Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status

April 9, 2015

Employers covered by the Family & Medical Leave Act (FMLA) have a temporary reprieve from the obligation to comply with a change to the FMLA regulations’ definition of “spouse” that requires FMLA-covered employers to recognize certain same-sex relationships as marriages for purposes of the FMLA that had been slated to take effect on March 27, 2015 under a preliminary injunction order granted by the District Court for the Northern District of Texas in Texas v. U.S, No. 7:15-cv-00056-O, 2015 BL 84253 (N.D. Tex. Mar. 26, 2015).   However the delay in the implementation of the regulation as a practical matter may present traps for unwary employers in light of federal employment discrimination law rules that prohibit employers from discriminating against employees based on sexual orientation or gender identity. 

The preliminary injunction issued by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas on March 26 rule enjoins the Labor Department from enforcing a final regulation that would require employers covered by the FMLA to grant workers in legal same-sex marriages to take job-protected leave under the FMLA to care for a seriously ill spouse even if the state where the employee lives or works doesn’t recognize same-sex marriages.

The preliminary injunction resulted from a lawsuit brought by the attorney generals of Texas, Arkansas, Louisiana and Nebraska questioning the validity of change to the definition of “spouse” in DOL Regulation § 825.102 and § 825.122 to expand the definition of the term “spouse” for purposes of the FMLA to include same-sex relationships recognized as marriage under the state law of the location of the marriage celebration.

The Final Regulation redefining the term “spouse” for purposes of the FMLA is one of a host of changes to federal employment, tax, immigration and other regulations and enforcement policies announced by the Obama Administration in response to the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013).

In Windsor, the Supreme Court ruled unconstitutional and struck down Section 3 of the Defense of Marriage Act (DOMA), which sought to preclude same-sex couples from being treated as married for purposes of federal law including the FMLA by restricting the definition of marriage for federal law only to relationships between persons of the opposite sex.

If and when implemented, the FMLA Final Regulation will revise the DOL’s FMLA regulations to provide that “Spouse” means

a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a State that recognizes such marriages; or
  2. If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

According the DOL, the adoption of a place of celebration standard for determining marital status in the Final Rule ensures that all legally married employees have consistent FMLA leave rights regardless of where they live. The Department believes that this place of celebration rule will give fullest effect to the purpose of the FMLA to let employees to take unpaid, job-protected leave to care for a spouse for an FMLA-qualifying reason.  Thus, whether a same-sex or other couple qualifies as married for purposes of the FMLA turns upon whether the couple is in a relationship legally recognized as a married in the state in which the ceremony was performed.  However, the Final Regulation does not require employers to treat same-sex civil unions, as well as opposite-sex civil unions, as marriages and as such are not guaranteed the right to take FMLA spousal leave nor do have other protections of the Act, including from retaliation. As noted above, an employer may offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, including voluntarily offering other types of leave for couples in civil unions. In addition, eligible employees in civil unions can take FMLA leave for their own serious health condition, for the birth of a child or the placement of a child for adoption or foster care and for bonding, to care for their child or parent with a serious health condition, and for qualifying military family leave reasons.

In Texas v. U.S., the states jointly argued that the Final Rule unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages.  Explaining his finding that the states had demonstrated a substantial likelihood of prevailing on the merits on their claim that the Final Regulation violates the Full Faith & Credit Clause of the U.S. Constitution, Judge O’Conner wrote, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages.”  Accordingly, Justice O’Conner ordered the Labor Department to stay implementation of the Final Regulation pending a decision on the merits of the states’ claims.

Even as Judge O’Connor issued his preliminary injunction, the Obama Administration was moving ahead to implement new mandates extending sweeping new protections prohibiting government contractors and subcontractors from discriminating against workers based on sexual orientation or gender identity under an Executive Order issued by President Obama that took effect April 8, 2015.  See Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US EmployersSince the preliminary injunction issued by Judge O’Connor does not apply to that Executive Order, employers contemplating holding off granting FMLA rights to employees involved in same-sex relationships should consult with legal counsel about the potential that such delay, despite Judge O’Connor’s order, might form the basis of employment discrimination, government contracting regulation violations or both.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

Solutions Law Pressâ„¢ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.


Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers

April 8, 2015

Effective today (April 8, 2015), all U.S. businesses working as government contractors or subcontractors are prohibited from discriminating in employment against lesbian, gay, bisexual and transgender (LGBT) applicants and employees on the basis of sexual orientation or gender identity. While the new LGBT nondiscrimination rules for government contractors and subcontractors imposed by are the latest in a series of changes imposing new obligations for U.S. government contractors and other U.S. employers in their dealings with LGBT workers, all employers of 15 or more employees, not just government contractors, increasingly face employment discrimination risks and other expanding obligations to LGBT workers as a result of evolving judicial precedent and the pro-LGBT rights regulatory agenda of the Obama Administration. As publicity and the Obama Administration’s outreach about the implementation of the new nondiscrimination rules for government contractors and other announcements about these other new federal LGBT employment protections are likely to fuel new claims and demands by workers asserting these new rights, government contractors and all other employers should act quickly to ensure that their policies and benefit programs, as well as compliance and risk management procedures are properly updated to meet these changing federal rules regarding the employment rights of LGBT workers.

The new federal government contracting prohibition against sexual orientation and gender identity discrimination by federal government contractors is imposed by President Obama’s Executive Order on LGBT Workplace Discrimination, which takes effect today and applies to all federal government contractors and subcontractors regardless of the type of government contract, number of employees or project revenue. The Executive Order’s requirement that government contractors and subcontractors not discriminate based on sexual orientation or gender identity covers every type of new and modified federal contract and every establishment of those contractors and subcontractors – not just the ones directly involved in performing the contract. As a result of the Executive Order, all federal government contractors and subcontractors are prohibited from discriminating against lesbian, gay, bisexual or transgender people in hiring, firing, pay, promotion and other employment practices based on their sexual orientation or gender identity.

The Executive Order’s prohibition against federal contractors and subcontractors discriminating on the basis of sexual orientation and gender identity expressly elevates sexual orientation and gender identity to the same protected status as race, color, religion, national origin, disability and veteran status for purposes of the employment discrimination rules applicable to federal government contractors. While at this point, the Obama Administration rules do not also require federal government contractors and subcontractors to undertake any specific new record keeping, data analysis, goal setting or other similar affirmative action, government contractors and subcontractors of all types and sizes will want to take care to update their nondiscrimination policies and practices to reflect their policy against discrimination based on sexual orientation or gender identity, as well as ensure that their hiring, promotion, compensation and other employment practices and associated documentation are administered and documented to defend against potential discrimination charges based on gender identity or sexual orientation.

While the Executive Order expressly applies only to government contractors and subcontractors, in fact all employers of 15 or more employees increasingly need to be concerned about employment discrimination exposures brought by employees who are, or are perceived to be LGBT individuals, as well as keeping their employment and employee benefit practices compliant with a host of recent federal rule changes on the treatment of LGBT individuals.

On the employment discrimination front, most employers, not just government contractors, need to use care to meet their duty to protect LGBT and others from “gender stereotyping” and same-sex sexual harassment or other sex discrimination in their workplaces recognized by the courts as encompassed in Title VII’s sex discrimination protections.

Under the gender stereotyping theory recognized by the Supreme Court in Price Waterhouse v. Hopkins (1989), for instance, an employer violates Title VII if “X discriminates against Y because X believes that Y does not dress, walk, talk, etc. as members of Y’s gender typically do.”  In EEOC v. Boh Bros. Const. Co., LLC , 731 F. 3d 444 (5th Cir. 2013) for instance, the Fifth Circuit upheld Title VII gender stereotying based sex discrimination claims of an iron worker  who claimed his supervisor in the all-male work environment  accused him of being gay subjected him to highly offensive, often sexually explicit verbal and physical harassment for months because the supervisor perceived his behavior was effeminate and did not conform to the supervisor’s  idea of how a man should act.

Likewise, the EEOC and courts also have continued to recognize sexual harassment claims based on harassing conduct inflicted by a party of the same sex as the victim plaintiff.   For instance, last year the EEOC announced  that Wells Fargo Bank, N.A. agreed to pay $290,000 to four female bank tellers and take other corrective action to settle an EEOC sexual harassment lawsuit where the EEOC charged that a female manager and another female bank teller at a Wells Fargo branch in Reno, Nevada sexually harassed the women by making graphic sexual comments, gestures and images; inappropriate touching, and making suggestions to wear sexually provocative clothing to attract customers and to advance in the workplace, which the Wells Fargo allegedly failed to act quickly to stop despite complaints about the conduct from the victims.

