Health Employment And Labor

labor and employment law for the healthcare industry

How Big Is Halbig? The Viability of the ACA’s Employer Mandate Hangs in the Balance

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By: Adam C. Solander, Kara M. Maciel, Mark M. Trapp, and Stuart M. Gerson

Yesterday, the U.S. Court of Appeals for the District of Columbia and the U.S. Court of Appeals for the Fourth Circuit sent shockwaves through the country when they issued conflicting opinions on a key aspect of the ACA.  The cases are Halbig v. Burwell, D.C. Cir., No. 14-508 and King v. Burwell, 4th Cir., No. 14-1158.  The question at issue in both cases was whether the IRS has the authority to administer subsidies in federally facilitated exchanges when the statute itself specifically authorizes subsides only in state exchanges.

According to the statutory text of the ACA, the penalties under the employer mandate are triggered only if an employee receives a subsidy to purchase coverage “through an Exchange established by the State under section 1311” of the ACA.  If a state elected not to establish an exchange or was unable to establish an operational exchange by January 1, 2014, the Secretary of HHS was required to establish a federal exchange under section 1321 of the ACA.

In 2012, the IRS promulgated regulations making subsidies available in both federally facilitated exchanges and state-run exchanges.  In those regulations, the IRS asserted that “the statutory language … and other provisions” of the ACA “support the interpretation” that credits are available to taxpayers who obtain coverage through both state and federally facilitated exchanges.

The individuals who brought the suits live in states that did not establish their own exchanges. They argue that the text of the ACA is clear and unambiguous: the IRS does not have the authority to administer subsidies in their states because the exchanges were not “established by the State.”

The D.C. Circuit, in a 2-1 decision, in Halbig v. Burwell agreed with the appellants and vacated the IRS regulation.  The court focused heavily on the plain meaning of the statutory text and concluded “that the ACA unambiguously restricts the … subsidy to insurance purchased on Exchanges established by the state.”  In an opinion issued only hours later, the 4th Circuit, in a 3-0 decision, in King v. Burwell agreed with the IRS that the statutory language was not plain, but ambiguous. Accordingly, the court upheld the subsidies “as a permissive exercise of the agency’s discretion.”

Given the circuit court split, many commenters believe that Supreme Court review is necessary to resolve this issue.  However, while it is certainly possible, perhaps even likely, that the Supreme Court will review this issue, it may not be a foregone conclusion.  The Obama administration has already indicated it will seek en banc review of the Halbig decision by the entire D.C. Circuit.  If the full D.C. Circuit reverses the Halbig panel decision, the existing “circuit split” would be resolved, potentially making Supreme Court review less likely.  It should be noted that there are similar cases pending in district courts in the 10th and 7th Circuits, that if decided in favor of the challengers could create a circuit split even if the full D.C. Circuit reverses Halbig.

On the other hand, given the tremendous importance of this issue to the operation of the ACA, and the fact that under the plain meaning of the statute, the IRS regulation allows billions of dollars in tax credits without the authorization of Congress, the Supreme Court may accept review to fully settle this important question of federal law, regardless of whether there are conflicting decisions from the circuit courts. The Supreme Court has long operated under the “rule of four,” a convention under which a grant of certiorari requires the approval of only four justices. Given the fact that the availability of the subsidies is an issue of national importance, and that two years ago four justices voted to strike down the ACA altogether, Supreme Court review of this issue appears likely. Ultimately, however, whether the Supreme Court will accept the case is a matter of speculation.

For employers, the most significant issue may be the potential impact the Halbig ruling could have on the Employer Mandate.  As noted above, the employer mandate penalties are only triggered by an employee going to the exchanges and purchasing subsidized health care.  Accordingly, if none of its employees receives a subsidy, then no penalties would be triggered against an employer.  Thus, for employers with employees in the 36 states with a federally facilitated exchange, the question arises how the Halbig decision impacts their decision and strategy to provide health coverage to their employees when the Employer Mandate takes effect in 2015 (or 2016 for employers with 50-99 employees).

Additionally, considering that the Employer Mandate and its penalty provisions have been extended twice before, this legal development could provide employers and trade associations with an opportunity to ask the Obama Administration to delay the Employer Mandate again until the Supreme Court has a chance to review the case, or even to scrap it altogether.

While more questions may be raised by the two conflicting court decisions, what is clear at this point is that yesterday’s decisions are certainly not the final word on this issue.

