Health Employment And Labor

labor and employment law for the healthcare industry

NYC Affordable Transit Act Passes – Expanding the Right to Pre-Tax Transit Benefits to More New Yorkers

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Health care employers doing business in New York City should take note of a new ordinance Mayor Bill de Blasio signed into law on October 20, 2014 – The Affordable Transit Act. 

The Affordable Transit Act (the “Act”) requires employers in New York City with 20 or more full-time employees to offer pre-tax transit benefits to employees. The Act allows employees to use up to $130 in tax free money towards their transit costs, which is the current IRS limit.  Full-time employees are defined as employees working an average of 30 hours or more per week. 

Penalties for violating the Act are $100-$250 for first time violations and $250 for repeat violations.  Health care employers, however, have 90 days to cure the first violation before any civil penalties will be imposed and penalties will not be imposed on any employer more than once in any 30-day period.

Health care employers are exempt from the Act if a collective bargaining agreement covers the relevant employees or where the health care employer is not required to pay federal, state and city payroll taxes.  In addition, the Department of Consumer Affairs may waive the requirements if an employer demonstrates that offering the benefit is a financial hardship.

According to the Mayor’s office, the legislation is expected to save employees over $400 a year on Metro Card expenses and employers more than $100 per year per employee in tax liability.  The Mayor’s office also predicts that the Act will extend transit benefits to more than 450,000 employees in NYC who are not currently offered them.

The Act takes effect on January 1, 2016 but in order to allow businesses adequate time to adjust to the new law, employers will not be subject to penalties prior to July 1, 2016. 

Employers who do not already offer pretax transit benefits should take the next year to ensure compliance with the new law, assess and make any necessary changes to their payroll and benefits systems, and prepare communications to employees.

Act Now Advisory – Protecting Your Workforce: What You Need to Know About Ebola

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By Frank C. Morris, Jr.

The Ebola virus disease (“Ebola”) has become a worldwide threat, which, among many other effects, has forced employers to think about how to protect their employees. Employers also must consider how Ebola might impact employment policies and procedures, including, but not limited to, those addressing attendance, leaves of absence, discipline, and medical testing.

My colleagues and I have written a detailed Act Now advisory providing legal framework of best practices and legal risks pertaining to Ebola.

Click here to read the advisory in its entirety.

Complimentary Webinar – Eye on Ebola: Issues Impacting Health Care Providers

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WHEN: November 17, 2014

TIME:    2:00pm – 3:30pm EST

To register for this webinar, please click here.

Please join us for a complimentary webinar addressing the professional and business challenges encountered by health care providers dealing with Ebola and other infectious diseases. This webinar will offer a clinical overview as well as a review of the guidelines which offer protocols for addressing concerns over Ebola and similar diseases, the health regulatory and risk management issues providers might consider in developing a response strategy, and the resulting labor and employment considerations facing health care employers. A question and answer period will follow the program.

Topics will include:

  • Clinical Overview and Emergency Management Issues
  • Health Regulatory Considerations for Providers
  • Risk Management Concerns
  • Employment Issues Confronting the Health Care Industry

Speakers:

  • Bruno Petinaux, M.D. – Associate Professor, Co-Chief of the Emergency Management Section, Department of Emergency Medicine, George Washington University Medical Faculty Associates
  • George B. Breen – Member, Epstein Becker Green, Chair, Health Care and Life Sciences Practice Steering Committee
  • Frank C. Morris, Jr. – Member, Epstein Becker Green, Employment, Labor and Workforce Management Practice
  • Amy F. Lerman – Associate, Epstein Becker Green, Health Care and Life Sciences Practice

To register for this webinar, please click here.

If you have questions regarding this event, please contact Whitney Krebs at (202) 861-0900, or wkrebs@ebglaw.com.

The Hobby Lobby Decision: Stuart M. Gerson to Speak at a Cornell ILR NYC Briefing

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On Thursday, October 30, 2014, our colleague Stuart M. Gerson of Epstein Becker Green’s Litigation and Health Care and Life Sciences practices in the firm’s Washington, DC and New York offices will discuss the Hobby Lobby decision and its impact on the workplace.  The briefing will be held at the Cornell ILR School of Labor and Employment.  Other panelists include Marci A. Hamilton, Esq., Paul R. Verkuil, Esq., Arthur S. Leonard, Esq., and Paul W. Mollica, Esq. 

Click here to learn more and to register

When:
Thursday, October 30, 2014
8:30am – Registration & Breakfast
9:00am-11:00am – Program

Where:
Cornell ILR NYC Conference Center
16 East 34th Street, 6th Floor
New York, NY 10016

CLEs:
2.0 NYS CLEs – Professional Practice (Transitional and Non-Transitional)

Fee:
$175 (includes materials and continental breakfast)

 

 

Epstein Becker Green’s Wage and Hour App Is Now Available for iOS, Android, and BlackBerry

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Wage & Hour Guide App for Employersby Michael Kun

We’re very pleased to announce that a brand-new version of our free, first-of-its-kind app, the Wage & Hour Guide for Employers, is now available for Apple, Android, and BlackBerry devices. The new app takes advantage of a software-as-a-service programming platform developed by Panvista Mobile.

Our newest version of the app is not only available to users of a variety of devices, but it offers simpler, faster, and more useful ways for employers to locate wage and hour information at the touch of a fingertip.  As new issues are constantly emerging in this area, we’re pleased to provide updated information and critical tools to help employers address wage and hour laws and regulations, such as recent minimum wage increases.