In addition, government contractors and other U.S. employers also generally need to review and update heir employment, employee benefit plans, leave policies and other practices to ensure that they are up to date and defensible in light of the ongoing series of new rules affording new protections for LGBT workers issued by the Obama Administration in the aftermath of the Supreme Court’s ruling of the Defense of Marriage Act unconstitutional in Windsor. In the aftermath of Windsor, the Departments of Labor, Veterans Affairs, Treasury, Justice, Homeland Security and other federal agencies modified immigration, family and military leave, employee benefits, and a host of other rules to require both public and private employers and their employee benefit plans afford marriage-equivalent treatment workers involved in certain same-sex relationships as well as to extend other LGBT employment and other protections. As a result of these and other expansions in the legal protections of LGBT individuals by the Obama Administration like the Executive Order and these other regulatory and enforcement changes, as well as evolving precedent in the wake of the Windsor decision, all U.S. employers should prepare to meet new legal requirements, as well as rising expectations by members of the LGBT community about their workplace, employee benefits and other rights.

In anticipation of these rising requirements and expectations all employers including government contractors should engage legal counsel for assistance in reviewing and updating their policies and practices to comply with the evolving federal and state rules on workplace and other rights of LGBT individuals and strategies for appropriately managing the legal risks and other concerns associated with these emerging entitlements and expectations. For government contractors and other employers concerns about discrimination exposures, this discussion generally should include consideration about whether in addition updating written policies and procedures, the employer should consider workforce training, communications or other actions to promote workforce compliance with the new policies, minimize the risk that the failure to retrain the workforce might make it easier for potential plaintiffs to use events or policies occurring before the new rules became effective to help bolster post-effective date discrimination claims, and other risk management and compliance procedures.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns. As a part of these activities, Ms. Stamer is scheduled to speak about Same-Sex Marriages and Domestic Partnerships: Lessons Learned, Unanswered Questions and Best Practices on May 1, 2015 for the ABA RPTE Section 2015 Spring Symposium in Washington D.C.  See also Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

About Solutions Law Press

Solutions Law Pressâ„¢ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.


State Exchange Problems Present ACA Concerns That Exist Beyond King v. Burwell

March 3, 2015

While most Americans are familiar with the well-publicized issues and higher than projected premium costs of coverage offered to Americans enrolling in health care coverage through the federal healthcare marketplace Healthcare.gov created under the health care reforms of the Patient Protection & Affordable Care Act (ACA), many Americans are just beginning to recognize the growing problems and concerns emerging with state exchanges in those states that elected to enact their own exchange.  As the Supreme Court prepares to hear arguments in the challenge to the payment of ACA subsidies to individuals in states that elected not to adopt a state-run health care exchange to pay for coverage purchased through the federal healthcare.gov marketplace in King v. Burwell on Wednesday, March 4, 2015, the growing evidence of rapidly emerging funding and other challenges affecting state-run exchanges raise concerns about the solvency and reliability of coverage promised and purchased through those state-run exchanges.

During the Congressional debates leading up to the enactment of ACA, for instance, ACA advocates touted the Massachusetts health care mandates and reform law of Massachusetts as part of the model for ACA and evidence of the potential benefits offered by enactment of ACA.  Now Massachusetts officials are blaming ACA for serious underfunding and other problems in their state’s health care connector.

Massachusetts Governor Charlie Baker recently cited the Health Connector and its challenges in enrolling Massachusetts residents in health insurance plans as part of the Affordable Care Act that forced the state to temporarily transition hundreds of thousands of state residents into the commonwealth’s Medicaid program as a primary reason for the state’s projected $1.5 billion budget deficit.  He now has asked for the resignations of four Massachusetts Health Connector board members:  MIT professor Jonathan Gruber,  Covered California actuarial consultant John Bertko; Massachusetts Nonprofit Network CEO Rick Jakious and Spring Insurance Group CEO George Conser.

The Massachusetts experience is not unique.  Other states also are experiencing significant funding and other problems dealing with the ACA mandates and implementation.  See, e.g.,  Funding Woes Imperil Future of State Run Exchanges;  State Insurance Exchanges Face Challenges In Offering Standardized Choices Alongside Innovative Value-Based Insurance.

