U.S. employers should reassess their existing policies on workplace drug use and testing and disability accommodation decision-making for Federal Drug Administration (“FDA”)-approved and state licensed medical use of marijuana in response to Drug Enforcement Agency (“DEA”) rescheduling orders under the Controlled Substances Act (“CSA”) implemented last April while closely monitoring for DEA action on a DEA proposal to reclassify marijuana from a Schedule I to a Schedule III substance under the CSA. The proposed marijuana rescheduling would significantly affect the consequences of marijuana use by individuals in the United States, including the testing and consequences of marijuana use under Department of Transportation (“DOT”) and other federal drug testing mandates.
Where the Rescheduling Stands Today
The recently completed ALJ hearing traces back to a Notice of Proposed Rulemaking published May 21, 2024, proposing to move marijuana from Schedule I to Schedule III of the CSA. After more than a year of procedural DEA delay holding hearings or taking other material action on the proposed rule, President Trump’s December 18, 2025 executive order directed the Attorney General to expedite completion of the rulemaking. In response, on April 23–24, 2026, Acting Attorney General Todd Blanche issued a final order that:
immediately moved FDA-approved marijuana drug products into Schedule III;
immediately moved marijuana subject to a qualifying state medical marijuana license into Schedule III; and
That broader hearing opened June 29, 2026 at DEA headquarters in Arlington, Virginia, before Chief ALJ Derek C. Julius, ran (with a recess for the July 4th holiday period) through mid-July, and formally concluded on July 15, 2026 following closing presentations from a group of participating states. See DEA press release; Notice of Hearing, 91 Fed. Reg. 22777 (Apr. 28, 2026). Because DEA and DOJ are the proponents of the rule, the hearing’s structure permitted testimony only from designated participants opposing rescheduling — including Smart Approaches to Marijuana (SAM), the National Drug & Alcohol Screening Association, and the States of Nebraska, Idaho, Indiana, Louisiana, and Tennessee (through its Bureau of Investigation), among others. Pro-reform organizations including NORML sought and were denied participant status. ALJ Julius also ordered that the hearing would not be televised, livestreamed, or otherwise broadcast, limiting observation to in-person attendance.
As if this ambiguity isn’t enough, the Acting Attorney General’s April 2026 final order reclassifying to Schedule III FDA-approved and state licensed marijuana now faces legal challenges such as the one brought by Smart Approaches to Marijuana and the National Drug & Alcohol Screening Association, seeSAM Inc., et al. v. U.S. Department of Justice, et al., No. 26-1106 (D.C. Cir., petition filed May 4, 2026), and another brought by the Attorneys General of Indiana and Nebraska, seeNebraska, et al. v. U.S. Department of Justice, et al., No. 26-1130 (D.C. Cir., petition filed May 22, 2026). While the fate of these consolidated challenges awaits resolution by the U.S. Court of Appeals for the D.C. Circuit, employers and health plans must deal with the currently effective policy change that, for now, has made a Schedule I drug FDAA-approved medical and state-licensed marijuana.
Pending the resolution of challenges to the currently effective change of FDA-approved medical and state licensed marijuana and DEA action on its broader rescheduling proposal, however, employers and plan sponsors should review their existing marijuana use and testing policies for the already effective FDA approval of FDA-approved marijuana drug products and marijuana subject to a qualifying state medical marijuana license that took effect under the final rescheduling orders issued by Acting Attorney General Todd Blanche on April 23–24, while continuing to monitor the Federal Register and other FDA and Congressional comments and actions signaling when and the likely direction the FDA intends to take on the broader proposal to reschedule marijuana generally from Schedule I to Schedule III.
What Already Changed — Independent of the Proposed DEA Rescheduling Rule Change
It is important for compliance purposes to separate what is already final from what remains pending:
Already in effect (April 2026 Final Order)
FDA-approved marijuana-containing drug products are in Schedule III.
Marijuana handled under a qualifying state medical marijuana license is in Schedule III, with a new expedited DEA registration pathway for state licensees.
State-licensed medical marijuana businesses are relieved of the Internal Revenue Code § 280E deduction disallowance, which applies only to Schedule I and II trafficking.
Recreational/adult-use marijuana, unlicensed marijuana, and synthetically derived THC remain in Schedule I and are unaffected by the April order.
Still pending (record closed; awaiting ALJ recommendation and DEA final decision)
Whether marijuana as a category — including adult-use/recreational marijuana not tied to an FDA-approved product or state medical license — moves to Schedule III.
The government has been explicit throughout that this proceeding is not about legalizing recreational use; it concerns whether marijuana has a “currently accepted medical use” sufficient to satisfy the CSA’s scheduling criteria.
Post-hearing briefs are due August 17, 2026; the ALJ’s recommendation and DEA’s final decision will follow on an unannounced timeline.
Why This Matters for Employers — and Why It Doesn’t Change as Much as Headlines Suggest
A move from Schedule I to Schedule III would be historically significant, but it would not legalize recreational marijuana use, and it would not, by itself, require employers to change drug-free workplace policies. Marijuana would remain a controlled substance requiring a valid prescription for lawful use under federal law; unauthorized possession or use would remain a federal offense. HR and employment counsel should calibrate client and internal expectations accordingly while continuing to monitor the following areas:
Drug testing and drug-free workplace policies
The scheduling change could impact your current workplace drug use and drug testing policies by expanding legally permitted use and requiring the collection of added documentation for those claiming permitted use. Employers, insurers and others concerned about impairment by workers consuming marijuana in accordance with its new scheduling will need to consider the need for and advisability of adopting policies tailored to their concerns and ensuring their testing and other administrative practices meet applicable legal requirements.
For purposes of this analysis, the changes adopted last April can make medicinal use in accordance with FDA-approved or state-licensed uses legal in the applicable workplace jurisdiction. However, the proposed schedule III classification would not convert a positive marijuana test into evidence of lawful drug use in the ordinary case, since off-label recreational use would remain unauthorized under federal law absent a valid prescription.
Employers should nonetheless review testing panels, medical review officer (MRO) protocols, and policy language for currency, and confirm policies still align with applicable state law, which increasingly diverges from federal scheduling on off-duty use protections.
DOT and other safety-sensitive/federally regulated testing
The recently adopted and additional proposed rescheduling of marijuana to a Schedule III classification are unlikely to change U.S. Department of Transportation drug testing requirements, as its 49 C.F.R. Part 40 rules operate independently of CSA scheduling. DOT has previously confirmed that rescheduling marijuana would not, by itself, change safety-sensitive testing requirements. Employers with DOT-covered or other federally regulated safety-sensitive positions should watch for any DOT or agency-specific guidance issued in response to a final rescheduling decision. Nevertheless, the rescheduling likely foreseeably could encourage even broader unauthorized use by employees or others reading the rescheduling as eliminating prohibitions, reflecting a further decline in enforcement, or both.
ADA and disability-related considerations
The recent DEA rescheduling of FDA-approved use of medicinal marijuana to a Schedule I drug classification will expand legally available options for medicinal marijuana use by employees in accordance with appropriately prescribed and used medicinal marijuana. Also, forty states now authorize medical marijuana under state law, many with employment protections for off-duty medical use that already operate independently of federal scheduling. Federal rescheduling will not harmonize this patchwork, and multistate employers should continue maintaining state-by-state policy matrices rather than assuming a federal fix is coming.
These changes can create new Americans with Disabilities Act (“ADA”) implijcations by, among other things:
Requiring employers to consider requests for accommodation of medically prescribed marijuana by broadening the availability and medicinal use of FDA-approved and state-licensed medicinal marijuana. Rescheduling does not change the ADA’s treatment of current illegal drug use as outside the definition of a protected disability while such use continues.
Requiring employers to consider the convergence between ADA’s mental/psychological impairment prong and MHPAEA parity classification issues when designing substance use disorder treatment benefits — a distinct analysis from current-use accommodation questions, and one worth continuing to track alongside this rulemaking.
Health and welfare plan sponsors and fiduciaries
The reclassification of FDA-approved medicinal marijuana also can create new design questions for health and disability benefit plan sponsors and claims and appeals health challenges for health and disability plan fiduciaries. For instance,
Health, AD&D, disability, life and other benefit plan sponsors and fiduciaries should recognize that the rescheduling adopted last April expands the legally allowed prescription and use of marijuana.
While Schedule III status does not itself create a coverage mandate, the approval could affect how FDA-approved uses are treated by removing exclusions or rules that previously denied coverage based on their more restricted DEA Schedule III status. While formulary and coverage decisions for any FDA-approved cannabinoid product remain a plan design and medical-necessity determination for the plan sponsor and its PBM or other fiduciaries, previously relied upon exclusions may no longer operate in the same way to restrict coverage.
Plan sponsors, their prescription benefit managers, insurers and other service providers should reevaluate current formularies and coverage provisions and exclusions for MHPAEA and other implications. They also should watch the FDA approval pipeline for cannabinoid drug products for potential formulary impact, should evaluate the need for changes in coverage or benefit exclusions and added fiduciary or other risks relating to benefit coverage and limitations potentially impacted by marijuana use. Health, disability, accident and dismemberment, and life insurance plan fiduciaries and insurers should use care to consider prudently the potential implications of rescheduling on any claims or appeals including special concerns and considerations likely to arise with respect to health benefits impacted byh MHPAEA. Fiduciaries should use care to coordinate any MHPAEA comparative analysis work touching substance use disorder benefits with counsel already tracking that parity exposure.
