The Nevada Domestic Partnership Act, Senate Bill No. 283, provides domestic partners with many of the same rights as spouses. The new law takes effect on October 1, 2009, and has direct implications for Nevada employers.
Rights of Domestic Partners
Under the new law, a domestic partnership is a legally recognized “social contract” between two persons. Although the law is viewed as an alternative to marriage, requiring, among other eligibility conditions, that the couple maintain a common residence and share an intimate relationship, the law does not reserve domestic partnerships exclusively for same-sex couples. Rather, it appears that both same-sex and opposite-sex couples are eligible to avail themselves of the new law.
The law provides that, subject to a few exceptions, domestic partners have “the same rights, protections, and benefits” as spouses. This includes the right to be free from discriminatory treatment.
The nondiscrimination provision of the new law requires employers to treat domestic partners in the same manner as spouses. It does, however, provide a key exception with regard to healthcare benefits. The new law explicitly states that it does not require employers to offer health care benefits to domestic partners. This appears to be inconsistent with the overall purpose of the legislation, which is to put spouses and domestic partners on equal footing under the law, but currently stands as an employer-friendly carve-out to the nondiscrimination provision.
The current trend is for employers to provide benefits for domestic partners as well as spouses. This practice is consistent with the new law, which provides that although employers are not required to provide coverage to domestic partners, they remain free to voluntarily provide health care benefits for domestic partners if they so choose.
The new law leaves many questions, such as the following, unanswered: Do employers have to provide other benefits to domestic partners? Do employees receive leave under FMLA for the care of a domestic partner, as is provided for a spouse?
In addition, the constitutionality of this new law has yet to be determined. In 2002, Nevada voters passed a constitutional amendment defining marriage as between only a man and a woman. The new law explicitly provides that a domestic partnership is not a marriage, but at the same time provides domestic partners with the same rights and responsibilities conferred by marriage.
Given the ambiguity concerning the constitutional amendment banning same-sex marriages, as well as a host of unresolved questions concerning employer obligations under the law, we expect legal challenges to follow. We will have to wait for the courts and/or the next legislative session to address these conflicting issues before more answers can be provided.
To ensure compliance with this new law, employers should revisit and, if necessary, revise their policies and practices to ensure they do not engage in discriminatory practices.
In addition, in light of other recent regulatory changes (such as the recent amendments to the ADA, new FMLA regulations, and the ARRA modifications to COBRA), as well as ongoing changes from Washington with regards to healthcare and labor, it is a good time to contact us to ensure that you stay in compliance with all recent changes impacting employers.
This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.
View the entire client alert in PDF format here.