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April 25, 2011

Supreme Court Refuses to Step in on Healthcare Reform . . . for Now

This morning, the Supreme Court denied the state of Virginia's request to hear a case on the constitutionality of the healthcare reform law. (You can read about this morning's decision, and find the briefs and order in the case, at scotusblog.) This isn't the end of the issue: Virginia asked the Supreme Court to allow it to jump the usual line of appellate review and go straight from the district (trial) court to the Supreme Court, without waiting for the federal Court of Appeals to hear the case and issue its own decision. In today's order, the Supreme Court declined to hear the case before the Court of Appeals had a chance to deal with it. After the Court of Appeals issues a judgment, however, either party could once again ask the Supreme Court to hear the case. 

There have been a handful of cases around the country challenging the constitutionality of various parts of the healthcare reform law, and these decisions conflict with each other. In the Virginia case, the district court found that the "minimum essential coverage provision" -- the individual mandate, which requires everyone to have health insurance by 2014 or pay a penalty -- was unconstitutional. The Obama administration argued that Congress had the right to enact this provision by virtue of the Commerce Clause, which gives Congress the right to regulate commerce among the states. Ultimately, the district court sided with Virginia on this claim, finding that Congress's right to regulate existing commerce did not confer the right to force people to engage in commerce (by requiring them to purchase health insurance). 

The federal Court of Appeal for the Fourth Circuit is scheduled to hear the Virginia case next month, and the other cases that have challenged the law across the country are also finding their way to other circuit courts. As these appeals are decided -- and we march inexorably toward the effective dates of the most controversial parts of the healthcare reform law -- the Supreme Court will undoubtedly be asked again to decide whether the law is constitutional. 

November 9, 2010

Final GINA Regulations Address Online Searches, Wellness Programs, and More

Today, the Equal Employment Opportunity Commission released final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.

The final regs largely adopt the interim regs published more than a year ago, but there are some important changes and additions as well. The new material deals mostly with the exceptions to the law: situations in which employers may acquire genetic information without violating GINA. Here are some of the more important changes and clarifications:

Online searches. Employers may obtain genetic information on an employee without breaking the law if the information is acquired inadvertently or through information that is publicly and commercially available (for example, from an article in a newspaper). The final regulations clarify that these exceptions don't apply if the employer acts deliberately, including by searching for genetic information online. For example, the inadvertent exception protects an employer if a manager is Facebook friends with an employee who posts personal genetic information. It doesn't protect an employer that conducts an Internet search that is likely to yield genetic information (such as a Google search for the employee's name and a genetic disease or disorder). Similarly, an employer that acquires genetic information from commercially and publicly available sources hasn't violated the law, but an employer that accesses these sources with the intent to gather genetic information (for example, by visiting sites about genetic testing) isn't protected by the exception.

Safe harbor for employers who give warnings. The final regulations note that an employer may receive genetic information even if it doesn't request it, particularly if the employer legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also receive genetic information. In these situations, an employer's acquisition of genetic information will be considered inadvertent -- and won't violate the law -- if the employer tells the employee or health care provider not to provide genetic information. The regulations provide sample language employers can use to give this notice, in writing or orally.

Incentives for wellness programs. An exception applies to employers who offer health or genetic services as part of a wellness program, as long as employee participation is knowing and voluntary (among other things). The final regulations address what "voluntary" participation means when an employer offers incentives to participate in the program (for example, a payment for completing a health risk assessment). In this circumstance, the employer will be covered by the exception if employees are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered.

Cleaning up personnel files. The final regulations provide that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, GINA's prohibitions on employer use and disclosure of genetic information applies to all such information, whether the employer acquired it before or after the law went into effect. As a practical matter, this means that employers should review personnel files, remove any genetic information contained in them, and create separate, confidential medical files for this information. (Most employers will already have confidential medical files to comply with the ADA, so this shouldn't pose much of a burden.) 

April 27, 2010

Health Care Reform for Employers and Employees

I put it off as long as I could, but I finally had to start doing some research on how the new health care reform bill, signed last month, will affect employers and employees. Many of the larger changes in the bill -- such as expanding Medicaid to cover more people, removing limits on coverage, creating health insurance exchanges where insurance can be purchased, and requiring people to either purchase insurance or pay a fine -- have been fairly well-publicized. There has been less coverage of how the law will affect employers and employees.