Cannabis-industry and cannabis-adjacent employers
State-licensed medical marijuana operators already qualify for § 280E relief under the April 2026 order; HR and finance functions at these employers should confirm payroll tax treatment reflects the change and monitor the expedited DEA registration pathway for state licensees.
Recommended Action Items
For HR and Employment Counsel
Review (but do not overhaul) drug-testing and drug-free workplace policies now; hold substantive revisions pending a final DEA decision, which — with post-hearing briefs not even due until August 17 — remains months away at minimum.
Confirm state-law policy variations are current, independent of the federal rescheduling timeline.
Flag DOT-covered positions for a separate compliance check once DOT issues any post-rulemaking guidance.
For Health, AD&D, Disability and & Other Welfare Plan Sponsors and Fiduciaries
Task PBM and plan counsel with monitoring FDA’s cannabinoid drug approval pipeline for formulary implications.
Coordinate substance use disorder benefit design review with pending MHPAEA comparative analysis obligations.
For General Counsel and Risk Management
Track the consolidated D.C. Circuit challenges to the April 2026 Final Order alongside the ALJ’s post-hearing process; a reversal on appeal could unwind the medical/state-licensed rescheduling already in effect.
Maintain rescheduling-tracking analysis as privileged work product where prepared to inform litigation or enforcement-risk posture.
For State-Licensed Medical Marijuana Employers
Confirm § 280E tax treatment has been updated and pursue the expedited DEA registration pathway using existing state licensure as supporting evidence.
Stay Tuned and Share Your Input
While the DEA’s proposed rescheduling is a self-initiated proposal, the ALJ’s post-hearing recommendation and what action, if any, the DEA ultimately will take on its proposal to reschedule marijuana more broadly remain uncertain. Although the DEA hearing on the proposed ruling is complete, communications to the DEA and Congress still offer opportunities to influence the direction and outcome of these decisions. Concerned employers and others should consider communicating any input or concerns to the DEA and Congress promptly to ensure their input receives consideration. Meanwhile, employers, health and disability plans and other interested parties should reevaluate their policies in response to the already adopted rescheduling as they monitor for future developments.
For Help or More Information
The author of this update, Cynthia Marcotte Stamer is an attorney Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization with decades of experience advising and assisting health industry and other employers to design, audit, and defend their employment and other risk management and compliance practices, including conducting audits and investigations, designing and updating compliance and risk management programs, responding to government investigations, conducting transaction, governance, and other due diligence, and assisting with other legal and operational compliance and risk management and legislative and regulatory affairs. She is available to assist your organization in assessing the impact of these developments and navigating the compliance and strategic steps that follow. For more information about these concerns or Ms. Stamer, contact Ms. Stamer via e-mail or via telephone at (214) 452 -8297.
About the Author
Cynthia Marcotte Stamer is an American College of Employee Benefits Counsel and a Martindale-Hubble “AV-Preeminent” (Top 1%) attorney and advisor board certified in labor and employment law by the Texas Board of Legal Specialization peer peer celebrated as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in ERISA & Employee Benefits Law, Health Care Law, Labor and Employment Law, and Business and Commercial Law.
Nationally recognized for her decades of leading-edge workforce, health and other employee benefits and insurance, compensation, regulatory affairs and compliance, and other management work, public policy leadership and advocacy, coaching, teachings, and publications, she is the publisher of Solutions Law Press, Inc.® practitioner-focused compliance publications for employers, plan sponsors, HR professionals, health care, insurance, technology and data industry leaders, and legal counsel and risk management advisors.
Along with these activities, Ms. Stamer also has earned national recognition for her authorship of thousands of highly regarded works, presentations as a knowledgeable speaker, testimony and other input of regulators and legislators, and media interviews on health and other benefits, human resources and other workforce, health care, insurance, data privacy and security and other related concerns.
For more information about Ms. Stamer, engaging her services or to speak, her work, credentials, experience and involvements, or other matters, see the About the Author page, her website at www.cynthiastamer.com, or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
Employers that adopted or are evaluating mandatory vaccination, testing, or other health-and-safety conditions of employment should take note of the implications of the Supreme Court’s June 1, 2026 decision to deny certification of a Ninth Circuit ruling that narrows the federal claims workers can bring to challenge vaccination requirements.
Because a denial of certiorari is not a ruling on the merits and sets no nationwide precedent, the practical effect is limited but meaningful: within the Ninth Circuit, the appellate decision stands as controlling authority foreclosing the federal theories the workers advanced. The decision is a useful roadmap of the federal claims that do not lie against employers and government officials who impose vaccination requirements—and, by contrast, a reminder of the claims that may still remain available under other laws.
Background
On August 20, 2021, then-Governor Jay Inslee issued Proclamation 21-14, which, absent an approved exemption, required covered Washington health care workers to be vaccinated against COVID-19. The nonprofit health care system PeaceHealth adopted a corresponding policy, and it terminated employees who refused to comply. Aila Curtis and more than 80 other former at-will employees sued PeaceHealth and the Governor for damages, asserting a wide range of statutory, treaty, regulatory, contractual, and constitutional theories. As the Ninth Circuit summarized, the plaintiffs contended the only vaccine available before the deadline was an “investigational” product authorized only for emergency use, and that they were not adequately informed of an option to refuse it. The U.S. District Court for the Western District of Washington dismissed all claims, and the Ninth Circuit affirmed. See Curtis v. Inslee, No. 24-1869 (9th Cir. Oct. 6, 2025).
No Federal Statutory or “Informed Consent” Right Enforceable Under Section 1983
The court first held that none of the plaintiffs’ statutory and non-constitutional sources created a “specific and definite” right enforceable through 42 U.S.C. § 1983. Central to the workers’ case was the “right to refuse” theory premised on the emergency use authorization provision of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3, which directs that recipients of an emergency-use product be informed of “the option to accept or refuse administration.” The Ninth Circuit explained that Congress confined enforcement of the Act to public actions brought in the name of the United States under 21 U.S.C. § 337(a), and that courts may not judicially create an implied private right of action. The statute therefore confers no privately enforceable right under Section 1983.
The court rejected the remaining non-constitutional sources on the same rationale—none supplied rights-creating language enforceable by these plaintiffs:
The Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d-6, which at most imposes an educational obligation on a federal agency rather than on the employer or the State;
10 U.S.C. § 980 (restricting use of Department of Defense funds for human-subject research), a spending-power provision “especially unlikely” to confer an enforceable right;
Article VII of the International Covenant on Civil and Political Rights, which the United States ratified as non-self-executing and which Congress has not implemented;
45 C.F.R. Part 46 (the “Common Rule” on human-subjects research), the Belmont Report, the Federal Wide Assurance agreement, the CDC COVID-19 Vaccination Program Provider Agreement, and the FDA Emergency Use Authorization letters—none of which create privately enforceable rights, and none of which make these employees third-party beneficiaries. As the court observed, the plaintiffs were “vaccine refusers” rather than the “vaccine recipients” who might benefit from such agreements.
Constitutional Claims Foreclosed by Longstanding Vaccination Precedent
Turning to the constitutional theories, the court held that neither the Spending Clause nor the Supremacy Clause supplied a freestanding Section 1983 right. It then rejected the Fourteenth Amendment claims:
Procedural due process. The plaintiffs’ at-will employment was not a constitutionally protected property interest, and the proclamation’s notice and individualized religious and medical exemption process supplied any process due.
Equal protection. Because the workers did not constitute a suspect class, the mandate needed only survive rational-basis review—which it readily did. The court invoked the Supreme Court’s recognition of the public-health rationale for health care worker vaccination requirements in Biden v. Missouri, 595 U.S. 87 (2022).
State-Law Claims Were Left for the State Courts
Employers should not read the decision as resolving every claim. The Ninth Circuit affirmed dismissal of the state-law claims against the Governor, but it upheld the district court’s discretionary decision to decline supplemental jurisdiction over the remaining state-law contract and tort claims against PeaceHealth under 28 U.S.C. § 1367(c). The court expressly did not decide whether those state-law claims state a claim; it left the merits to the Washington state courts. The federal ruling thus disposes of the federal theories without insulating employers from potential state-law exposure.
What the Cert Denial Does—and Does Not—Mean for Employers
While the Supreme Court’s refusal to review the Ninth Circuit decision in Curtis v. Islee decision for now leaves in place that Court’s ruling that employees don’t havec a federal statutory or informed consent right to challenge vaccination requirements under Section 1983, employers also should keep in mind that these rulings do not mean that vaccination or other health-and-safety mandates are immune from challenge. Rather, Curtis and the now-final disposition confirm that the most commonly asserted federal theories—an implied “right to refuse” under the EUA statute, the PREP Act, and substantive due process—generally do not provide workers a damages remedy against employers or officials for vaccination requirements, at least in the Ninth Circuit. Employers nonetheless should keep the following in mind:
Future Supreme Court Decision Could Reach a Different Conclusion. Employers should keep in mind that the Supreme Court’s current decision denying certification does not guarantee it will not take up another case in the future that could reject or qualify the precedent set by the Ninth Circuit. In addition to the continued need to manage these and other potential exposures arising from the establishment and enforcement of vaccination requirements on non-Section 1983 grounds, employers also should use care to avoid engaging in conduct that could create facts that employees might rely upon to charge their employer with retaliation for the employee’s good faith exercise of rights that the employee believed she or he possessed.
Other laws still apply. This decision addresses Section 1983, constitutional, and EUA-based theories. It does not displace obligations or exposure under Title VII religious-accommodation and the Americans With Disabilities Act disability-accommodation requirements, the Family and Medical Leave Act and state and local leave laws, state and local civil rights and other laws, or collective bargaining or other contractual requirements. Mandate-related litigation increasingly proceeds on accommodation and contract theories rather than the theories rejected here.