This mounting evidence of serious cost, financing and other concerns in state-run exchanges creates new reason for concern about the future of ACA’s health care reforms even for those citizens of states whose eligibility for subsidies is not challenged by the King v. Burwell Supreme Court challenge.  These and other budget overruns and operational challenges raise serious questions about the ability of the federal government or the states to fund the promises currently made by ACA in its present form.  Congress and state governments almost certainly will be forced to deal with these broader challenges regardless of the outcome of King v. Burwell.   As American leaders continue to struggle to deal with these and other mounting problems impacting the U.S. health care system, the input of individual Americans and businesses and community leaders is more critical than ever.  Get involved in helping to shape improvements and solutions to the U.S. health care system and the Americans it cares for by sharing your ideas and input through the Coalition For Responsible Health Care Policy  and exchanging information and ideas for helping American families deal with their family member’s illnesses, disabilities and other healthcare challenges through Project COPE: Coalition for Patient Empowerment here.

About Project COPE: The Coalition On Patient Empowerment &  Coalition on Responsible Health Policy

Do you have ideas or experiences to share about medical debit, ACA or other health care challenges?  Have ideas for helping improve ACA and other health care policies impacting the US health care system, helping Americans cope with these and other health care challenges or other health care matters? Know other helpful resources or experiences that you are willing to share?  Are you concerned about health care coverage or other health care and disability issues or policy concerns?  Join the discussion and share your input by joining Project COPE: Coalition for Patient Empowerment here.

Sharing and promoting the use of practical practices, tools, information and ideas that patients and their families, health care providers, employers, health plans, communities and policymakers can share and offer to help patients, their families and others in their care communities to understand and work together to better help the patients, their family and their professional and private care community plan for and manage these  needs is the purpose of

The Coalition and its Project COPE arise and operate on the belief that health care reform and policy must be patient focused, patient centric and patient empowering.  The best opportunity to improve access to quality, affordable health care for all Americans is for every American, and every employer, insurer, and community organization to seize the opportunity to be good Samaritans.  The government, health care providers, insurers and community organizations can help by providing education and resources to make understanding and dealing with the realities of illness, disability or aging easier for a patient and their family, the affected employers and others. At the end of the day, however, caring for people requires the human touch.  Americans can best improve health care by not waiting for someone else to step up:  Step up and help bridge the gap when you or your organization can. Speak up to help communicate and facilitate when you can.  Building health care neighborhoods filled with good neighbors throughout the community is the key.

The outcome of this latest health care reform push is only a small part of a continuing process.  Whether or not the Affordable Care Act makes financing care better or worse, the same challenges exist.  The real meaning of the enacted reforms will be determined largely by the shaping and implementation of regulations and enforcement actions which generally are conducted outside the public eye.  Americans individually and collectively clearly should monitor and continue to provide input through this critical time to help shape constructive rather than obstructive policy. Regardless of how the policy ultimately evolves, however, Americans, American businesses, and American communities still will need to roll up their sleeves and work to deal with the realities of dealing with ill, aging and disabled people and their families.  While the reimbursement and coverage map will change and new government mandates will confine providers, payers and patients, the practical needs and challenges of patients and families will be the same and confusion about the new configuration will create new challenges as patients, providers and payers work through the changes.

We also encourage you and others to help develop real meaningful improvements by joining Project COPE: Coalition for Patient Empowerment here by sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policy provides a resource that concerned Americans can use to share, monitor and discuss the Health Care Reform law and other health care, insurance and related laws, regulations, policies and practices and options for promoting access to quality, affordable healthcare through the design, administration and enforcement of these regulations.

You also may be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here such as:

 You also can find out about how you can arrange for training for you, your employees or other communities to participate in training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a Fellow in the American College of Employee Benefit Counsel, ABA, and State Bar of Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health plans and insurers about ACA, and a wide range of other plan design, administration, data security and privacy and other compliance risk management policies.  Ms. Stamer also regularly represents clients and works with Congress and state legislatures, EBSA, IRS, EEOC, OCR and other HHS agencies, state insurance and other regulators, and others.   She also publishes and speaks extensively on health and other employee benefit plan and insurance, staffing and human resources, compensation and benefits, technology, public policy, privacy, regulatory and public policy and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. For important information about this communication click here

NOTE:  This article is provided for educational purposes.  It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization.  Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances.