ADAM C. SOLANDER is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

KARA M. MACIEL is a Member of the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green.

MARK M. TRAPP is a Member of the Firm in the Labor and Employment practice, in the Chicago office of Epstein Becker Green.

STUART M. GERSON is a Member of the Firm in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

 

Five Labor and Employment Issues Faced by Health Care Employers

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Our Epstein Becker Green colleagues have released a new Take 5 newsletter: “Five Labor and Employment Issues Faced by Health Care Employers,” by Michael F. McGahan, D. Martin Stanberry, and Daniel J. Green.  Below is an excerpt:

As the Affordable Care Act and the challenges of reimbursement and funding for health care services drive changes in the health care delivery system and employment in the industry, new issues in labor and employment law are arising.   This month’s Take 5 addresses five of these new and important issues…

  1. NLRB’s Proposed Changes to Its Union Election Rules and Approval of Micro-Bargaining Units Increase Health Care Facilities’ Risk of Union Organizing
  2. Concerns Arise as Physicians Become Employees
  3. Physicians in Unions? Not as Implausible as You May Think
  4. Growing Medical Practices Should Be Mindful That the Next Employee They Hire May Be the One Who Subjects Them to Federal Laws
  5. NLRB Continues Its Efforts to Regulate Employers’ Policies Concerning Communications in the Workplace

Read the full newsletter here.

OSHA and NLRB Agreement Opens New Door To Whistleblower Claims

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On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.

 

Stuart Gerson on the Supreme Court’s Harris and Hobby Lobby Decisions

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Our colleague Stuart Gerson of Epstein Becker Green has a new post on the Supreme Court’s recent decisions: “Divided Supreme Court Issues Decisions on Harris and Hobby Lobby.”

Following is an excerpt:

As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.

In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. …

An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly. …

Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides. In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.

Read the full post here.

All NLRB Decisions and Actions From August 27, 2011 Through July 17, 2013 Are Invalid or in Doubt

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By: Adam C. Abrahms, Kara M. Maciel, Steven M. Swirsky, and Mark M. Trapp

The U.S. Supreme Court today held that the US Senate was not in recess on January 4, 2012, when President Obama made three “recess” appointments to the National Labor Relations Board under the Constitution’s Recess Appointment Clause.  In simple terms that means that the recess appointments were not proper and decisions in which the recess appointees participated were not valid.

What this now means is that hundreds of cases decided by the NLRB following the January 4, 2012 recess appointments to the Board from January 4, 2012 until the Senate confirmed the current Board members who joined the NLRB as of August 12, 2013, were unconstitutionally decided because the Board lacked a quorum and could not decide cases or issue orders.  Additionally, while Noel Canning concerned the January 2012 recess appointments, there is also doubt as to earlier decisions in which previous recess appointees participated going back to August 2011.

The Court’s decision upheld the January 2013 decision of the US Court of Appeals for the District of Columbia Circuit which found that the panel of the NLRB that had previously decided an unfair labor practice case against Noel Canning, a Pepsi bottler, was unconstitutionally constituted and therefore the decision was invalid.  There the DC Circuit held that because the Senate, whose advice and consent is required for appointments to the NLRB had not been in recess when the President made his appointments, the company’s “understanding of the constitutional provision is correct, and the Board’s is wrong. The Board had no quorum, and its order is void.”  The Court of Appeals for the Third Circuit had also reached a similar conclusion concerning the lack of a quorum due to the Senate not having been in recess when the January 2012 appointments were made.

This decision now casts into doubt and makes suspect more than 1,300 NLRB decisions, including both published and unpublished, issued by the NLRB.  An excellent summary of the cases that are implicated by the Court’s decision, and the issues involved in each has been prepared by the US Chamber of Commerce Litigation Center.

The Court’s holding, which found that the Senate was not in recess while it was conducting pro forma sessions during December 2012, arose in the context of a challenge to a Board Order in which recess appointees participated; the implications however  are far greater and may implicate a wide range of other Board actions such as the appointment of Regional Directors, the consolidation of Regional offices and other administrative and personnel actions requiring Board approval or authorization.  Notably, in a case decided by a District Court in the Eastern District of Washington last August an employer successfully challenged not only the Board’s authority to authorize a Regional Director to pursue an injunction under Section 10 (j) of the National Labor Relations Act, but the appointment of then Acting NLRB General Counsel Lafe Solomon, who was then a recess appointee.  That case turned on other provisions of the Pay Act, a federal law authorizing the payment of salary to properly appointed recess appointees.