Document the exemption and accommodation process. The court emphasized that the proclamation provided notice and an “individualized” religious and medical exemption process. Employers that maintain clear notice, a documented individualized interactive process, and consistent administration are better positioned to defend both constitutional and accommodation challenges.
Mind jurisdictional differences. A denial of certiorari leaves circuit law in place without creating a uniform national rule. Multistate employers should confirm how the controlling circuit and applicable state law treat these theories before relying on any single decision.
Preserve the public-health record. Rational-basis review turns on what decisionmakers could rationally conclude. Employers adopting health-and-safety requirements should document the legitimate business and safety rationale supporting the requirement at the time it is adopted.
Considering these and other risks, employers using or responding to challenges to employee or service provider vaccination requirements should seek assistance of experience legal counsel in designing and administering those policies to minimize discrimination and retaliation liability risks.
For Help or More Information
The author of this update, Cynthia Marcotte Stamer is an attorney Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization with decades of experience advising and assisting health industry and other employers to design, audit, and defend their employment and other risk management and compliance practices, including conducting audits and investigations, designing and updating compliance and risk management programs, responding to government investigations, conducting transaction, governance, and other due diligence, and assisting with other legal and operational compliance and risk management and legislative and regulatory affairs. She is available to assist your organization in assessing the impact of these developments and navigating the compliance and strategic steps that follow. For more information about these concerns or Ms. Stamer, contact Ms. Stamer via e-mail or via telephone at (214) 452 -8297.
About the Author
Cynthia Marcotte Stamer is an American College of Employee Benefits Counsel and a Martindale-Hubble “AV-Preeminent” (Top 1%) attorney and advisor board certified in labor and employment law by the Texas Board of Legal Specialization peer peer celebrated as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in ERISA & Employee Benefits Law, Health Care Law, Labor and Employment Law, and Business and Commercial Law.
Nationally recognised for her decades of leading edge workforce, health and other employee benefits and insurance, compensation, regulatory affairs and compliance, and other human resources and other management work, public policy leadership and advocacy, coaching, teachings, and publications, Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private highly regulated and performance dependent organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As a a key focus of this work, she has continuously and extensively worked with domestic and international health plans, their sponsors, fiduciaries, administrators, and insurers; managed care and insurance organizations on workforce and performance management, employee benefits, compensation, regulatory and operational compliance, and other related concerns.
Her experience includes more than 35 years of leading edge work experience helping health care systems and organizations, group and individual health care providers, government contractors and other performance dependent employers; health plans and insurers, and a broad range of other businesses design and administer workforce, compensation and benefits, compliance and risk management and other practices and policies, and operate and defend organizations and practices to prevent, investigate, manage and resolve performance and behavior; manage civil rights, discrimination and accommodation, and other regulatory, contractual and other compliance responsibilities and risks; vendors and suppliers; conducting and defending investigations, audits, investigations, and other actions; crisis preparedness and response; to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Department of Insurance, Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, trucking, alcohol and firearm, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement; and other strategic and operational concerns.
Former lead advisor to the Government of Bolivia on its Social Security Privatization reform, Ms. Stamer also has extensive international, federal and state legislative and regulatory affairs experience on federal, state and international workforce, employee benefits, healthcare, education, insurance, data privacy and security, antitrust, and other regulations and reforms.
In addition, Ms. Stamer also is widely celebrated for her leadership in the American Bar Association (“ABA”) and a multitude of other policy, professional, civic, educational, community and other organizations. Ms. Stamer currently or previously served as the the American Bar Association (“ABA”) Joint Committee on Employee Benefits (“JCEB”) leadership council, Scribe leading the Department of Health and Human Services annual agency meeting and a representative to other annual agency meetings, speaker, author and faculty; the ABA International Section International Employment Law Committee and International Life Sciences Committee Chair; the ABA Tort Trial and Insurance Practice Section Medicine and Law Committee Chair, SCOPE member, and Employee Benefits and Worker’s Compensation Committees Vice Chair; the ABA Health Law Section Managed Care & Insurance Interest Group Chair and Risk Management Interest Group Vice Chair; the ABA RPTE Employee Benefits & Other Compensation Group Chair and Welfare Benefit, Fiduciary Responsibility, and Plan Terminations and Transactions Committees Chair; the North Texas Health Care Compliance Professionals Association Vice President and Executive Director; a Southwest Benefits Association Board Member, Treasurer and Continuing Education Committee Chair; a SHRM Consultants National and Region IV Board Chair; a WEB National Board Member and Dallas Chapter President; the National Kidney Foundation of North Texas Board Member and Compliance Chair; the Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency Board President; a North Texas United Way Long Range Planning Committee Member; and in many other leadership roles in a broad range of other professional and civic organizations.
Along with these activities, Ms. Stamer also has earned national recognition for her authorship of thousands of highly regarded works, presentations as a knowledgeable speaker, testimony and other input of regulators and legislators, and media interviews on health and other benefits, human resources and other workforce, health care, insurance, data privacy and security and other related concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
Human resources and other business leaders, using or allowing workforce members to CHAT-GPT or other artificial intelligence (“AI”) tools to research, make decisions or to support other activities should ensure that their organizations and their teams understand and manage the resulting evidentiary consequences and responsibilities these activities create.
In today’s AI age, Human Resources directors and other business leaders in increasingly are encouraged to turn to AI tools for a quick understanding of the law, drafting of documents, and a host of other human relations and business functions traditionally performed with the assistance of legal counsel. Although AI tools can be valuable under the right situations and properly used, the use of AI tools, along side of or as a substitute for legal advice obtained within the scope of attorney client privilege can carry a number of inherent risks and challenges. Human Resources and other leaders and their organization should carefully evaluate and manage these consequences before using AI.
AI Searches May Be And Create Evidence
AI prompts, outputs, and related metadata often qualify as discoverable electronically stored information (“ESI”) in litigation, regulatory audits, and enforcement proceedings.
Under the Federal Rules of Civil Procedure, discoverable information includes electronically stored information (ESI”) relevant to claims or defenses. See Fed. R. Civ. P. 26(b)(1); 34(a)(1)(A). Once litigation is reasonably anticipated, organizations must preserve relevant ESI under Federal Rules of Civil Procedure. See e.g.,Hoffer v. Tellone, 128 F.4th 433 (2d Cir. 2025).
AI searches and other interactions and the information and other outputs they produce generally qualify as ESI for purposes of the Federal Rules of Civil Procedure, Federal Rules of Evidence, (hereafter collectively the “Federal Rules”) and comparable federal and state litigation procedural rules.
Likewise, federal and state regulatory and enforcement agencies tend to consider AI and other ESI evidence covered by document retention and discovery rules.
Where applicable, these Federal Rules and agency rules generally include AI and other ESI evidence organizations must preserve, identify, and subject to discovery or other production like traditional evidence in litigation and agency audits and investigations.
ESI evidence generally includes any data stored in electronic form—such as emails, texts, spreadsheets, social media, and Internet of Things (“IoT”) data. As broadly construed by the courts, courts already long have admitted:
Internet search histories;
Internal chats and Slack messages;
Draft documents; and
Deleted files.
AI searches are simply the next evolution of this evidence category. AI records and information considered ESI can include;
AI prompt histories;
Generated outputs;
Embedded AI-assisted drafts;
Platform logs (if accessible); and
Other records.
Organizations that fail to fulfill requirements for AI or other ESI early identification, data authentication and other requirements of Federal Rule of Evidence 902, the requirements of Federal Rule of Civil Procedure 37(e) regarding lost evidence, or other applicable requirements to preserve and produce ESI may result in sanctions, adverse inferences, and penalties under the Federal Rules. Similarly, organizations may incur evidentiary sanctions, regulator penalties, and other adverse consequences for failing to identify, retain and produce ESI from AI or other sources in government audits and investigations. Common sanctions include:
Monetary sanctions;
Evidence preclusion;
Adverse inference jury instructions; and
Other authorized sanctions.
See, e.g., Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730 (9th Cir. 2024) (affirming dismissal as sanction for intentional destruction of ESI); Maziar v. City of Atlanta, No. 1:21-cv-02172, 2024 WL 197561 (N.D. Ga. June 10, 2024) (denying summary judgment and awarding fees based on loss of text messages); McBride v. Moore, No. 2:23-cv-02904, 2024 WL 1136429 (C.D. Cal. Feb. 23, 2024) (denying sanctions where ESI not shown lost or duty not triggered). Gregory v. State of Montana, No. 22-____ (9th Cir. 2024) (reversing sanctions imposed outside Rule 37(e); emphasizing Rule 37(e) as exclusive remedy for ESI spoliation); DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021) (recognizing financial prejudice from spoliation and awarding fees); Bistrian v. Levi, 448 F. Supp. 3d 454 (E.D. Pa. 2020) (Rule 37(e) provides exclusive framework for ESI spoliation); Fast v. GoDaddy.com LLC, 340 F.R.D. 326 (D. Ariz. 2022) (failure to preserve mobile device data warranted sanctions).
These and other related cases alert organizations that AI and other modern data sources are squarely within ESI. Courts treat AI, texts, mobile data, and app-based communications as discoverable ESI.