The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations.  The Regulations now require that either we (1) include the following disclaimer in most written Federal tax correspondence or (2) undertake significant due diligence that we have not performed (but can perform on request).

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 

EEOC Charges Employer Violated ADA By Terminating Employment At FMLA Leave End

March 2, 2015

Employers considering terminating the employment of employees not ready to resume their usual duties when their eligibility for medical leave ends under the Family & Medical Leave Act (FMLA) or other leave policies should first consider whether the employee qualifies for accommodation under the Americans With Disabilities Act.  That’s the message transmitted by a new Employment Opportunity Commission (EEOC) Americans With Disabilities Act (ADA) lawsuit against ValleyLife of Phoenix, Arizona.

In EEOC v. ValleyLife, the EEOC charges that ValleyLife engaged in illegal disability discrimination in violation of the ADA when it allegedly fired employees with disabilities instead of providing them with reasonable accommodations when their eligibility for family leave ended under the FMLA and allegedly failed to keep employees’ medical records confidential.  See EEOC v. ValleyLife, Civil Action No. 2:15-cv-00340-GMS (N.Az).

According to the lawsuit, ValleyLife fired employees with disabilities rather than provide them with reasonable accommodations due to its inflexible leave policy.  The policy compelled the termination of employees who had exhausted their paid time off and/or any unpaid leave to which they were eligible under the FMLA.   In its complaint, for instance, the EEOC alleges that ValleyLife fired supervisor, Glenn Stephens, due to his need for further surgery when his FMLA leave was exhausted.  EEOC claims this termination violated the ADA because ValleyLife did not engage in any interactive process to determine whether any accommodations (including additional leave) were possible.  Stephens had worked for ValleyLife for over ten years at the time of his termination.  The EEOC contends that ValleyLife’s failure to offer extended leave or other accommodation to Stephens when his leave eligibility ended violated the ADA, which protects workers from discrimination based upon disability and requires employers to provide reasonable accommodations to the known physical or mental impairments of disabled employees unless doing so would cause an undue hardship.

The suit also alleges that ValleyLife commingled medical records in employee personnel files and failed to maintain these medical records confidential in violation of the medical record confidentiality requirements of the ADA, which requires employees’ to keep medical documents confidential and separate from other personnel records.

The lawsuit seeks lost wages and compensa­tory and punitive damages for the alleged victims, as well as appropriate injunctive relief to prevent discriminatory practices in the future.

Prepare Employment Discrimination Defenses

The EEOC suit against ValleyLife sends a message to employers of the need to use care to monitor and manage ADA and other disability discrimination risks at the end of a FMLA or other medical leave.  Employers assume at their own peril that their responsibility to an employee ends when an employee is unable to or fails to return to work following a FMLA or other medical leave.  Instead, the employer should evaluate whether the affected employee qualifies as disabled under the ADA and if so, whether the employer has any responsibility to offer the employee an extended leave or other accommodations before terminating the employee.

Employers also should consider reviewing and updating their current FMLA and other leave policies and communications to incorporate appropriate accommodation offer and administration procedures and notices, as well as other processes to ensure that these practices are operationalized in a manner to create and keep appropriate documentation to defend staffing decisions against potential claims of illegal discrimination under the ADA, Civil Rights, or other laws that could trigger ADA or other discrimination charges.  Employers should keep in mind that an evidentiary doctrine known as the “after acquired evidence rule” makes it important to properly document analysis and decision-making before an employment action is taken to help ensure that critical evidence of employer intention necessary to defend discrimination claims will not be excluded or compromised in the event of litigation.