One set of changes determines the coverage and limits in health care plans. Although these changes will have to be made by the insurance companies themselves, employers will have to make sure the plan(s) they select meets the requirements -- and may have to pay a higher price for it. (Although existing group health plans can be "grandfathered," they still must incorporate some of these changes.) These changes include:

  • Adult children must be treated as eligible dependents until they reach the age of 26.
  • Health plans must not include lifetime or annual dollar limits on coverage.  
  • Exclusions for pre-existing conditions must be eliminated.
  • Out-of-pocket costs may not exceed a set maximum.

Another set of changes is specific to employment. For example:

  • Employers must report the cost of employer-sponsored coverage on each employee's W-2 form.
  • Small businesses (with up to 25 employees) will be eligible for a tax credit if they pay at least half of employees' health care premiums.
  • Group health plans may not discriminate in favor of highly compensated employees.
  • Employee deferral contributions to flexible spending accounts (FSAs) will be capped at $2,500, subject to inflation. Penalties for nonqualified distributions from these accounts will be increased, and deferred money may no longer be used to pay for over-the-counter drugs unless they are prescribed to the employee.
  • Employers must provide breast feeding breaks to nursing mothers during the year after the child is born, and must provide a private place (that isn't a bathroom) for this purpose.
  • Larger employers must automatically enroll employees in the company's group health plan; employees who don't want to participate must opt out.

Then there's that "play or pay" provision. The law doesn't require employers to offer health care coverage. However, it creates penalties for employers that don't provide coverage or that provide less generous benefits. Here's basically how it works:

  • Employers that have more than 50 employees and don't offer coverage must pay an annual fine of $2,000 per full-time employee (those working at least 30 hours a week). The first 30 employees are "free"; the fine begins with employee number 31.
  • Even employers that offer coverage may face a penalty if the employer doesn't pay for at least 60% of the actuarial value of the benefits the plan provides or the employee's cost for coverage is more than 9.5% of the employee's household income. In this situation, a full-time employee would be eligible to receive government-subsidized coverage -- and, if this happens, the employer would have to pay a penalty of $3,000 per full-time employee who receives the subsidy, up to a limit.
  • Employers must offer a voucher to employees who (1) earn less than 400% of the federal poverty line, (2) would have to pay more than 8% of their income for employer-provided coverage, and (3) choose to enroll in a plan from an exchange. The voucher requires the employer to pay what it would have paid to enroll the employee in its own plan.

Want to know more? Check out Nolo's article Health Care Reform: What Employers and Employees Need to Know.

February 6, 2010

President's Budget Plan Includes Extension of COBRA Subsidy

We've heard a lot in the past week about President Obama's proposed budget, unveiled in conjunction with his State of the Union speech last week. Topic number one seems to be how the budget plan would affect the national deficit. Apparently of quite a bit less interest, judging by the limited press it's received, is the proposal to extend the COBRA subsidy through 2010.

It's been reported that the budget proposal would make the subsidy available to those who are involuntarily terminated from March 1, 2010, through the end of the year. These folks would be eligible for up to 12 months of subsidized health care continuation (employees who are involuntarily terminated up until the end of February 2010 are eligible for 15 months of the subsidy, based on the first extension, passed by Congress this past December).

Are people taking advantage of the subsidy? The answer is a resounding yes, according to a survey reported in Business Insurance. Large employers reported that more than twice as many laid off employees have opted to continue their health insurance through COBRA since the subsidy first became available.

If the subsidy extension passes, some state legislatures may have to get on the ball in a hurry. A number of states offer "mini-COBRA" laws, which typically provide the right to continue health insurance to those working for smaller employers (COBRA covers only those with at least 20 employees). These laws differ widely in the details, including what counts as a qualifying event and how long continuation coverage can last. But most of them have this in common: As long as former employees meet the other requirements for the subsidy (for example, they were involuntarily terminated and meet certain income restrictions), they are eligible for the COBRA subsidy, even if they are receiving continuation coverage through a state law rather than through COBRA.

To allow employees to take advantage of the subsidy, a number of states amended their laws -- for example, to give employees who originally passed up continuation coverage a second chance to elect coverage once the subsidy was available. However, some states tied their amendments explictly to the original time frame for which the subsidy was available, and so might have to take legislative action to make sure employees of smaller employers are still eligible if the subsidy is extended.

