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January 22, 2018

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Courts might decide if domestic partnership law extends to businesses

A domestic partnership law that goes into effect Oct. 1 has prompted businesses to review policies to avoid lawsuits that attorneys say are likely on both sides of the issue.

The Nevada secretary of state’s office kicked off registration Aug. 24 that runs through Monday. In the first week, 232 domestic partnerships were requested, spokeswoman Pam duPre said.

The law formally recognizes domestic partnerships as a binding social contract between two people as an alternative to marriage, said Tamara Jankovic, an attorney with Holland & Hart. She handles labor and employment law in addition to family law.

The law gives domestic partners, gay or straight, the same rights as those available to married couples, Jankovic said. They will be entitled to receive benefits such as hospital visitation, for example.

But one of the big questions, attorneys say, is whether employers will have to provide health care and other benefits for domestic partners. Many employers are seeking legal advice.

A growing number of Nevada companies already offer benefits for domestic partners, but those who won’t risk being sued under the new law, attorneys said.

The law doesn’t specifically require employers to provide health care benefits for domestic partners, but it appears the intent was to give domestic partners the same rights and protections married spouses get and eliminate discrimination, Jankovic said. That will be left to the courts to decide, she said.

“All we can do is discuss the pros and cons and flag some issues, and it’s up to the employer,” Jankovic said. “We have to give them a warning that we don’t know how the courts will interpret the law.”

There is a trend that companies provide coverage anyway, and it doesn’t appear to add a lot of costs to do so, Jankovic said. Some experts said it can even help companies in their recruiting efforts.

“The number of registrations for domestic partnerships is fairly low and not a great increase to provide the coverage,” Jankovic said. “And employers can look good in certain circumstances, depending on the type of industry.”

Howard Cole, a labor and employment attorney with Lewis and Roca, said the problem that will arise with the new domestic partnership law is the 2002 constitutional amendment banning same-sex marriage.

“There is some unresolved ambiguity with the 2002 constitutional amendment,” Cole said.

The tension over whether companies have to extend health care benefits to domestic partners of the same sex is likely to stoke both sides of the debate from the gay and lesbian community to groups that supported the 2002 amendment.

“I do expect legal action, and it should surprise no one,” Cole said. “It is a less of an employment question and goes to the fundamental issue of family values and fundamental religious beliefs of what constitutes marriage.

“The Legislature has spoken, and I suspect the courts will weigh in with their interpretation of the law. I believe there will be a lawsuit from the left and the right.”

Cole said he expects cases to be filed with the state labor commissioner regarding health benefits and that will lead to a hearing by the state Supreme Court.

How companies deal with the federal Family Medical Leave Act that allows employees to have up to 12 weeks of unpaid leave to care for a spouse is also likely to be the subject of legal action, Cole said. Such cases would ultimately be heard by the 9th U.S. Circuit Court of Appeals that leans left in its rulings.

“What I will explain to (companies) is the risks involved if an employer adheres to fundamental religious values and decides it will deny a (family) leave or same-sex partnership benefits. It comes with risk.”

Attorneys said any legal challenges may take time because companies allow changes in health care plans during an open enrollment period that may occur only once a year.

Those filling out paperwork seeking a domestic partnership don’t need the help of an attorney to do so, but people are encouraged to check with their accountants and lawyers on the financial and legal implications, duPre said.

Jankovic said one unknown is how domestic partnerships will be treated in court and whether couples hire family law attorneys similar to divorce proceedings.

“There is the question of how judges will treat these type of partnerships,” Jankovic said. “We don’t know that yet. Hopefully, it will not happen too quickly.”

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