For Advice, Training & Other Resources

Should your business need legal advice about the taxability of or other requirements on tips, gratuities or other compensation,  assistance assessing or resolving potential past or existing compliance exposures, or monitoring and responding to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, an ABA Joint Committee On Employee Benefits Council representative, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a Fellow in the American College of Employee Benefit Counsel, ABA, and State Bar of Texas, Ms. Stamer has more than 25 years’ experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health plans and insurers about ACA, and a wide range of other plan design, administration, data security and privacy and other compliance risk management policies.  Ms. Stamer also regularly represents clients and works with Congress and state legislatures, EBSA, IRS, EEOC, OCR and other HHS agencies, state insurance and other regulators, and others.   She also publishes and speaks extensively on health and other employee benefit plan and insurance, staffing and human resources, compensation and benefits, technology, public policy, privacy, regulatory and public policy and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to receive these and other updates here.  Recent examples of these updates include:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. For important information about this communication click here

NOTE:  This article is provided for educational purposes.  It is does not establish any attorney-client relationship nor provide or serve as a substitute for legal advice to any individual or organization.  Readers must engage properly qualified legal counsel to secure legal advice about the rules discussed in light of specific circumstances.

The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations.  The Regulations now require that either we (1) include the following disclaimer in most written Federal tax correspondence or (2) undertake significant due diligence that we have not performed (but can perform on request).

ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, or (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

 


3/6 ABA Study Group Conference Call Explores ACA Employer Compliance Challenges Hot Topics

February 23, 2015

Solutions Law Press, Inc. publisher/author Cynthia Marcotte Stamer and Society of Professional Benefits Administrators Director of Public Relations & Legal Affairs Elizabeth Ysla Leight will lead a conference call discussion of Hot Topics In Employer Requirements of the Patient Protection & Affordable Care Act (ACA)   for the Welfare Benefits Plans Committee of the American Bar Association (ABA) Real Property, Trusts & Estates Section Employee Benefit Plans and Other Compensation Arrangements Group (Group) on Friday, March 6, 2015 at 1 PM (Eastern)Noon (Central), 11 AM (Mountain), and 10 AM (Pacific).   Conducted as part of a regular series of “Study Group” style conference calls hosted by the Group, participation in the conference call is available at no charge to ABA RPTE members as part of their ABA RPTE membership.

As health care reform continues to unfold, join the Welfare Benefits Committee to examine the requirements imposed on employers by ACA. With a myriad of ever-evolving technical changes in the requirements, their interpretation and deadlines, there is no shortage of compliance challenges or  and ideas for amendments for welfare benefit plan documents and practices. This will be a round-robin hot topics session that will cover as many topics as time will allow.

Expected topics for discussion include:

  • What is on your short list of “Hot Topics”?
  •  ACA litigation, including King v Burwell
  • Self-reporting ACA violations
  • Other topics, including cafeteria plan elections, etc.
  • “Employer “play-or-pay” mandate
  • Employer reporting on the B and C Forms
  • Employee/Independent Contractor Classification Issues
  • More

Welfare Benefits Committee Co-Chairs Ms. Stamer and Ms. Leight, will lead the conference call discussion.  Both are nationally known for their extensive experience and involvement with ACA and other health plan matters.

As the Director of Public and Legal Affairs for the SPBA, Ms. Leight plays a lead role in helping the SPBA’s member third party administration service providers monitor, shape and respond to the ever-shifting federal and state regulatory environment and develop strategies and knowledge to help employer and other health plan sponsors design and administer legally compliant health and other welfare benefit plan strategies.  In addition to her leadership in the Committee, Ms. Leight also serves on the US Department of Labor ERISA Advisory Council on Employee Welfare and Pension Benefit Plans, which provides advice on policies and regulations affecting employee benefit plans governed by ERISA.

Past Chair of the Group, Ms. Stamer  is nationally and internationally known for her innovative leadership and work helping employers, insurers, TPAs, governments, and communities on health benefit and reform and other labor and employment, employee benefits and workforce related challenges.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   She not only is extensively involved in health, pension and workforce policy and regulation reform, she also helps employers, insurers, administrators and other benefit and human resources services providers and others design, implement, administer and defend innovative, pragmatic health and other employee benefit programs, products and practices.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally.  A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA,HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.

For information about joining the conference call or other details about joining the ABA and participating in the RPTE Welfare Benefit Committee or other activities, see the Welfare Committee Webpage.

 

 


Tell Congress to protect wellness programs against EEOC attacks

January 28, 2015

The EEOC has declared war on many employer sponsored wellness programs. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing about how to improve employer wellness programs on Thursday, January 29. Employers and others should urge the Committee and other Congressional leaders to overrule the EEOC’s attacks on wellness programs as illegal disability discrimination under the Americans with Disabilities Act.


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