It's interesting to me that, at a time when health care reform has been described as "on life support," unconscious," or in terms of some other unfortunate medical metaphor, the COBRA subsidy -- which is, after all, government-funded health insurance -- enjoys wide popularity, inside and outside of Congress.

UPDATE: After it was blocked temporarily by a Senator, Congress passed -- and the President signed -- a stopgap measure that extends the COBRA subsidy until the end of March 2010. (Congress is currently beginning work on comprehensive jobs legislation which will extend the subsidy to the end of this year.) The stopgap bill also clarifies that employees who initially lost their health insurance because of a reduction in hours are eligible to claim the subsidy if they subsequently lose their jobs. Read about it here.  

December 21, 2009

Congress Extends COBRA Subsidy

Over the weekend, the Senate passed a defense spending bill that included -- among many other things -- an extension of the COBRA premium subsidy provision that's about to expire. (You can find the entire bill at the website of the Library of Congress; search for the bill number, H.R. 3326, then skip ahead to Section 1010). The House already passed the bill, and it's been sent to the President for signing.

Currently, the COBRA subsidy allows those who are involuntarily terminated from September 1, 2008, through December 31, 2009 to receive a subsidy of 65% of their COBRA premium payments for up to nine months. The subsidy went into effect on March 1, 2009, which means that the first group of eligible folks -- those who had already lost their jobs and have been receiving the subsidy since the effective date of March 1 -- used up their nine months of subsidy coverage on November 30.

The extension would:

  • allow those who are involuntarily through February 28, 2010, to receive the COBRA subsidy, and
  • extend the subsidy period from nine months to a total of 15 months.

The extension to 15 months of subsidy eligibility also applies to those who have already used up their original nine months. For example, someone who was laid off and began receiving the COBRA subsidy on March 1, 2009, would have used up the nine months of subsidized coverage a few weeks ago. Now, that person will be eligible for an additional six months of subsidy payments. And, this coverage can be retroactive: That is, if an employee's subsidy ran out, and the employee didn't pay the full cost of COBRA coverage for December, the employee will have an opportunity to pay the lower amount to receive retroactive continuation coverage.  

October 27, 2009

FMLA Amendments in Defense Authorization Bill

It looks like the military family leave provisions of the FMLA are about to be amended. The National Defense Authorization Act of 2010, which is currently awaiting the President's signature, includes the Supporting Military Families Act. (You can find it at Section 565 of this massive piece of legislation, about 120 pages in.)

This provision would make four key amendments to the FMLA:

  1. Qualifying exigency leave would be available to family members of those in the regular Armed Forces as well as those in the National Guard or Reserves. This type of leave allows family members to take some time off to handle important matters (such as setting up temporary childcare, drafting a will, or making financial arrangements) relating to a child, spouse, or parent's impending call to active duty military service. If this bill passes, family members of career military personnel who are deployed would also have the right to take qualifying exigency leave.
  2. Qualifying exigency leave would be available to family members of all those deployed to a foreign country. In other words, the bill removes the requirement that a member of the National Guard or Reserves be serving "in support of a contingency operation." This would expand the number of employees eligible for this type of leave.
  3. Family members would be eligible to take caregiver leave to care for a veteran suffering a service-related serious illness or injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. This new provision is intended to allow leave to care for a family member with an injury that might not manifest right away, such as post-traumatic stress disorder. Currently, the FMLA allows military caregiver leave only for current service members.
  4. Military caregiver leave would be available when a family member has a preexisting serious illness or injury that is aggravated by active duty in the military. The law currently allows caregiver leave only for serious illnesses or injuries incurred while on active duty. It seems possible (to me) that this new provision could be interpreted to allow multiple 26-week periods of leave for the same injury -- first, when the service member is initially injured, and later if the service member returns to active duty and aggravates the injury. This scenario is something the current regulations explicitly disallow.
May 20, 2009

Healthy Families Act Would Require Paid Sick Leave

It's a good thing my employer offers paid sick leave. That meant I could stay home a few days ago with my summer cold. I was able to catch up on my sleep, and my office mate was able to not catch my cold. Many employees aren't so lucky: According to the Bureau of Labor Statistics, 39% of those who work for private employers don't get paid sick leave.

But that could be changing soon. Earlier this week, Rep. Rosa De Lauro (of Connecticut) reintroduced the Healthy Families Act, HR 2460. The bill would require some employers to offer paid sick leave. Sen. Ted Kennedy is expected to introduce a similar bill in the Senate this week, depending on the state of his own illness and how it affects his return to work. (To read the bill, search for "HR 2460" on the Library of Congress's THOMAS website.)