In a relatively understated press release following the Court’s decision, Board Chair Mark Gaston Pearce emphasized the fact that “the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act.”

What this means to Employers, Unions and Others With Cases Before the NLRB

If the Board’s actions following the Supreme Court’s decision concerning an earlier attempt by the NLRB to delegate its decision making authority to a two member panel in the face of  earlier disputes between the President and the Senate is any precedent, it is likely that at least three members of the current five member Senate confirmed Board will try to essentially adopt and approve as many as possible of the Board Orders and actions that would be invalid under Noel Canning.  As shown in the Chamber’s chart, there are a large number of cases that are essentially on hold in Courts of Appeal across the country that have been waiting for the Court’s ruling today.  It is likely that the courts will dismiss these matters or that the NLRB will seek to withdraw those in which it is seeking enforcement of Board Orders.

However, as we and others have pointed out since the issue of the 2012 and earlier recess appointments were placed in doubt, employers and others with matters before the Board, the most prudent course of action would have been to make sure that in addition to any other defenses or grounds for appeal, that parties specifically raise the issue that the Board lacked a quorum and the authority to act when it made decisions, issued orders and took other action.  However even in those cases that were decided by the Board during the period that it lacked a proper quorum, parties may be able to raise the lack of quorum argument in light of today’s decision. Each matter will require an analysis based on its own individual facts and issues.

Additionally, today’s ruling has broad impact even in cases which are currently being investigated at the Regional level or are currently pending before the Board.  Not only can we expect even further delay in Board action (including at the Regional level) as the agency attempts to deal with the backlog created by having to address hundreds cases directly impacted by the Decision.  Specifically, there are thousands of cases which are currently being prosecuted or advanced at various stages which explicitly or tangentially rely on theories or precedents relying on a now invalid Board decision.  Specifically, cases involving at-will employment agreements, arbitration agreements, employee investigations, employee access, dues deductions post-contract expiration, and bargaining over employee discipline have all now been stripped of much of the precedence on which a Region, a union or an employee may be relying.  Again each matter will require an analysis based on its own individual facts and issues.

Management Missives

  • If the “invalid” Board issued a decision impacting an employer it should promptly analyze its options;
  • If an employer has a case in abeyance or pending based on Noel Canning it should obviously expect action in the coming weeks;
  • Employers should look for settlement opportunities with Regions, unions and individuals which may be present as these adverse parties may be more amendable to now that the theory of the case now lacks valid authority or based on their increased workloads;
  • Employers should explore filing supplemental position statements or other filings in any case where a Region, union or employee is relying on an “invalid” decision;
  • Employers should still remain cautious as while many decisions have been put into question, the current composition of the Board provides absolutely no reason for employers to rejoice or be less vigilant, as the current, lawfully confirmed, Board is unlikely to view most issues any differently.

Complimentary Webinar – ADA Part II

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Post-Acute Care in Transition:  Tackling the Legal/Regulatory Transformation of the Industry

Health Care Entities and the ADA:  Part 2 – Complex Issues in the Reasonable Accommodation of Patients, Residents & Guests with Disabilities

Wednesday, July 16, 2014, at 12:00 PM – 1:00 PM (EDT) Presenters: Andrea R. Calem, Epstein Becker Green Frank C. Morris, Jr., Epstein Becker Green

In part two of the webinar series, Epstein Becker Green attorneys explain the laws, regulations, enforcement considerations and hot-button issues relating to the accommodation of individuals with disabilities (be they patients, customers, or members of the public).

Their discussion will focus on the public access provisions of the Americans with Disabilities Act, the Rehabilitation Act, and state statutes, which require health care entities and other public accommodations to make their goods and services fully accessible to individuals with disabilities. Some of the issues to be explored will include:

  • Must a health care provider incur construction costs to reconfigure its treatment rooms?
  • Can hospitals or post-acute care facilities be sued if their websites or online scheduling tools are not accessible to those with sight impairments?
  • Must health care facilities modify diagnostic equipment to make it more accessible to individuals using wheelchairs?
  • What are the required dimensions for accessible changing rooms?
  • Must a skilled nursing facility hire a sign language interpreter for hearing-impaired patients or companions?

