by: Robert M. Wexler
From: PORAC Law Enforcement News, October 2003
Association leaders should be aware of a little-known law that may extend benefits to your members that have same-sex domestic partners. AB 25 was passed by the Assembly and Senate in September 2001 and was signed into law by Gov. Gray Davis on Oct. 14, 2001. Although the statute impacted a variety of other laws, this article will focus solely on the issues that impact employees’ benefits.
In order to qualify for the benefits of AB 25, domestic partners must officially register as such with the secretary of state. The requirements to establish a domestic partnership are fully set forth in the California Family Code, Section 297, which provides that the following must be satisfied:
Both persons must share a common residence. Both persons must agree to be responsible for the others’ living expenses incurred during the domestic partnership. Neither person can be married or a member of another domestic partnership. Neither person can be related to the other, and both persons must be over age 18.
Both persons must be of same sex, OR of opposite sexes, provided that at least one of the opposite-sex partners is over age 62 and is eligible to collect Social Security benefits.
HEALTH INSURANCE COVERAGE: AB 25 provides that domestic partners may now qualify for health insurance coverage, provided the employer chooses to offer such insurance to its employees. The law mandates that health care providers must make available to employers the option of offering domestic partner insurance under the same conditions as they offer such benefits to eligible defendants.
However, the law designates that the employer, not the employee, determines whether to offer such benefits for domestic partners. A public safety employee organization that wishes to secure health insurance for domestic partners must negotiate for that benefit like any other. That said, an employer would be hard-pressed to publicly defend its steadfast refusal to extend health insurance to domestic partners.
SICK LEAVE: The new law amended the Labor Code to provide that any employer who provides sick leave benefits to employees must permit employees to use one-half of their annual accrual to attend to the illness of a domestic partner or a domestic partner’s child. All other conditions and restrictions that formerly applied to employees’ use of sick leave still apply, with this one noted exception.
CALPERS BENEFITS: Any domestic partner of an employee covered by CalPERS, or a child of such a domestic partner, is eligible for continued health insurance coverage IF the domestic partner is a recipient of a retirement allowance as surviving beneficiary of the deceased employee or annuitant. A surviving domestic partner, however, is not permitted to enroll additional family members in the health benefits plan after the death of the employee or annuitant.
PRE-TAX TREATMENT OF HEALTH INSURANCE PAYMENTS: AB 25 makes an employees’ payments for health insurance benefits of a domestic partner or the child of a domestic partner, as well as co-pays and deductibles, tax-free under state law.
GROUP DISABILITY INSURANCE: The law amended the Insurance Code to provide that group disability insurance providers must offer employers the option of offering such insurance to domestic partners of employees under the same conditions as they offer such benefits to eligible dependants.
As with medical insurance, the law designates that the employer, not the employee, determines whether to offer such benefits for domestic partners. A public safety employee organization that wishes to secure group disability insurance for its members’ domestic partners must negotiate for that benefit like any other.
For a fuller appreciation of the wide-ranging effects of AB 25, employee organizations are directed to the text of the legislation, which is available on the Internet, or to contact their association’s legal counsel.
ABOUT THE AUTHOR: Robert M. Wexler, is a partner in Santa Monica based Silver, Hadden & Silver, who have specialized in representing public safety labor organizations and their members for over 30 years. Wexler represents many PORAC associations in negotiations, and in a broad array of labor, disciplinary and criminal matters.