Key features of the updated app include:

  • The Android version is now available for the first time on the Google Play store – also it is also available for BlackBerry devices
  • Updated iPhone and iPad versions are now available on the App Store
  • New summaries of wage and hour laws and regulations are included, including recent minimum wage increases in California, Connecticut, Georgia, Illinois, Maryland, Massachusetts, New Jersey, New York, Texas, Virginia, and the District of Columbia
  • Direct feeds of EBG’s Wage & Hour Defense Blog
  • Easy sharing of content via email and social media
  • Access to EBG’s @ebglaw Twitter feed
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

Existing iOS users should visit the App Store to download the new iPhone and iPad versions; the previous edition of the app is retired.

Update on Immigration ~ Issues for Health Care

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Epstein Becker Green colleagues Robert S. Groban, Jr. and Matthew S. Groban provide an update to the health care industry in the Immigration Alert: September 2014, including an update on the Sixth Circuit Expanding the Liability of Health Care Employers for Sponsorship Costs.

Based on the Kutty decision, health care employers can expect more aggressive enforcement activity in connection with their employment of foreign nationals (“FNs”) generally and foreign medical professionals sponsored for H-1B classification and J-1 waivers of the two-year foreign residence requirement that many J-1 residents face.  For the full client alert, click here.

Five ACA Issues that Employers Should Be Following

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Our Epstein Becker Green colleagues have released a new Take 5 newsletter: “Five ACA Issues that Employers Should Be Following” by David W. Garland, Adam C. Solander, and Brandon C. Ge. Below is an excerpt:

Employers have about three months to finalize their employer mandate compliance plans under the Affordable Care Act (“ACA”). While most employers are in the final stages of planning, this month’s Take 5 will address five ACA issues that employers should be aware of as they move forward:

  1. ACA-related litigation
  2. Employer mandate reporting
  3. Section 510 liability
  4. Alternatives to traditional plan offerings
  5. The looming Cadillac tax

Read the full newsletter here.

 

Complimentary Webinar to Examine Population Health Strategies for Employer-Based Coverage

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Epstein Becker Green and EBG Advisors, as part of the Thought Leaders in Population Health Speaker Series, will host a complimentary webinar in August on emerging trends in value-based purchasing in health care. The session, Population Health Strategies for Employer-Based Coverage, will assess how employers and other health plan sponsors are developing new programs to promote enhanced clinical and financial outcomes for the groups and populations they manage. In particular, speakers will highlight how the Affordable Care Act (ACA) is influencing population health management strategies for employer-based coverage.

The webinar, scheduled for August 26, 2014, at 12:00 p.m. ET, will be led by two thought leaders from the Health Care Incentives Improvement Institute (HCI3): Francois de Brantes, MS, MBA, Executive Director; and Douglas Emery, MS, Program Implementation Leader, Western Region. Gretchen K. Young, Senior Vice President, Health Policy, The ERISA Industry Committee (ERIC), will also serve as a panelist and Adam Solander, Associate, Epstein Becker Green, will moderate the session. To register, click here.

During the webinar, the panelists will discuss:

  • How ACA’s Cadillac tax on health benefits is changing the way employers pay for insurance coverage and how employees access and use insurance and wellness benefits.
  • How employers are creating and implementing new incentive programs to align prudent purchasing with proper care management techniques.
  • Emerging legal and reporting requirements based upon ACA and state requirements.

The Thought Leaders in Population Health Speaker Series offers participants informative and insightful guidance on how population health strategies are transforming the health care paradigm as the industry moves towards measurement and management of integrated delivery systems such as accountable care organizations (ACOs). All previous webinar programs can be viewed online. To register for this session, please click here.

“The Population Health Webinar Series attempts to find some common ground for health care professionals and other health care stakeholders by identifying best practices and creating a call to action for collaboration and outcomes improvement nationwide,” says Mark Lutes, Chair of Epstein Becker Green’s Board of Directors. “From the Affordable Care Act and data analytics to advancement in health IT systems, a number of factors are having a significant impact on the health care delivery system.”

BIG MAC ATTACK: NLRB General Counsel Argues Franchisees and McDonald’s Are Joint Employers

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With the consolidation of the healthcare industry creating different levels of integration and affiliation among providers and their various service providers and contractors, the issue of joint-employer status has become a prominent issue of concern. As the NLRB moves towards a broader definition of joint employer status, the  NLRB’s General Counsel’s position in a series of cases involving McDonald’s and numerous franchisees across the country appears to foreshadow the NLRB’s new, more aggressive position on what factors establish the joint employer relationship.

On Epstein Becker Green’s Management Memo blog, Steven M. Swirsky discusses this issue and the following is an excerpt from the blog post:

NLRB General Counsel Richard Griffin announced on Tuesday July 29th that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of 181 charges pending against McDonald’s, USA, LLC and various of its franchisees, in which the Board will allege that the company and its franchisees are joint-employers. If the General Counsel prevails on his theory that McDonalds is a joint employer with its franchisees, the result would be not only a finding of shared responsibility for unfair labor practices, but could also mean that the franchisor would share in the responsibilities of collective bargaining if unions are successful in organizing franchisors’ workers.

To access the full blog post, please click here.

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.