The bill would require employers with at least 15 employees to provide one hour of paid sick leave for every 30 hours an employee works, up to 56 hours per year. Employees could use the sick leave for their own illness, for preventive care, to care for a family member (defined broadly to include anyone related to the employee "by blood or affinity whose close association with the employee is the equivalent of a family relationship"), or to seek medical or legal assistance relating to domestic violence, sexual assault, or stalking.

This bill includes rights that already exist in a number of states and localities, although the federal bill knits together several types of state and local laws: paid sick leave laws, as are in effect in San Francisco and Washington, DC; so-called "small necessities" laws, which allow parents to take time off for their children's school-related activitites and often to take children to preventive care medical and dental visits; and domestic violence leave laws.

May 19, 2009

Supreme Court Finds No Pregnancy Discrimination in AT&T Pension Plan

Last year, the EEOC accepted more than 6,000 charges from employees alleging pregnancy discrimination. It's hard to believe, but there was a time -- just 30 years ago -- when it was considered perfectly fine for employers to treat pregnant women differently (read: worse) than everyone else. Despite the passage of Title VII in 1964, many employers continued policies that, for example, required women to stop working at a particular point in their pregnancy or provided paid time off for every conceivable reason except pregnancy and childbirth.

In a notorious 1976 case called General Electric Co. v. Gilbert, the Supreme Court upheld practices like these, finding that pregnancy discrimination was not gender discrimination because, even though only women can get pregnant, not all women do. In the Court's language, distinctions based on pregnancy don't divide the world into women and men, but into pregnant women and "nonpregnant persons." Because women are on both sides of the dividing line, the result can't be discriminatory.

Long hailed as an example of overly legalistic reasoning that misses the point -- and a reason why the Court needed at least one female member -- the Gilbert decision was quickly overturned by Congress in the Pregnancy Discrimination Act (PDA), which stated that pregnancy discrimination is a form of gender discrimination. This was too late to help many of the women who had been penalized at work in various ways for getting pregnant.  

At AT&T, for example, time women took off for pregnancy and childbirth was not fully counted as hours of service, used as the basis for calculating pensions and other benefits. While employees who took disability leave for other reasons received full credit for the entire period of their leave, employees who took pregnancy leave received a maximum credit of 30 days, later raised to six weeks. AT&T changed its policy once the PDA passed, but the women who had already been subjected to these policies continued to have their pensions calculated based on service to the company, which excluded some of their pregnancy leave.

The Supreme Court recently decided the pregnancy discrimination claims of a group of these women, in AT&T v. Hulteen. The Court found that it was legal for AT&T to continue calculating pensions on the basis of these pre-PDA policies. Even though these women continue to receive pension payments based on a discriminatory practice, the Court found in favor of AT&T, primarily because the practice was legal -- as evidenced by the Gilbert decision -- when it was in place, and the PDA was not retroactive. Justice Ginsberg dissented, arguing that AT&T's system continues the discriminatory effects of its former policy. Because the women are suffering discrimination today, in their pension checks, there is no issue of retroactivity.   

Interestingly, the AT&T decision was written by Justice Souter, whose impending retirement has led to much speculation over who -- and more generally, a person of which gender -- will be nominated to replace him. Put dissenting Justice Ginsberg in the camp of those who are hoping for another female Justice: In a recent interview with USA Today, Justice Ginsberg said that in the oral arguments in the AT&T case, some of her male colleagues revealed "a certain lack of understanding" about gender bias in the workplace. In the same interview, she called for some female company on the Court, saying "Women belong in all places where decisions are being made."    

To learn more about avoiding pregnancy discrimination, see Nolo's article Providing Pregnancy and Parental Leave.