The precedent reflects that the best opportunity to position your organization to show the reasonability of the actions taken is through the existence and enforcement of policies before and during the use of the AI tool.ESI preservation obligations depend on foreseeability, control, and access to data. When deciding the consequences of the unavailability or failure to produce ESI, the determination regarding failure to take “reasonable steps” is fact-intensive. Of course, the failure to retain the documentation will be particularly likely to be found unreasonable where the party was under a statutory, regulatory, ethical, contractual, or other pre-existing obligation to preserve the evidence.
Also, courts require proof of intent to deprive before imposing the most severe adverse inference or dismissal sanctions, a lack of proof of intent to deprive the request requesting party of evidence does not mean there will not be consequences for the non-producing party. Negligent failure to retain and produce ESI and other evidence still carries consequences. Even without bad faith, courts may impose curative measures, fees, or evidentiary limitations.
Among other things, organizations should be prepared to routine and produce documentation and data obtained, utilized, or otherwise interacting with AI tools and it’s associated meta-data and other components to respond to litigation and regulatory request for a broad range of data and information. Optimally the data captured and retained should include, but it’s not necessarily limited to:
AI usage policies;
Employee and other agent AI interaction records;
Evidence of AI and other relevant governance and training; and
Data protection controls.
Consequently, failure to govern, identify, preserve and produce AI-generated and AI-assisted records appropriately can expose organizations to spoliation sanctions, adverse inference instructions, regulatory penalties, loss of privilege protections, and expanded liability exposure.
In recognition of the possibility that AI tool interactions may give rise to obligations to retain and produce ESI evidence created as a consequence of that interaction, or organization should work with legal counsel to develop an administer appropriate practices to monitor, identify, retain, manage, and where necessary produce this ESI evidence.
AI Tools Create Evidence
Beyond considering and meeting documentation and other evidently protection, preservation, and production responsibilities, organizations and their human resources and other leaders need to recognize that the use of the tool itself and its outputs creates evidence that may give rise to legal opportunities, risks, and obligations for the organization.
Organizations should keep in mind that the use of AI tools creates legal evidently risks because AI tools typically generate synthesized responses (not just links) that often incorporate user inputs into outputs that may reflect user intent, knowledge, biases and opinions, and decision-making. This often makes AI interactions particularly valuable evidence for:
Intent (e.g., “how to terminate employee without legal risk”) Knowledge (awareness of compliance obligations) State of mind (deliberate vs. negligent conduct);
Knowledge (awareness of compliance obligations);
State of mind (intentional, willful, or deliberate vs. negligent conduct)
The potential risks of this and other evidence is heightened by the fact that the evidence created may arise not only from the actions taken by the user of the AI tool, but also may be inherently built into the design of the AI tool itself or the databases or other reference materials that it accesses, not all of which may be transparent to the user or the organization that employs the user. These risks are further heightened when the AI tool use is not conducted internally within the organization by its employee, but rather is a tool utilized by a consultant or other third-party provider conducting activities of a sensitive nature on behalf of the organization, such as a recruiting company, investigation, company, or other service provider.
These unique characteristics of AI make it advisable that organizations recognize and manage potentially heightened exposures that employee or other agent use AI tools can produce for the organization in a wide range of sensitive areas.
Examples of queries that can become “smoking gun” evidence include but are not limited to:
In employment or other workforce administration searches, AI queries such as “How to terminate employee with medical condition,” ‘How to avoid claims when, terminating older, disabled, complaining, injured or other employee with protected status, or the like can be evidence of discriminatory or other adverse intent;” or “How to beat a union organizing campaign;”
Compliance & Regulatory searches such as “How to structure payments to avoid reporting requirements,” “HIPAA penalties for disclosure; searches about compliance or looking for compliance loophole; searches where company researched sanctions for noncompliance in areas involved in litigation or enforcement; or searches on risk management that could be evidence the organization saw but chose not to follow rules or standards or otherwise looked for or acted to circumvent compliance or disregarded interpretations less favorable to chosen challenged course of action;
Litigation or Other Defense Strategy searches or tools such as “How to defeat a whistleblower claim,” “Ways to minimize damages in lawsuit” “Protecting your assets from IRS or in bankruptcy,” “How to conceal” or How to hide” orthe like can harm the organization’s interest by showing adverse intent, willfulness, or other motive or state of mind;
Litigation case law, enforcement, argument drafting, or other actions that could reveal or provide insight on sensitive litigation strategies or their strengths or weaknesses;
Financial & Tax searches such as “Aggressive tax strategies unlikely to be audited,” or “contract terms to reclassify employee to contractor,” “Structure transaction to avoid disclosure” or the like; and
Other searches or tool uses that could reflect improper, intent, or document improper activities, such as how to hide evidence, how to create a bomb, how to poison somebody or that creates a record of conduct such as edits to revise data or documentation in reports or records, where the changes are tracked and retained.
Given these other risks, organizations should carefully consider and manage these and other risks when deciding whether, when, how and what AI tools their organizations allow their people to use, who gets to use what tools, designate and train those authorized to use these tools appropriately, and design and implement appropriate tools to track, capture, retain and manage these records of AI use and their implications. Optimally, the planning should identify and work to manage the creation and preservation of evidence and related AI ESI required or otherwise helpful to meet, applicable, regulatory, contractual, statutory, or other requirements in a manner that minimizes the creation of evidence that could call into question the compliance or other appropriateness of the organizations actors.
Privilege and Confidentiality Risks
Asking AI tools to answer legal questions or provide guidance in legal advice obtained within the scope of attorney. Client privilege also can enhance the exposure for the organization and it’s actors because of the implications of that Youts on the availability of attorney-client privilege for the activities and information obtained. Using AI tools and output also can have implications on the ability of an organization to protect legal advice and work product developed and shared within the scope of attorney privileges from discovery in judicial or regulatory actions. Organizations need to recognize risk to the confidentiality of legal advice or work product that entering sensitive legal questions or information into public AI tools not specifically designed and used outside the scope of the attorney-client relationship to avoid creating problematic evidence, disclosing discussions or work product that otherwise might qualify for protect against discovery in litigation or agency proceedings under the attorney-client privilege or attorney work product rules, or both.
Searches conducted by organization employees, consultants, or other agents or representatives about the law, strategies, or legal risks and consequences without or outside the scope of an attorney-client relationship generally can be discovered and used as evidence. Consequently, organizations should regulate the use by officers, directors, compliance officers, human resources directors, consultants, non-legal investigators and auditors and others of AI tools, internet or other searches to investigate the law or legal strategies independent of or outside the scope of attorney-client privilege.
Particularly risky scenarios include:
In-house counsel, Human Resources, risk management or compliance staff using public AI tools;
Consultants, contractors, and other vendors use of AI in performing tasks or tools;
Embedded AI in software or other tools; or
Uploading contracts, PHI, or proprietary data into AI systems.
Additionally, organizations and others communicating or working with legal counsel on behalf of the organization within the scope of attorney-client privilege to design strategies or investigate or defend actions generally should not use AI tools to conduct their own legal research or analysis without authorization and direction of the legal counsel to avoid forfeiting attorney-client privilege and work product protections.
If the required confidentiality is preserved, the attorney-client privilege and work product privileges rules can protect confidential communications between a client and its attorney and work product prepared for risk management, defense or other purposes of the legal engagement against disclosure in litigation or other proceedings in many circumstances. However these protections are lost if the communication or work product is disclosed to or discussed with third parties outside the attorney-client relationship. Entering factual information, conducting legal searches, or using AI tools outside the attorney-client relationship, not specifically designed to preserve confidentiality, or both to draft or evaluate legal documents, research, drafts, or strategies generally is considered a third party disclosure that can waiver or undermine the privilege for the specific information input to the AI tool as well as potentially related communications or work product.
For these and other reasons, organizations and individuals generally should resist the temptation to use AI tools to evaluate legal strategies, advice or work product.
Trade Secret, HIPAA and Other Data Privacy and Use Exposures
Human Resources and other leaders also must keep in mind their organization’s responsibilities to respect other organizations, intellectual property, to safeguard the confidentiality and security of data, and their organization’s need to protect its own intellectual property.
AI tool enthusiasts promote AI tools as substitutes for legal advice and other paid services. While asking AI to write a “free” policy or contract may seem a great way to save legal or other consulting, licensing or other costs, human resources and other leaders and their organizations must keep in mind that not all data, information and resources obtained through a ChatGPT or other AI search is shareware. Most nongovernmental data bases, contractual firms, tools, templates and other materials accessed through AI searches are or incorporate materials owned or subject to copyrights or other intellectual property protections of third parties. Unlicensed use of these resources can expose their organizations to copyright and other intellectual property infringement liability.
Furthermore, human resources and other executives choosing to use materials drafted using AI tools or otherwise acquired off of the Internet or other sources without legal advice to recognize that acquired materials and resources may not be currently compliant, appropriately tailored to their use, or contain other deficiencies for utilization in their organizations. These deficiencies can arise from a number of sources. For one thing, the queries input by the user may not be sufficiently tailored to adequately represent all of the material considerations necessary to tailor he organizations, questions, and the AI response to the needs of the organization. Also, because AI databases often times include a broad range of historical data, AI responses may rely upon outdated, legal or operational presumptions incorporated into these historical policies when they no longer are appropriate for use in your organization. Additionally, the response of AI may draw from a wide range of sources, including many of which may be sample policies not drafted by qualified individuals with adequate expertise to fully understand the legal and operational implications of the policy and properly draft a policy appropriate for use in the organization, acquiring the form or materials off of the Internet.
