In Makinen v. City of New York, New York’s Court of Appeals held the New York City Human Rights Law precludes an individual from bringing a claim of disability discrimination based on a mistaken perception of untreated alcoholism.

The question arose in a case brought by police officers against the City of New York and certain individuals alleging discrimination based on the mistaken perception that the plaintiffs were alcoholics. The plaintiffs had been referred to an internal counseling service and directed to undergo treatment even though neither plaintiff had been diagnosed as suffering from alcoholism. The plaintiffs filed a lawsuit in federal court under New York State and City Human Rights Laws and the Americans with Disabilities Act.  The district court held individuals regarded as untreated alcoholics could state a claim under the City Human Rights law because analogous claims were available under state and federal law.  On appeal, the Second Circuit certified the following question to the Court of Appeals: “Whether sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

The Court of Appeals answered the certified question in the affirmative, finding the City Human Rights law was “only open to one reasonable interpretation: the disability of alcoholism shall only apply to a person who (1) is recovering or has recovered, and (2) currently is free of such abuse.”

Since the Restoration Act of 2005, courts have broadly construed the City Human Rights law to provide greater protections for employees than its federal and state counterparts. The Court of Appeals’ decision in Makinen represents a rare finding that the City Human Rights law provides less protection than state and federal law. Even so, employers should remain cognizant of the provisions of the New York State Human Rights Law and the Americans with Disabilities Act, as they already prohibit discrimination based on perceived alcoholism.

Our colleague , a Member of the Firm at Epstein Becker Green, has a post on the Technology Employment Law blog that will be of interest to many of our readers in the health care industry: “Get Ready to Respond to IRS Letter 226J: Employer Shared Responsibility Payment Assessments.”

Following is an excerpt:

In a recent update to the IRS’ Questions and Answers on Employer Shared Responsibility Provisions under the Affordable Care Act, the IRS has advised that it plans to issue Letter 226J informing applicable large employers (ALEs) of their potential liability for an employer shared responsibility payment for the 2015 calendar year, if any, sometime in late 2017.  The IRS plans to issue Letter 226J to an ALE if it determines that, for at least one month in the year, one or more of the ALE’s full-time employees was enrolled in a qualified health plan for which a premium tax credit (PTC) was allowed (and the ALE did not qualify for an affordability safe harbor or other relief for the employee). The IRS will determine whether an employer may be liable for an employer shared responsibility payment, and the amount of the potential payment, based on information reported to the IRS on Forms 1094-C and 1095-C and information about the ALEs full-time employees that were allowed the premium tax credit. …

Read the full post here.

Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Proposed Federal Bill Would Pre-Empt State and Local Paid Sick Leave Laws.”

Following is an excerpt:

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight states and more than 30 local jurisdictions have passed paid sick leave laws.

The minimum amount of paid leave employers would be required to provide depends on the employer’s size and employee’s tenure. The bill does not address whether an employer’s size is determined by its entire workforce or the number of employees in a given location. …

Read the full post here.

Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “New Jersey’s Appellate Division Finds Part C of the “ABC” Independent Contractor Test Does Not Require an Independent Business

Following is an excerpt:

In a potentially significant decision following the New Jersey Supreme Court’s ruling in Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015), a New Jersey appellate panel held, in Garden State Fireworks, Inc. v. New Jersey Department of Labor and Workforce Development (“Sleepy’s”), Docket No. A-1581-15T2, 2017 N.J. Super. Unpub. LEXIS 2468 (App. Div. Sept. 29, 2017), that part C of the “ABC” test does not require an individual to operate an independent business engaged in the same services as that provided to the putative employer to be considered an independent contractor. Rather, the key inquiry for part C of the “ABC” test is whether the worker will “join the ranks of the unemployed” when the business relationship ends. …

Read the full post here.

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

Although the health care debate has received the bulk of the media attention, other legal developments also promise to have significant impact on health care employers.  For instance, the  Equal Employment Opportunity Commission (“EEOC”) appears to have set its sights on the accommodation of disabled workers in the health care industry, and recent decisions regarding employees’ rights to use medical marijuana may impose new burdens on employers.