June 19, 2008

Supreme Court Decides Two Age Discrimination Cases

court_front_med.jpgThe Supreme Court is busy these days, issuing its final decisions before beginning its summer recess at the end of this month. Today, the Court announced several employment law cases, including two age discrimination decisions. (The Court also invalidated a California law that prohibited employers who receive state funds from using that money to promote or discourage union organization; I'll write about that case, Chamber of Commerce v. Brown, in a future post). One of the age discrimination cases, Meacham v. Knolls Atomic Power Laboratory, involved a reduction in force at a government contractor that designs naval nuclear reactors. Managers were asked to score employees for performance, flexibility, and critical skills, and those scores were used to determine which employees lost their jobs. All but one of the 31 employees who were let go were at least 40 years old, and most of them sued for age discrimination. Among other things, the employees claimed that the scoring system had a disparate impact: Even though it didn't explicitly discriminate on the basis of age, the employees argued that it disproportionately screened out older workers. Knolls countered that its selection criteria for the RIF were "reasonable factors other than age" (RFOA), one of the exceptions to the Age Discrimination in Employment Act, and so were legal. The argument in this case was over which party -- employer or employee -- ultimately has to prove the RFOA. The Court found that the RFOA is an affirmative defense, which means that the burden is on the employer to prove that its criteria were reasonable. As the Court admits, this case will make it more difficult for employers to defend against disparate impact claims in ADEA lawsuits. In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, a rare combination of five Justices (Breyer, Roberts, Stevens, Souter, and Thomas) decided that Kentucky's retirement system for employees in hazardous positions (such as firefighters and law enforcement officers) didn't violate the ADEA. This decision is tough to parse, not least because the facts of the case are a bit complicated (and there's math). Here are those facts in a nutshell: Kentucky's system makes employees eligible to retire when (1) they have 20 years of service, or (2) they have five years of service and are at least 55 years old. Employees who suffer a disability are eligible for immediate retirement. If they haven't met one of the two criteria that usually apply, they are credited with enough additional years of service to qualify them for retirement, up to the number of years they have actually served. Retired employees were paid based on a formula that multiplies their years of service (whether actual or credited after a disability) by a factor of their annual pay when they retired. The EEOC sued, claiming that the system discriminated against older workers because it allowed younger employees to receive higher payments than older employees with the same length of service. Because employees who were at least 55 only needed five years of service to retire, some younger employees who became disabled had to be credited with more years of service to be eligible for retirement -- which translates into more money. For example, an employee who suffered a disability at the age of 35 after ten years of service would receive credit for an additional ten years of service; an employee who suffered a disability at the age of 50 after ten years of service would receive credit for only an additional five years of service; and an employee who suffered a disability at the age of 55 after ten years of service would be credited with no extra years. The Court decided in favor of Kentucky and upheld the system. The Court found that Kentucky wasn't motivated by age discrimination, but by a desire to allow those disabled on the job to receive compensation. Because the state's rules were based on pension eligibility rather than on age, the Court found that they should be upheld. The dissent seems to have the better side of the argument on this one. They point out that the state's pension calculations are explicitly based on age. The state may be able to justify its rules using the equal cost defense, which allows employers to reduce certain benefits to older workers as long as it spends an equal amount on benefits for older and younger workers. But to say, as the majority opinion here does, that the state's system is not age-based seems incorrect. And even if the state has good intentions, as appears to be the case, it doesn't have to disadvantage older workers to achieve its goal of compensating employees who suffer disabilities.

For a comprehensive guide to the ADEA and other federal laws prohibiting discrimination, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).

Lisa Guerin
June 10, 2008

Vacations Have Health Benefits

It turns out that taking time off work isn't just a luxury -- it improves our health, the quality and quantity of our sleep, and our reaction times. According to an article by Alina Tugend in the New York Times, "Vacations Are Good for You, Medically Speaking," a study has shown that women who took a vacation only once every six or more years were eight times more likely to develop coronary heart disease or have a heart attack than women who took at least two vacations a year. Another study showed that men who didn't take annual vacations had a 21% higher risk of death from all cases, and were 32% more likely to die of a heart attack. The article also cites interesting research on how vacations affect our sleep. After a few days on vacation, participants were averaging an hour more of good quality sleep, and registered an 80% improvement in their reaction times as measured by vigilance testing. The benefits continued, though less markedly, after vacationers returned home. The sleep survey involved vacationers who were flying from the West Coast of the United States to New Zealand for at least a week of vacation. But will more modest vacationing - occasioned by this year's flagging economy and high gas prices -- offer the same rewards? According to an AOL Travel/Zogby survey, more than half of the respondents felt that they had less money to spend on summer vacations this year than last year. Perhaps as a result, a third of respondents were planning to stay with family and friends rather than in a hotel. And, campgrounds around the country are reporting high numbers of reservations. It remains to be seen whether we'll get an extra hour of quality sleep on the ground or the hide-a-bed. Lisa Guerin