Beyond suitability of the information where tool obtained through the AI search itself, unlicensed use of the response, may expose your organization to liability for violating other organizations or authors, intellectual property rights. AI searches can and often do access and incorporate data and other resources protected by third party copyright,trade secrets, HIPAA or other confidentiality, or other safeguards. Accordingly, accessing or using data bases, sample language or forms, or other materials without proper licensing or attribution may trigger liability to individuals and organizations for breaches of these intellectual property rights.
A separate concern arising from the use of AI tools in HR and other business operations to evaluate, formate or otherwise process sensitive data also creates potentially serious risks when theof these tools involves allowing the AI tool to access or uploading the confidential or other sensitive information into the tool. Human resources and other leaders must exercise care not to share inappropriately and to help their organizations use policies and processes to prevent their people’s use of AI tools to avoid violating statutory, regulatory or contractual confidentiality requirements, compromising confidential information, their own or business partner’s trade secrets, proprietary information and other intellectual property, or both.
Furthermore, uploading or sharing trade secrets, Health Insurance Portability and Accountability (“HIPAA”) protected health information, confidential employee, tax or other regulated information, trade secrets or other confidential or sensitive data into AI tools or searches without proper controls may itself breach of HIPAA, trade secret, federal or state privacy laws (e.g., biometric, consumer data laws) or other statutory, regulatory, ethical or contractual data privacy or confidentiality obligations. Additionally, allowing AI tools to access and interact with electronic data or systems frequently triggers data and systems security obligations under HIPAA, the Fair and Accurate Credit Transactions Act, Equal Employment Opportunity and other Human Resources and benefits data, electronic crimes, federal and state government contract, and a broad range of international, federal and state cybersecurity laws and regulations, and other government and private contractual and program participation, statutes, and regulations.
Given these concerns, organizations should avoid using AI tools that require uploading customer, financial, sales, or other data or information that the organization considers its own trade secrets or proprietary information into AI data bases or tools that do not adequately safeguard the ownership and confidentiality of that information.
AI Tool Hallucinations and Other Output Deficiency Risks
AI tools and the output they produce are not always reliable. Among other things, certain AI tools are known to:
Lack the ability to distinguish between more and less credible information sources;
Create plausible-sounding but entirely fabricated facts, news articles, legal authorities, or academic citations;
Create biased, false, incomplete, or inaccurate responses when models lack complete training data, are subjected to biased data, have limited context, ir under other circumstances;
Create false positives such as I dentifying a threat (e.g., in fraud detection) that is not actually present.
Fail to detect a real threat (e.g., in medical imagery) or report other false positives;
Fabricate non-existent, fake information or other incorrect or inaccurate information; and
Engage in hallucinations or other errors
The quality of the response, at best, often varies based on the quality and precision of the question asked. Lack of experience and careful structuring of the questions and inquiries made, lack of specialized knowledge necessary to structure the inquiry to be tailored to the specific needs at hand, and other limitations and concerns about the searches can undermine the accuracy, completeness and relevance of the AI tools output. Accordingly, response obtained by AI tools, often are unreliable and must be validated by a person experienced and skilled. The validation process should be conducted in such a matter that it preserves evidence that changes and responses are made based on thoughtful and reasonable determinations that the evidence obtained was not applicable or reliable, to minimize susceptibility to claims that decisions and actions were cherry picking based on improper intent rather than appropriate quality assurance processes. Organizations allowing the use of the tools and the individuals utilizing them need to understand and appropriately manage the very operational, legal in other risks of these deficiencies and error errors when utilizing AI tools.
Adopt And Enforce AI Policies To Manage AI Tool Use Responsibilities and Risks
Considering these and other responsibilities, human resources and other leaders and their organizations should use care to decide when, how, why, and by whom it allows AI tools to be used in or on behalf of its organization and provide appropriate steps to manage those uses in the resulting ESI to fill its legal obligations and manage its legal and operational risks. Because this process of itself could be evidence impacting, the organizations, legal exposures, organizations generally should work with qualified legal counsel within the scope of attorney-client privilege to work define and enforce policies and practices, to promote the organization’s legal and operational interests and manage the resulting legal obligations.
The author of this update, Cynthia Marcotte Stamer has decades of experience advising and representing governmental and private entities, AI and other technology, workforce and other legal and operational compliance, risk management and other operational and enforcement matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her.
For More Information
We hope this update is helpful. For more information about these or other legal, contractual or operational compliance or risk management, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452-8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on workforce and other risk management and compliance.
Ms. Stamer’s work throughout her career has focused heavily on working with businesses domestically and internationally on employment, benefits, technology, data confidentiality, privacy, and security, and other Federal Sentencing Guidelines and other workforce management, regulatory and public policy and other legal and operational concerns.
Author of many highly regarded compliance, training and other resources on these and other operations, risk management, compliance and government affairs concerns, Ms. Stamer is widely recognized for her thought leadership and advocacy on these matters.
In addition, Ms. Stamer currently or previously served as the American Bar Association (“ABA”) Joint Committee on Employee Benefits OCR annual agency scribe and a Council Representative, International Section International Employment Law Committee Chair and International Life Sciences and Health Committee Chair, ABA TIPS Medicine and Law Committee Chair, ABA Health Law Section Managed Care & Insurance Interest Group Chair, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a host of other professional and civic leadership roles. She is a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press™
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Recent fiduciary litigation clearly warns employer and other plan sponsors, plan committees and corporate officials, trustees and other service providers, and others involved in plan-related decision-making to ensure a well‑documented prudent fiduciary process for selecting and monitoring plan investments, selecting and overseeing service providers empowered to make or influence these decisions, and making other plan decisions.
The Employee, Retirement Income, Security Act (“ERISA”) requires “fiduciaries” to act prudently when making investment decisions, selecting and supervising parties to make investment decisions, or making any other fiduciary decision. See ERISA §404(a)(1)(B), 29 U.S.C. §1104(a)(1)(B).
Discount Tire Plan Litigation Illustrates Fiduciary Risks
The March 4, 2026 ruling in McGeathy v. Reinalt‑Thomas Corp., No. 2:25‑cv‑01439 (D. Ariz. Mar. 4, 2026), is the latest of a plethora of rulings highlighting the exposure of these and other parties with named or functional discretionary authority to make or select those responsible for making plan decisions risk from failing to recognize and appropriately manage their fiduciary status and responsibilities.
In McGeathy U.S. District Court for the District of Arizona refused to dismiss a fiduciary breach lawsuit alleging that the parent company of Discount Tire that sponsored the plan, various corporate officials and a trust company service provider were liable as plan fiduciaries for failing properly to monitor and replace underperforming target‑date funds in the company’s retirement plan.
The decision illustrates the willingness of courts to allow ERISA fiduciary claims to proceed against corporate plan sponsors and their officials or others who plaintiffs plausibly allege were fiduciaries and failed to follow a prudent process for reviewing investments or carrying out other discretionary decision-making. See ERISA §404(a)(1)(B), 29 U.S.C. §1104(a)(1)(B).
In McGeathy, a participant in the Discount Tire/America’s Tire Retirement Plan alleged that the defendants were plan fiduciaries and breached their duties under ERISA §404(a) by retaining a series of American Century target‑date funds that allegedly underperformed comparable funds for many years.
According to the complaint, the plan included approximately 16,000 participants and more than $1.2 billion in assets, with nearly 44% of plan assets invested in the challenged target‑date funds. The plaintiff alleges fiduciaries failed to prudently monitor and remove the investments despite long‑term underperformance relative to comparable funds.
The defendants argued that investment underperformance alone does not establish a fiduciary breach under ERISA. Some also disputed their fiduciary status relating to the challenged decisions.
The court rejected dismissal at the pleading stage, holding that the complaint plausibly alleged that the defendants were fiduciaries and as fiduciaries or co-fiduciaries may have failed to prudently monitor and replace the funds.
The court also allowed failure‑to‑monitor claims against company officials responsible for appointing and overseeing plan investment decision‑makers under the theory they acted as fiduciaries in selecting and retaining the trustee appointed to make those decisions for the plan. See ERISA §405(a), 29 U.S.C. §1105(a).
The courts ruling allows the case to proceed, requiring the plan sponsor, corporate officials, and trust company to continue to defend the case, pending a settlement or a determination on the facts. Regardless of how a case of merges, the litigation promises to be an expensive lesson, the outcome of which will depend on each defendant ability to demonstrate its prudence in the exercise of any discretion it possessed over the plan or it’s administration with regard to the disputed investments.
The Fiduciary Duty of Prudence
Under ERISA, the term “fiduciary” includes any person or entity that possesses named or functional discretionary authority over the administration or assets of a plan. ERISA §409. Since ERISA defines fiduciary status functionally, a party may not be a named fiduciary to bear fiduciary liability or responsibility. Consequently, many corporate officers and other parties often face fiduciary liability for their functional involvement and investment or other decisions regarding for the plan even though not official officially named as fiduciaries. A fiduciary generally is personally liable for breaches a fiduciary duties that it commits as well as liability as a co-fiduciary for fiduciary act or emissions of another fiduciary that the co-fiduciary through the exercise of prudence New, or should’ve known, was breaching its fiduciary duties and failed to appropriately act to protect the plan, including failure to monitor and manage a fiduciary that it appointed.
ERISA requires fiduciaries to act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use.” ERISA §404(a)(1)(B), 29 U.S.C. §1104(a)(1)(B).
Courts consistently emphasize that ERISA liability focuses on the fiduciary process used to select and monitor investments, not simply on whether investments perform well or poorly.
The U.S. Supreme Court reinforced this principle in Tibble v. Edison International, 575 U.S. 523 (2015), holding that ERISA fiduciaries have a continuing duty to monitor plan investments and remove imprudent ones within a reasonable time.