We hope that you will join us as we explore these and other hot-button issues confronting post-acute care facilities and all other health care businesses today.

Registration Is Complimentary

To register for this webinar, please click here.

California Supreme Court Opens the Door to Class Action Waivers, Shuts Door to Waiver of Representative Actions

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By Marisa S. Ratinoff and Amy B. Messigian

One of the main battlegrounds between employers and employees relates to the ability of employers to preclude class actions by way of arbitration agreements containing class action waivers. In California, the seminal case of Gentry v. Superior Court (“Gentry”) has had the practical effect of invalidating class action waivers in employment arbitration agreements since 2007. Gentry held that an employment class action waiver was unenforceable as a matter of California public policy if the class action waiver would “undermine the vindication of the employees’ unwaivable statutory rights” under the Labor Code. Thus, California health care employers and national health care employers with a business presence in California have found it extremely difficult, if not impossible, to enforce class action waivers in their employment arbitration agreements over the past seven years and have seen scores of California wage and hour cases proceed in court under the harsh hand of Gentry.

The landscape changed drastically in 2010 when the United States Supreme Court issued its decision in AT&T Mobility, LLC v. Concepcion (“Concepcion”). There, the Supreme Court held that the Federal Arbitration Act (“FAA”) preempts state laws or policies that deem arbitration agreements unconscionable and unenforceable on the basis that they preclude class actions. While the Concepcion case related to a consumer arbitration agreement, many have questioned whether its impact extended to employment arbitration agreements, such as the ones invalidated on public policy grounds under Gentry.

Iskanian v. CLS Transportation Los Angeles, LLC is the first case to test this issue before the California Supreme Court. The decision takes one step forward and one step back. First, the Court held that Gentry has been abrogated by Concepcion. As such, courts may not refuse to enforce an employment arbitration agreement simply because it contains a class action waiver. The Court further rejected the argument that a class action waiver is unlawful under the National Labor Relations Act.

However, the Court also found that an employee’s right to bring a representative action under Private Attorney General Act (“PAGA”) is nonwaivable. Under PAGA, an employee may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. Of the civil penalties recovered, 75 percent goes to the State of California and the remaining 25 percent go to the “aggrieved employees.” The Court held that “an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy.” The Court also found that “the FAA’s goal of promoting arbitration as a means of private dispute resolution does not preclude [California’s] Legislature from deputizing employees to prosecute Labor Code violations on the state’s behalf.” The Court explained that PAGA waivers do not frustrate the FAA’s objectives because the FAA aims to ensure an efficient forum for the resolution of private disputes, whereas a PAGA action is a dispute between an employer and the State, which is being brought in a representative capacity by the employee. Because the State derives the majority of the benefit of the claim and any judgment is binding on the government, it is the “real party in interest,” making a PAGA claim more akin to a law enforcement action than a private dispute. Because of this, it is within California’s police powers to enact PAGA and prevent the waiver of representative PAGA claims.

The practical effect is that even if a class action waiver is enforceable, any purported waiver of a representative PAGA action will be unenforceable. As a result, a complaint filed in court that includes a PAGA cause of action will arguably remain with the court unless the claims are bifurcated. As for Iskanian and his former employer, the Court left these questions to the parties to resolve. While it is possible that Iskanian will be appealed to the United States Supreme Court for guidance, at least for the foreseeable future employers should expect plaintiffs’ counsel to include PAGA causes of action in order to frustrate employer efforts to move wage and hour claims to arbitration.

Going forward, health care employers may want to consider adopting agreements with their California employees that expressly permit representative PAGA claims to be brought in arbitration while waiving all other class claims to the extent allowed by law. Alternatively, employers may revise their agreements to allow for bifurcation of claims or expressly exclude PAGA claims from the scope of the agreement. In either case, employers should use this opportunity to review the terms of their arbitration agreements and put new agreements in place with California employees, if necessary.

New Jersey Whistleblowers Must Identify A Specific Law Or Public Policy Before CEPA Claims Can Be Submitted To A Jury

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By: Mollie O’Brien, James Flynn and Jiri Janko

The Supreme Court of New Jersey held on June 16th that a former registered nurse could not get his whistleblower claim to the jury because he failed to prove at trial that he held a reasonable belief that the conduct to which he objected violated a standard of patient care or a clear mandate of public policy.  James Hitesman v. Bridgeway, Inc., A-73-12,  involved allegations of improper quality of patient care at a long-term care nursing home facility, allegations that the plaintiff attempted to support with references to the American Nursing Association’s Code of Ethics (“ANA Code”), the Bridgeway Employee Handbook and its Statement of Resident Rights.  The Supreme Court ruled that these are not expressions of law or mandates of public policy on which Conscientious Employee Protection Act (“CEPA”) claims may rest.  This decision is of interest to employers, especially in the health care field, and to those watching the evolution of New Jersey’s whistleblower jurisprudence.

