Washington Labor Law Blog: Insights on the Law for Washington Employers

Referendum 71 Expands Employees’ Rights

With the passage of Referendum 71, state registered domestic partners will be treated under state statutes the same as married spouses.  Although the change will impact employers in several ways, one of the most significant changes will be the expansion of leave rights under the state Family Leave Act (“FLA”), which applies to employers with at least 50 employees.

With a few exceptions, the language of the FLA tracks that of the federal Family and Medical Leave Act (“FMLA”).  Both statutes apply only to employers with at least fifty employees.  Both statutes provide eligible employees up to 12 weeks of unpaid leave, during which time an employee’s job is protected.  Until now, probably the most significant difference for employees between the FLA and FMLA is how pregnancy leave is treated.  Under the FLA, leave resulting from sickness or disability because of pregnancy or disability does not count against the employee’s 12-week leave entitlement.  Thus, for employers who have at least 50 employees, an employee in Washington can take up to 12 weeks to care for a newborn child in addition to any pregnancy disability leave.  Under the FMLA, an employee would only receive 12 weeks including any pregnancy disability leave.

The passage of Referendum 71 creates important new differences between the two statutes.  Under the FMLA and the FLA, eligible employees have been entitled to leave to care for spouses who have a serious health condition but not for domestic partners.  Now, under the FLA, eligible employees will be entitled to leave to care for a state registered domestic partner.

Another change is that domestic partners will probably be able to take 12 more weeks of protected leave than married employees.  The reason is that the FLA domestic partnership leave does not count against the FMLA leave entitlement.  Thus, after taking state FLA domestic partner leave, the employee would still have 12 weeks of FMLA leave available to care his or her own serious health condition or other qualifying FMLA leave.  In contrast, an employee taking state FLA leave to care for a spouse would be concurrently exhausting his or her leave entitlement under the FMLA.

Also, note that RCW 26.60.030 defines domestic partnerships to include not only persons of the same sex, but persons of different sexes when at least one of the partners is 62-years-old or older.

Bills referred to voters take effect 30 days after election.  With the passage of Referendum 71, the expanded rights for state-registered domestic partners will go into effect December 3, 2009.

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