Other Recent Cases Reinforce Monitoring Duties
Recent ERISA litigation continues to demonstrate that plan fiduciaries they cannot produce the necessary evidence to show that they acted prudently risk significant personal liability.
In Collins v. Northeast Grocery, Inc., 87 F.4th 125 (2d Cir. 2025), the Second Circuit allowed fiduciary breach claims to proceed based on allegations that plan fiduciaries failed to prudently evaluate investment performance and fees relative to comparable alternatives.
Similarly, in Cunningham v. Cornell University, 604 U.S. ___ (2025), the U.S. Supreme Court revived claims challenging allegedly excessive administrative and recordkeeping fees and clarified pleading standards applicable to ERISA fiduciary breach claims.
These decisions reflect continuing judicial scrutiny of fiduciary monitoring processes, benchmarking practices, and oversight of investment decisions and the selection, monitoring and management of plan sponsors and their corporate officers and other officials involved in the selection and retention of the service providers and pension investments or provide other services.
This liability often arises or is enhanced by the failure of individuals or entities possessing or exercising discretion over the plan’s assets or administration to appreciate their own fiduciary status and a resulting failure to use the necessary processes to prudently carry out these discretionary duties in a manner that captures the necessary evidence to defend the prudence of their actions.
Compliance Lessons for Plan Fiduciaries
Plan sponsors, fiduciary committees and corporate officers and directors with responsibility or involvement in managing plan, investments, or selection and management of the service providers or company officials responsible for management of investments should consider several risk‑reduction steps.
Plan an investment for other committees, trust companies, investment, advisory organizations, or individuals involved in the discretionary decision-making about the investment and management of plan assets should conduct their activities to create and maintain the necessary, documented evidence of their prudence in their oversight and management of the plans, investments and other activities. As part of these actions, for instance, they should:
• Maintain a structured investment monitoring process with periodic performance reviews.
• Adopt and consistently follow a written Investment Policy Statement.
• Benchmark investment performance and fees against appropriate peer funds.
• Document fiduciary committee meetings and deliberations.
• Monitor market or other conditions that could create a need for reconsideration of investment policies to meet market specific or other emerging conditions and document their decision-making.
Corporate Officers Be Liable as “Functional Fiduciaries” Even When Not Named in the Plan
Another important lesson from this modern ERISA fiduciary litigation is that corporate officers and others involved in making or appointing individuals or service providers to make plan investment or other decisions can become liable as fiduciaries even if not formally named as fiduciaries in plan documents.
ERISA defines fiduciary status based on functions performed, not titles held.
Under ERISA §3(21)(A), 29 U.S.C. §1002(21)(A), a person becomes a fiduciary to the extent he or she exercises discretionary authority or control over plan management, exercises authority or control over plan assets, or provides investment advice for a fee.
Because of this functional fiduciary rule, courts frequently hold that corporate officers, executives, and investment committee members can be personally liable when they exercise discretionary authority over plan investments or the selection or retention of the parties to make those decisions.
In Fifth Third Bancorp v. Dudenhoeffer, for instance, plan participants sued corporate officers responsible for administering the company’s retirement plan.
Participants alleged that corporate insiders knew the company’s stock was artificially inflated but continued allowing the plan to invest heavily in it. The Supreme Court held that corporate officers serving as plan administrators are subject to the same ERISA fiduciary duties as any other fiduciary, rejecting a special “presumption of prudence” for employer-stock investments.
The decision reinforced that officers who exercise discretionary control over plan investments can face fiduciary liability even when acting in dual corporate roles.
Also, in Donovan v. Bierwirth, the court held corporate officers responsible for managing a company pension plan liable for breach of fiduciary duty when they made investment decisions involving employer stock during a takeover battle.
The Second Circuit held that fiduciaries must act solely in the interests of plan participants and must take steps such as seeking independent advice when corporate conflicts arise.
The case remains one of the leading precedents establishing that corporate insiders who control plan investments can be personally liable under ERISA.
Likewise, federal courts have also imposed fiduciary liability on corporate insiders involved in employee stock ownership plan (ESOP) transactions.
For example, litigation brought by the U.S. Department of Labor against parties involved in ESOP stock transactions resulted in liability where insiders participated in transactions that caused the plan to pay inflated prices for employer stock. Courts held that individuals involved in the transaction could be jointly and severally liable as fiduciaries or knowing participants in prohibited transactions.
These cases demonstrate that ERISA liability can extend beyond named fiduciaries to individuals who exercise real control over investment decisions.
This functional fiduciary doctrine significantly expands potential liability exposure.
Corporate executives may become ERISA fiduciaries when they select or retain service providers or named plan fiduciaries, approve or influence plan investment menus, participate in investment committees, select or retain target-date funds or other plan investments or appoint or monitor plan fiduciaries or investment advisors or engage in of influence other plan decisions affecting plan assets or administration.
Even if plan documents designate a committee or outside fiduciary, individuals involved in decision-making may still face liability under ERISA’s co-fiduciary provisions if they knowingly participate in or fail to correct fiduciary breaches.
Acdditional Practical Compliance Lessons for Corporate Leadership
Corporate officers involved in retirement or other benefit plan oversight should take steps to manage their potential liability exposure. Among other things, these steps should include:
Ensure plan documents and contracts provide a clear fiduciary governance structure that clearly identifies l who is responsible for plan investment and other decisions.
Establish and prudently appoint an investment committe responsible for prudent investment of the plan investments;
Require investment committee independence with prudent periodic monitoring and oversight;
Investment Committees should meet regularly and prudently decide and review investment performance pursuant to prudent written investment policy.
Ensure documented monitoring of plan investments.
Maintain benchmarking reports, advisor analyses, and prudent fiduciary deliberations documentation;
Periodically review of investment advisors Confirm that advisors are providing objective and appropriate recommendations;
Train executives and committee members Ensure individuals understand when their activities may create fiduciary status and their responsibilities.
All parties should understand that ERISA fiduciary liability is determined by what individuals actually do, not by whether they are formally labeled fiduciaries.
Courts consistently hold that corporate officers who exercise discretionary authority over retirement plan investments may be treated as ERISA fiduciaries and held personally liable for imprudent investment decisions or failures to monitor plan investments.
Businesses sponsoring employee benefit plans, and the officers and directors that serve on retirement committees, or in other capacities involved in the selection and retention of committees or service providers appointed to manage plan investments and other operations should recognize their selection authority generally will be considered fiduciary action for purposes of ERISA. Parties involved in these selection and oversight activities should conduct carefully documented processes to demonstrate their prudence in the selection and monitoring of the committee members or service providers that will be performing investment or other fiduciary functions for the plan. hiring processes should include carefully, documented, vetting processes that verify the credentials, performance, processes, fees and other compensation, and other relevant factors necessary to make these engagement of a particular entity or individual to carry out these investment functions prudent. Subsequently, procedure should be implemented and used to periodically monitor and review investment advisors and other service providers.
To meet express requirements of a risk of concerning the parties and trusted with fiduciary responsibilities, all involve parties should affirm that any individual or entity involved in the selection of plan, service providers, or investments, or otherwise performing fiduciary activities, or providing services to the plan are properly vetted for eligibility to serve under the ERISA rules, properly bonded, and otherwise have the credentials and performance history that justifies and trust of these responsibilities under the rules of prudence.
Documentation of fiduciary decision‑making is often critical in defending ERISA fiduciary breach claims. Courts frequently examine committee minutes, benchmarking reports, and advisor recommendations when evaluating whether fiduciaries followed a prudent process. processes of all involved parties should not only seek to exercise and verify prudent decision-making, but also captured the necessary evidence and documentation to defend their determination and actions in the event of a Department of Labor investigation or participant lawsuit.
Bottom Line
The Discount Tire and other similar decisions reaffirm a central principle of ERISA fiduciary law: liability often turns on the quality and documentation of the fiduciary process used to monitor plan investments or other decision-making regarding the plan, it’s service providers and investments, or other aspects of the establishment and administration of the plan.
Plan sponsors and fiduciaries should ensure they maintain a disciplined vendor credentialing, selection and contracting process; investment selection, performance and review process; and retain documentation demonstrating prudent oversight of plan investments and advisors.
Corporations should seek guidance and training from qualified employee benefits counsel as prudently required to understand and perform these responsibilities.
Also since lawsuits and other challenges can arise, despite the most diligent efforts to act prudently, all parties involved also gently should consider the advisability of securing fiduciary liability insurance coverage and appropriate contractional role designation and indemnification to help mitigate potential liability and cost arising from challenges that may arise out of the performance of investment or other related activities.
For More Information
We hope this update is helpful. For more information about these or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
A Fellow in the American College of Employee Benefits Counsel and Board Certified in Labor and Employment Law by the Texas Board of Legal Certification, Cynthia Marcotte Stamer has more than 35 years experience, advising plan sponsors, fiduciaries, service providers and others about fiduciary responsibility and other employee benefit plan design, administration, risk management and compliance. i
Ms. Stamer is a Martindale-Hubble AV-Preeminent (highest/top 1%) practicing attorney recognized as a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER™” in Health Care Law and Labor and Employment Law; among the “Best Lawyers In Dallas” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law recognized for her experience, scholarship, thought leadership and advocacy on health and other employee benefits, insurance, healthcare, workforce, HIPAA and other data and technology and other compliance in connection with her work with health care and life sciences, employee benefits, insurance, education, technology and other highly regulated and performance-dependent clients.