Part of appreciating the case’s import is understanding its facts.  Plaintiff was a nurse at the Bridgeway Care Center.  In January 2008, he reported to his supervisors, certain government health organizations, and a local television station that patients at the nursing home had experienced what he believed was an unacceptable increase in respiratory and gastrointestinal symptoms.  Bridgeway thereafter discovered that plaintiff disclosed to the television station partially-redacted patient records, which conduct violated Bridgeway’s confidentiality policy and the Health Insurance Portability and Accountability Act of 1996.  Accordingly, plaintiff was discharged.  Following his discharge, plaintiff brought a CEPA claim against Bridgeway.  He alleged that his discharge violated CEPA’s prohibition of retaliatory action against a licensed or certified health care employee who reports on, or objects to, an employer activity that the employee reasonably believes to constitute “improper quality of patient care” or which the employee reasonably believes to be “incompatible with a clear mandate of public policy concerning the public health.”  N.J.S.A. 34:19-3a(1), 3c(1), and 3c(3).

The case proceeded to trial, and at the close of plaintiff’s case, Bridgeway moved for an involuntary dismissal on the grounds that plaintiff failed to meet his burden in proving the first prong of a CEPA claim:  that he reasonably believed that Bridgeway violated a specific law or public policy.  The motion was denied, and the jury subsequently returned a verdict for plaintiff on liability, but awarded no damages.  The Appellate Division reversed, holding that the trial court’s denial of Bridgeway’s motion was improper. 

The New Jersey Supreme Court affirmed the reversal.  Following Dzwonar v. McDevitt, 177 N.J. 451 (2003), the Supreme Court held that, before submitting the claim to the jury, a trial court must find a substantial nexus between the employer’s practice, procedure, action or failure to act, and a law, rule, regulation, declaratory ruling, or professional code of ethics or public policy.  Under that analysis, plaintiff has the burden of identifying the legal authority or a clear mandate of public policy that provided a standard against which Bridgeway’s conduct could be measured.  The Court concluded that in this case plaintiff failed to meet this burden.  In the Court’s opinion, the sources that plaintiff identified – section 3.5 of the ANA Code, the Bridgeway Employee Handbook and its Statement of Resident Rights – failed to define an accepted standard of patient care or state a clear mandate of public policy.  While the ANA Code addressed the obligation of a nurse to report inadequate medical care, it neither governed Bridgeway’s patient care nor specified how Bridgeway should have treated its patients’ illnesses.  Lastly, Bridgeway’s handbook and Statement of Resident Rights was silent as to a standard for Bridgeway’s response to infectious diseases in patients or any authority that could be construed as an expression of public policy.  Accordingly, the Court concluded the trial court should have dismissed the lawsuit for plaintiff’s failure to identify a law or public policy that he believed to have been violated.

The dismissal confirms that New Jersey places a high burden on CEPA plaintiffs to identify specific sources of law or public policy that relate to the conduct of which they complain before their case will be submitted to a jury.  It separately establishes that a CEPA plaintiff must present evidence as to which law, rule, regulation, declaratory ruling, professional code of ethics or public policy he believes his employer violated at trial.  While Hitesman had identified other legal sources in prior motions, the court held that the trial court could not rely on those sources when deciding Bridgeway’s motion as it was constrained to consider only evidence that was presented for the jury’s consideration at trial.  Hitesman is also of interest for those awaiting the Court’s ruling in Lippman v. Ethicon, Docket No. 73324, another healthcare related CEPA case, where the parties and various amici curiae have asked the Court to determine whether reports made by employees in the regular course of fulfilling jobs as safety or quality inspectors amount to protected whistleblowing under CEPA. 

While some employers may read Hitesman as a harbinger of a hoped-for pro-employer ruling in Lippman, more sophisticated employers understand that handling the highly-specialized and highly regulated workplaces across the healthcare and life science industry will, regardless of the outcomes of Hitesman and Lippman, requires an integrated understanding of applicable and evolving employment law as well as applicable healthcare regulations and standards, and applicable facts.  Experienced counsel able to address those diverse but converging areas certainly can enhance that understanding.