These and other developments are discussed in this edition of Take 5:

  1. Will The Affordable Care Act’s Non-Discrimination Regulations Continue to Cover Gender Identity and Transition Services?
  2. Restrictive Covenants – How Effective are Non-Competes and Non-Solicits in the Health Care Industry?
  3. Navigating the Interactive Process:  Best Practices for Complying with the ADA
  4. A Growing Trend In Favor of Medical Marijuana Users in the Employment Context
  5. ERISA Withdrawal Liability: Make Sure to Look Before You Leap Into Mergers and Acquisitions

Read the full Take 5 online or download the PDF.

For the second time in as many years, California Governor Jerry Brown has vetoed “wage shaming” legislation that would have required employers with 500 or more employees to report gender-related pay gap statistics to the California Secretary of State on an annual basis beginning in 2019 for publication on a public website. Assembly Bill 1209 (“AB 1209”), which we discussed at length in last month’s Act Now advisory, passed the Legislature despite widespread criticism from employers and commerce groups.  This criticism included concerns that publication of statistical differences in the mean and median salaries of male and female employees without accounting for legitimate factors such as seniority, education, experience, and productivity could give a misleading impression that an employer had violated the law.  Opponents also decried the burden the bill would place on employers to do data collection and warned that it would lead to additional litigation.  In vetoing the measure, Governor Brown noted the “ambiguous wording” of the bill and stated he was “worried that this ambiguity could be exploited to encourage more litigation than pay equity.”

However, the same pen that vetoed AB 1209 signed another pay-equity law last week: Assembly Bill 168 (“AB 168”).  AB 168 precludes California employers from asking prospective employees about their salary history information.  “Salary history information” includes both compensation and benefits.  Like similar laws passed recently in several other states and cities, the policy underlying the inquiry ban is that reliance upon prior compensation perpetuates historic pay differentials.  Opponents have argued that such a ban will make it more difficult for employers to match job offers to market rates.  Go to our Act Now Advisory on AB 168 for a comprehensive review of this new law.

In an October 4, 2017 letter to all United States attorneys and heads of federal agencies, Attorney General Jeff Sessions announced that the Department of Justice (“DOJ”) will no longer interpret Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide employment protections to transgender individuals.  This statement reversed former Attorney General Eric Holder’s position, who previously concluded that Title VII does protect transgender individuals from employment discrimination.

Although this letter from the Attorney General is a departure from the DOJ’s prior position, this announcement is not surprising.  Earlier this year the DOJ filed a brief, without being asked by the court, in a case before the Second Circuit Court of Appeals in Zarda v. Altitude Express.  The DOJ argued that Title VII does not prohibit employment discrimination on the basis of sexual orientation.  In that same matter, the current Equal Employment Opportunity Commission’s (“EEOC”) argued that Title VII does prohibit discrimination on the basis of sexual orientation.  This case has not yet been decided, but Judge Rosemary Parker of the Second Circuit noted during oral arguments that “[i]t’s a little bit awkward for us to have the federal government on both sides of the case.”

The grounds for this change in interpretation by the DOJ could be based on several reasons – whether political or based on a strict textual interpretation of Title VII.  Regardless of the motive, however, this policy change is yet another signal that the DOJ will likely continue to actively argue in court, whether they are a party or not, that Title VII and other laws do not provide protection to LGBT individuals.  It is also likely that the DOJ will seek to withdraw itself from any active litigation in support of expanding such protection.