Ms. Stamer has more than 35 plus years of experience advising and representing, employers, employee benefit plans and their fiduciaries and administrators, their administrative services, technology and other business associates and other vendors, managed care and insurance, health care and other clients about these and other workforce, employee benefits, internal controls and other operations and compliance concerns.
Ms. Stamer is nationally sought out for her decades of leading-edge experience in the design, sponsorship, administration, and defense of health, severance, savings retirement and other employee benefit, workforce, insurance, healthcare, data and technology, and other operations to promote legal and operational compliance, reduce regulatory and other liability, and advance other operational goals. This experience includes decades of work on ERISA, Internal Revenue Code and other related labor and employment, insurance, corporate and securities, data privacy and security, licensing and other laws. She also sought out for her extensive speaking and publications on these and related concerns.
Along with her decades of legal and strategic consulting experience, Ms. Stamer also contributes her leadership and experience to many professional, civic and community organizations including current or previous service as Employee Benefits Group Chair and a Substantive Groups Committee Member for the ABA Real Property Trusts and Estates (“RPTE”) Section and Chair of its Welfare Plan, Fiduciary Responsibility and Plan Terminations Committees; Chair of the ABA International Section International Employment Law Committee; Chair and Vice Chair of the ABA Tort Trial and Insurance (“TIPS”) Section Medicine and Law Committee, Vice Chair of its Employee Benefits and Worker’s Compensation Committees; and Chair of the ABA Intellectual Property Section Law Practice Management and Special Technologies Committees; ABA Joint Committee on Employee Benefits (“JCEB”) Council Representative and Scribe for its annual agency meetings with the Department of Health and Human Services; International Section Life Sciences Committee Chair; Health Law Section Managed Care & Insurance Interest Group Chair; Vice Chair, Tax Section Fringe Benefit Committee Chair, and in various other ABA leadership capacities. Ms. Stamer also is a former Southwest Benefits Association Board Member and Continuing Education Chair, SHRM National Consultant Board Chair and Region IV Chair, Dallas Bar Association Employee Benefits Committee Chair, former Texas Association of Business State, Regional and Dallas Chapter Chair, a founding board member and Past President of the Alliance for Healthcare Excellence, as well as in the leadership of many other professional, civic and community organizations. She also is valued and celebrated for her decades of policy advocacy and charitable, pro bono, community and other service and leadership to promote understanding and strengthening health care, workforce, saving, disability, aging and retirement and other key policies and challenges through her PROJECT COPE Coalition For Patient Empowerment initiative and many other pro bono service involvements locally, nationally and internationally.
Ms. Stamer is the author of many highly regarded works published by leading professional and business publishers, the ABA, the American Health Lawyers Association, and others. Ms. Stamer also often speaks and serves on the faculty and steering committee for many ABA and other professional and industry conferences and conducts leadership and industry training for a wide range of organizations.
For more information about Ms. Stamer or her health industry, health and other benefits, workforce and other experience and involvements, see the Cynthia Marcotte Stamer P.C. website or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press™
Solutions Law Press™ provides health care, insurance, human resources and employee benefit, data and technology, regulatory and operational performance, and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education. These include extensive resources on leadership, governance, 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 or training.
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NOTICE: These statements and materials are for general information and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstances at the particular time. No comment or statement in this publication is to be construed as legal advice or admission. Solutions Law Press and its authors reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law constantly and often evolves, subsequent developments that could change the currency and completeness of this discussion are likely. Solutions Law Press and its authors disclaim and have no responsibility to provide any update or otherwise notify anyone of any fact or law-specific nuance, change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
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Solutions Law Press publisher and attorney Cynthia Marcotte Stamer will discuss tobacco cessation class actions, health plan PBM, excessive fee, antitrust and other selected emerging health and disability plan litigation trends to watch in 2025 as part of the Welfare Plan Update at the American Bar Association Real Property, Probate and Trust Section Employee Plans and Executive Compensation Group will host during its free committee call on January 17, 2025, at 11:30 AM Central Time.
Along with Ms. Stamer’s comments, the Update also will include updates on the mental health partiy final rules and implications of the January 1, 2025 expiration of high deductible health plan telemedicine relief by her fellow Welfare Benefit Committee Co-Chair Jacquelyn M. Abbott and Committee Vice Chair Julia Mader.
Members interested in the meeting are invited to use the following Zoom credentials to connect to the meeting:
Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and a Fellow in the American College of Employee Benefits Counsel, Stamer is recognized for her decades of work on leading edge employee benefits, employment, health care and insurance concerns with recognition as a Martindale Hubble “Top Rated Lawyer” and “Legal Leader” in Health Care and Labor and Employment Law; as among the D Magazine “Best Lawyers In Dallas” in Labor & Employment, Tax: ERISA & Employee Benefits, Health Care and Business and Commercial Law.
Stamer has more than 35 years of experience guiding employers, health and other employee benefit and insurance programs and their fiduciaries, managed care, TPAs, PBMs, health care clearinghouses and their service providers; and other managed care and other health and health plan industry clients on program, product, systems and process design, administration, and defense; government and regulatory investigations and affairs; HIPAA and other data and systems privacy, cybersecurity and other integrity; workforce and other service provider credentialing, contracting, and management; government and private investigations, disputes, audits and enforcement; and other compliance, risk management and operations concerns in a wide range of contexts. Her work, and the interests of her clients are enhanced by her continuous involvement in federal and state legislative advocacy, regulatory affairs and government relations on these and other related concerns throughout her career.
In the course of this work, Stamer frequently advises and represents and defends health and other employee benefit plans, their fiduciaries, third party administrators, brokers, insurers, trustees and other plan service providers, debtor plan sponsors and their leaders, auditors, creditors and creditor committees, bankruptcy trustees, on prevention and mitigation of claims, fiduciary, licensing, prompt pay and other contractual, regulatory and other risks and liabilities arising from underfunded or distressed companies and employee benefit plans. She also advises employers, their boards, investors and management, third party administrators, preferred provider organizations, insurers and other plan service providers and others in fiduciary, claims and other audits, investigations and enforcement actions by private litigants, the Department of Labor, Department of Health & Human Services, Internal Revenue Service, Department of Justice, Federal Trade Commission, state insurance, attorneys’ general or other regulator, contractual arising out of workforce and staffing, employee benefit and insurance practices and programs in ongoing operations, corporate or credit transactions, bankruptcy or other situations and serves as special or consulting counsel for bankruptcy and other human resources, benefits, insurance, health care and regulatory compliance and investigation concerns. Stamer also counsels, represents and defends third party administrators, preferred provider and other managed care organizations, brokers and other regulated parties in state insurance and other regulators notice and reporting, investigations, audits, discipline and other enforcement actions.
Past Chair of the ABA RPTE Employee Benefit and Other Compensation Group, the Health Law Section Managed Care and Insurance Interest Group, and the Tort Trial and Insurance Section Medicine and Law Committee, Stamer also contributes her experience and knowledge by serving as Scribe for the American Bar Association (“ABA) Joint Committee on Employee Benefits (“JCEB”) annual agency meeting with the Department of Health and Human Services as well as a leader of employee benefits, human resources, health as an industry thought leader, Stamer also publishes and speaks extensively on health and other employee benefits, compensation, workforce, health care and related regulatory compliance and risk management matters.Her insights on these and other matters appear in publications of the American Bar Association, Bloomberg/BNA, Modern Healthcare, Aging In Place, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Stamer, her speaking, legal, consulting and other experience and services, or to access other publications by Stamer see CynthiaStamer.comor contact Stamer directly via e-mailor telephone (214) 452-8287.
For more details about the Real Property Probate and Trust Section Employee Benefits and Other Compensation Committee or other employee benefits related committees and activities of the American Bar Association, see the American Bar Association website here.
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 hereand connect with Stamer on Linkedin. For important information concerning this communication click here. If you do not wish to receive these updates in the future, unsubscribe by updating your profile here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides health care, insurance, human resources and employee benefit, data and technology, regulatory and operational performance, and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education. These include extensive resources on leadership, governance, 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, Inc.™ resources.
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 your profile here.
NOTICE: These statements and materials are for general information and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstances at the particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law constantly and often rapidly evolves, subsequent developments that could impact the currency and completeness of this discussion are likely. The author and Solutions Law Press, Inc. disclaim and have no responsibility to provide any update or otherwise notify anyone of any fact or law-specific nuance, change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
With this week’s Thanksgiving celebrations kicking off the 2024 year-end holiday festivities, wise businesses will proactively act to reduce the risk that their business will start 2025 with a post-holiday workforce liability hangover.
Responsibly managed, company-sponsored and other social celebrations and activities can promote team building, morale, goodwill and other rewards. However, holiday celebrations, staffing disruptions, behaviors and their fallout also can often create attendance, discipline, compliance, safety and other legal and operational responsibilities, risks and costs. Wise business leaders act proactively to mitigate these risks as the nation enters holiday season begins.
Health & Safety
Gatherings, food, game playing, toasting with alcohol, travel and other aspects of company-sponsored and off-duty celebrations can enhance usual or create new accident and illness risks. Holiday socialization, presentism, distractions, staffing disruptions, operational changes and other factors can increase illness and accident risks. Injuries and illnesses suffered on or off the job can create added occupational health and safety and worker’s compensation responsibilities, costs and liabilities, disrupt staffing and productivity, and fuel health care, medical leave, disability, worker’s compensation and other responsibilities and expenses long after the holiday season ends. To help workers enjoy the Holidays safely and avoid these business costs and disruptions, businesses should confirm that their occupational health, safety and injury policies, practices, and staffing fulfill applicable occupational health and safety and workplace accident and injury laws, as well as consider encouraging workers to follow good health and safety practices on and off the job throughout the holiday season.
