payment of deceased employee’s wages (RCW 49.48.120): A surviving registered domestic partner will be entitled to be paid the final wages owed to a deceased employee to the same extent as would a surviving spouse.
• Assignment of wages (RCW 49.48.100): A registered domestic partner will need to consent in advance to an employee’s assignment of wages to a creditor, just as would an employee’s spouse.
• Domestic Violence Leave (RCW 49.76.020): An employee will be entitled to take leave to care for a family member who is a registered domestic partner to the same extent that a married employee could use such leave to assist a spouse or parent-in-law who is a victim of domestic violence.
• Military Family Leave (RCW 49.77.020): An employee may take up to 15 days of unpaid leave per deployment when a registered domestic partner has been notified of an impending call to active duty in a military conflict or is on leave from deployment.

Other changes may be less straightforward:

• Washington Family Leave Act (RCW 49.78.020): Employees will now have the right to take up to 12 work weeks of unpaid leave in a total 12-month period to care for a registered domestic partner with a serious health condition. However, when an employee takes leave to care for a registered domestic partner with a serious health condition under the WFLA, the employee will not be using his or her FMLA entitlement. Federal law still defines spouse as someone to whom the employee is either legally married or with whom the employee has a legal common law marriage. Therefore, unless the FMLA definition of spouse changes, an employee may not use FMLA leave to care for a seriously ill registered domestic partner. And remember, as these employees will not be using their FMLA leave when caring for a partner, assuming they continue to be FMLA-eligible, their FMLA entitlement will remain available to use in the event of their own serious health condition or other FMLA-qualifying absences.
• Group Health Insurance Coverage: Washington’s new law expressly states that it does not override federal law. Thus, if a group insurance program is regulated by ERISA and does not involve insurance contracts issued in Washington, the new statute would not require an employer to offer dependent coverage to an employee’s registered domestic partner, even if the employer offers such coverage to an employee’s spouse.

To Do?

Washington employers should monitor closely developments related to this new law. Voter initiatives aimed at overturning this law are threatened. However, if these activities are not successful, many personnel policies and practices will need to be revised to reflect the expanded rights given to employees with registered domestic partners. Employers who previously voluntarily extended their policies or certain benefits to “life partners” or “domestic partners” may also want to revisit whether to revise those policies to refer to and require proof of “registered domestic partner” status. The state maintains a publicly accessible data base of registered domestic partners. Employers may find it is easier to utilize this registry rather than require employees to complete of affidavits of domestic partnerships or similar personnel practices. See http://www.secstate.wa.gov/corps/domesticpartnerships/.

Want More Information?

Davis Wright Tremaine's employee benefits group will be issuing a separate advisory about the impact of this law on insurance contracts issued in Washington state, as well as other benefit-related issues.

Need Help?

Contact Mary Drobka (employment), Holly Wylam Klein (benefits) or your usual Davis Wright Tremaine employment or benefits lawyer.