Regardless of the rationale for issuing this letter, the impact of the Attorney General’s new interpretation of Title VII likely will not have significant immediate impact on employer obligations and conduct for several reasons.  First, the DOJ’s newly stated position stands in direct opposition to the EEOC interpretation of Title VII, and the EEOC is the primary federal agency tasked with investigating violations of and pursuing enforcement of Title VII.  While the DOJ has the ability to prosecute violations of Title VII against state and local governments, it does not do so with nearly the frequency of the EEOC, and does not do so with respect to private employers.  Second, courts ultimately will determine the scope of Title VII, not the DOJ.  While the DOJ may seek to persuade the courts that Title VII does not provide protection for transgender individuals, as it did in its amicus brief filed in Zarda, the DOJ’s insertion into such lawsuits does not guarantee that its position will be accepted.  The Supreme Court held in Price Waterhouse v. Hopkins, almost thirty years ago, that employment discrimination based on sex stereotypes is unlawful sex discrimination under Title VII, and this decision has been relied on in dozens of subsequent lower court decisions in finding that protection from discrimination based on someone’s transgender status falls within the text of Title VII.  Finally, numerous states and localities, such as New York and the District of Columbia, already have passed legislation to expressly prohibit discrimination based on gender identity.

On Friday October 6, 2017, the Trump administration released two interim final rules expanding the exemptions allowed under the Patient Protection and Affordable Care Act’s (the “ACA’s”) contraceptive coverage mandate. Under the ACA, employer group health plans generally are required to cover contraceptives, sterilization, and related patient education and counseling, with exemptions provided for religious houses of worship. The exemption was expanded by the Department of Health and Human Services (HHS) as a result of the Supreme Court’s decision in Burwell v. Hobby Lobby 34 S. Ct. 2751 (2014), which held health plans of closely held for-profit corporations are not required to cover contraceptives if doing so would contradict the owner’s religious beliefs under the Religious Freedom Restoration Act.

The interim final rules, released by the Treasury Department, Department of Labor (DOL), and HHS, are effective immediately and provide exemptions from the contraceptive coverage mandate to many employers with “sincerely held religious beliefs” or “sincerely held moral convictions.” The interim final rules limit the exemption for “sincerely held moral convictions” to houses of worship, tax-exempt entities, and closely held for-profit corporations, but permit publicly traded for-profit entities to use the exemption for “sincerely held religious beliefs.”

According to the Trump administration, the United States has had a long history of providing protections in the regulation of health care for individuals and entities with objections based on religious beliefs or moral convictions.

To take advantage of the new exemption, eligible employers must notify employees that they will no longer provide contraceptive coverage but need not inform the federal government. The Employee Retirement Income Security Act of 1974, as amended (ERISA), requires that a Summary of Material Modification (SMM) is provided within 60 days of a “material reduction” in covered services or benefits provided under a group health plan. A material reduction includes the elimination of benefits payable under a group health plan.

According to an Obama administration report released last year, 55 million women have gained access to no-cost birth control as a result of the contraceptive coverage mandate. It is not clear how many entities may claim the exemptions, but HHS has predicted about 200 entities (affecting 120,000 women) may do so based on the number of entities that filed lawsuits.

Written comments on the interim final rules are due December 5, 2017.

 

Our colleague Sharon L. Lippett, at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our health care and life sciences employers and plan sponsors: “Plan Sponsors: Potential Targets for IRS Compliance Examinations.”

Following is an excerpt:

The IRS recently released the Tax Exempt and Government Entities FY 2018 Work Plan (the “2018 Work Plan”) which provides helpful information for sponsors of tax-qualified retirement plans about the focus of the IRS’ 2018 compliance efforts for employee benefit plan.  While the 2018 Work Plan is a high-level summary, it does address IRS compliance strategies for 2018 and should assist plan sponsors in administering their retirement plans.…

Read the full post here.

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Employment Law This Week (Episode 88: Week of September 25, 2017) has released bonus footage of its interview with Michael McGahan, a Member of the Firm at Epstein Becker Green.

As Mike discusses, New York home care agencies typically pay sleep-in home health aides for 13 hours per day, relying on a 2010 opinion from the state Department of Labor. Two home health attendants who claimed they did not “live in” the homes of their clients filed suit against their employers, claiming that their patients’ need for 24-hour supervision required them to be working or on call for all 24 hours. They argued that they should have been paid the minimum wage for each hour. A state appellate court ruled in favor of the plaintiffs, finding that the 13-hour rule violates the state’s minimum wage law. The Department of Health is currently reviewing the decision.

See also Mike’s recent post on this blog: http://www.ebglaw.com/eltw88-heal