 

DOL to Revise Definition of “Spouse” in FMLA Regulations

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 By Anna A. Cohen

In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” in light of the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013).   In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take FMLA leave, among other reasons, to care for the employee’s spouse who has a serious health condition.

1. Place of Residence Definition

In August 2013, the DOL issued updated FMLA guidance documents as a result of President Obama’s directive to the DOL to coordinate with other federal agencies to implement the Windsor decision.  This initial guidance removed references to DOMA, affirming the availability of spousal leave based on same-sex marriages under the FMLA; however, the DOL only expanded benefits to same-sex married couples residing in states that recognize same-sex marriage.  For example, updated DOL Fact Sheet # 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act defines a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  This narrow definition of “spouse” is significant to employers with locations in multiple states since only 19 states, to date, recognize same-sex marriage, whether by court decision, legislation or popular vote.  If the DOL codifies the place of residence definition of “spouse,” employers with employees in a same-sex marriage who work in a state where their marriage is legally recognized, but live in a state where it is not, would not be legally entitled to FMLA benefits to care for their spouse. 

2. Place of Celebration Definition

Another option would be for the DOL to broaden the definition of “spouse” to recognize legally married individuals under any state law, regardless of the employee’s residence.  This definition would be consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act (ERISA).  In its ERISA Guidance, the DOL defined the term “spouse” as any “individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”  If the DOL were to adopt the broad place of celebration definition of “spouse” contained in its ERISA Guidance when it amends the FMLA Regulations, FMLA benefits would be available to all legally married spouses, regardless of the definition of “marriage” in the state where the employee lives or where the employer operates.  Accordingly, employers would look to the place of celebration to determine whether employees are entitled to spousal benefits under the FMLA.  For example, employers with employees who legally enter into a same-sex marriage in the Northeast would be considered legally married for purposes of the FMLA in all of the employer’s locations, even if they subsequently live or work in a state which does not recognize that marriage.  

Regardless of the definition adopted by the DOL, employers in all states must be alert to this impending change.  Once the FMLA Regulations are amended, employers should review all FMLA-related policies, procedures, forms and notices.  Employers should also be aware of their obligations under state and local leave laws that may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in civil unions or domestic partnerships. We will continue to monitor the DOL’s position on same sex marriage as it affects the FMLA and other laws and regulations.

Post-Acute Care in Transition: Tackling the Legal/Regulatory Transformation of the Industry

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A Nelson Hardiman and Epstein Becker Green Webinar Series

The post-acute spectrum of care is going through a period of profound legal changes, from newly emerging risks to integration with acute care and the transition to managed care. This series features leading attorneys sharing insights into compliance challenges and strategies. Join us for this series and stay ahead of the latest regulatory updates in long-term care.

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A Complimentary Two-Part Webinar on the Americans with Disabilities Act (ADA)

Health Care Entities and the ADA: Part I – Complex Issues in the Reasonable Accommodation of Employees with Disabilities

Wednesday, June 18, 2014, at 12:00 PM – 1:00 PM (EDT)

Presenters:
Frank C. Morris, Jr., Epstein Becker Green
Andrea R. Calem, Epstein Becker Green

Health Care Entities and the ADA: Part 2 – Complex Issues in the Reasonable Accommodation of Patients, Residents & Guests with Disabilities

Wednesday, July 16, 2014, at 12:00 PM – 1:00 PM (EDT)

Presenters:
Frank C. Morris, Jr., Epstein Becker Green
Andrea R. Calem, Epstein Becker Green

To register for this webinar, please click here.

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Therapy Utilization: Evolving Rules and Enforcement

Wednesday, August 20, 2014, at 12:00 PM – 1:00 PM (EDT)

Presenters:
Harry Nelson, Nelson Hardiman
Robert E. Wanerman, Epstein Becker Green

Wage & Hour Issues in Post-Acute Care

Wednesday, September 17, 2014, at 12:00 PM – 1:00 PM (EDT)

Presenters:
Adam C. Abrahms, Epstein Becker Green
Aaron F. Olsen, Epstein Becker Green

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If you have questions regarding this event, please contact Kiirsten Lederer at (212) 351-4668, or klederer@ebglaw.com.