Employers generally have a duty of care under the Occupational Safety and Health Act (“OSH Act”) and other occupational health and safety laws to provide a safe work environment. The OSH Act requires businesses to recognize and take appropriate steps to keep their workplaces safe. The OSH Act, worker’s compensation, leave and other laws. OSH Act and other workplace safety laws generally require employers to promptly report and investigate workplace accidents and injuries, ensure workers receive timely treatment, and trigger occupational injury and other leave and other duties.
Workplace injuries resulting from unsafe workplace conditions generally trigger expensive penalties and damages, in addition to worker’s compensation or other occupational injury coverage liabilities. The holiday season often exacerbates or adds to the ongoing challenges employers face in maintaining workplace safety and responding to workplace injuries and accidents. Some common sources of additional risks associated with the holiday season include decreased oversight from management holiday absences, heightened worker fatigue and distraction, demand-driven, vacation or illness-related understaffing, expanded use of temporary or contract staffing, and holiday season-associated intoxication. See Holiday Workplace Safety. OSHA offers various recommendations to aid employers in recognizing and managing heightened workplace safety risks during the holiday season. Keeping Workers Safe This Holiday Season. To mitigate their risks from workplace injuries and accidents caused by safety violations and associated violations of investigation, reporting, benefit and other requirements, business leaders should ensure that their organizations identify and manage these additional risks, as well as ensure appropriate staffing and other arrangements are in place to ensure timely response, investigation and reporting of any workplace accidents or injuries during the holiday season.
With outbreaks of the flu, respiratory illnesses and other communicable or infectious diseases that spread from person to person common during the holidays, and holiday gatherings heightening the potential for transmission of the flu or other contagious diseases, businesses also should consider their responsibilities under the OSH Act or other laws to manage contagious disease exposures and spread. For instance, health care and certain other industries may be subject to laws or regulations that impose specific requirements for preventing and responding to contagious diseases, many of which may have been added or changed since the COVID-19 pandemic. Businesses should verify their policies meet or exceed current federal, state, local and contractual requirements as well as are designed to meet their business’ need to manage other contagious disease costs, absences and other disruptions.
Whether or not a business is subject to specific contagious disease management mandates, all businesses generally will benefit from reviewing and communicating their existing contagious disease and related leave and other workforce policies to workers and management to help protect their operations against the costs, operational disruptions and liabilities that often result from contagious disease outbreaks within their workplace. To enhance efforts to deter worker injuries and illnesses, businesses should consider using free resources like the Centers for Disease Control’s Healthy Habits to Prevent Flu and 8 Tips for a Safe and Healthy Holiday Season flyers, workplace posters, payroll stuffers and other communications to remind workers and their families to follow best safety and contagious disease prevention practices during the holidays.
Along with encouraging workers to stay healthy and safe during the Holidays, businesses should also consider providing documented reminders and take other steps to encourage workers to provide timely notice of illnesses and injuries and verify appropriate management coverage and arrangements to ensure that management team absences don’t disrupt the business’ timely delivery of Family and Medical Leave Act, occupational injury and other notifications, coverage for absences, provision of benefits, and other performance of other responsibilities in response to injury and illness reports despite holiday associated absences or hours of operation impacting the employing business or its responsible vendors.
Businesses also should verify their workplace safety, contagious disease and leave policies are designed and administered to prevent and mitigate exposure for unlawful OSH Act and worker’s compensation retaliation, disability discrimination against legally protected employees with chronic or other disabilities under the Americans with Disabilities Act (“ADA”), denial of leave or other violations of the Family and Medical Leave Act leave, notice and other requirements; and ADA and other privacy and confidentiality laws.
Alcohol & Other Conscious Altering Substance Consumption
The increased prevalence of holiday season celebrations and vacations often fuels an increase in consumption of alcohol, marijuana, and other consciousness-altering substances. This consumption can fuel a host of risks and headaches for businesses. Businesses concerned about these risks should act proactively to mitigate these risks.
When addressing business-related alcohol consumption, many businesses will want to consider not only alcohol and other conscious altering consumption at business-related events as well as potential costs that may arise from off-duty excess alcohol consumption. Whether resulting from on or off-duty consumption, excess alcohol, marijuana or other conscious altering consumption, whether on or off duty, can undermine productivity, create attendance and discipline issues, and fuel a host of other risks even when it does not result in a specific accident or injury.
Impaired judgment from alcohol or other intoxication in the workplace or at other events often fuels or contributes to employees or others exhibiting or subjecting employees to inappropriate sexual advances or other discriminatory statements, violent behavior, suicidal behavior or other problematic conduct requiring workplace investigations and discipline.
Most businesses also recognize that accidents caused by alcohol or other intoxication at work or work-related functions create substantial liability exposures for the company under the OSH Act and other occupational safety laws, as well as to workers and any third parties injured by a drunken employee, business associate, client or guest.
Businesses risk “dram shop” or other claims or other liability if employees or guests impaired by alcohol or other substances consumed at company-sponsored or associated events or operating company vehicles or equipment injure others.
Beyond this third-party liability, businesses also may incur significant worker’s compensation, health or disability benefit-related benefit costs if an employee is injured or injures another worker in an alcohol-related accident.
The potential headaches are even greater where the business is a health care, education, automobile sales, trucking and other transportation, or another business subject to or that has voluntarily adopted specific drug and alcohol-free, drug and alcohol testing and other related regulatory or contractual requirements. Businesses subject to these requirements should ensure appropriate arrangements for timely drug and alcohol testing, reporting, and other compliance with these requirements during the holiday season to avoid regulatory or contractual penalties for noncompliance. Companies administering substance abuse testing must comply with applicable mandates while also ensuring that their processes incorporate appropriate protocols to comply with disability discrimination, accommodation and confidentiality requirements of the Americans With Disabilities Act (“ADA”). See, e.g., ADA May Require Employers To Accommodate Employees Testing Positive For Legally Prescribed Medications
Also, because workers engaged in these industries generally risk loss of licensure, certification or other credentials required to perform their jobs for engaging in or failing to report certain alcohol or substance-related offenses or conduct, even off-duty consumption can create staffing headaches for an employer if a worker becomes temporarily or permanently disqualified to work as a result of a substance-related infraction. Consequently, businesses in industries affected by these heightened requirements have a heightened interest in educating and reminding workers to behave legally and responsibly when deciding if and when to consume alcohol or other conscious-altering substances.
Accordingly, virtually all businesses can benefit from encouraging employees to be responsible when consuming alcohol in both business and non-business functions and in planning and hosting holiday functions.
Businesses that serve alcohol at company functions or anticipate that employees will attend other business functions where alcohol will be served need to consider the potential liability risks that may result if the alcohol-impaired judgment of an employee or other guest causes him to injure himself or someone else. A company anticipates an employee or guest might consume alcohol at a company-sponsored or another business event and should adopt and enforce clear policies to prohibit and prevent individuals from over-imbibing and from driving under the influence. Many businesses also find it beneficial to suggest, require or offer at company expense alternate transportation for employees to use when leaving a company or business-related event where the employee consumed alcohol.
Businesses concerned with these liability exposures should take steps to manage the potential risks that commonly arise when employees, clients or other guests consume alcohol at company-sponsored events or while attending other business-associated festivities. To minimize these risks at company-sponsored events, many companies elect not to serve or limit alcohol consumed by workers and served to guests at company sponsored events and other business functions.
To help prevent intoxication from fueling inappropriate behavior at company celebrations where alcohol might be consumed or present, businesses, at a minimum, should remind employees that company policies prohibiting intoxication apply to company-sponsored social and business events. Some practical tips for hosting safe holiday gatherings include:
Management and other leaders should communicate expectations and set a good example.
Reduce opportunities for intoxication by prohibiting or restricting and monitoring the amount of alcohol available and served.
Offer a plentiful supply of a variety of nonalcoholic drinks—water, juices, sparkling sodas. Nonalcoholic drinks provide guests with alternatives to alcohol. They also may help counteract the dehydrating effects of alcohol, slow the rate of alcohol absorption into the body and may reduce the peak alcohol concentration in the blood.
Provide a variety of healthy foods and snacks. Food consumption can slow the absorption of alcohol and reduce the peak level of alcohol in the body by about one-third. Food can also minimize stomach irritation and gastrointestinal distress the following day.
Encourage guests to help keep each other safe by monitoring and assign a team to monitor attendees for potential overconsumption or other signs of intoxication. With appropriate pre-consumption notification to attendees, some businesses even require or encourage attendees consuming alcohol to take a breathalyzer test before departure to minimize the risk that an intoxicated guest will be arrested or involved in an accident after departing the party.
Help your guests get home safely by arranging reliable transportation by using designated drivers and taxis. Anyone getting behind the wheel of a car should not have ingested any alcohol.
Because holiday-associated alcohol consumption and other stresses also tend to fuel increased depression, domestic violence and other stress-associated behaviors, many businesses also find it beneficial to redistribute information about employee assistance programs (EAPs).
Businesses also may want to review the adequacy of existing health, disability, accident and dismemberment, group legal services and other benefit programs, liability insurance coverage and employment policies to protect and promote the company’s risk management and workforce coverage objectives. Businesses can experience unfortunate surprises if they don’t anticipate the implications of these provisions on their employment policies, leave and benefit, safety and other workplace programs and liability insurance and indemnification obligations and costs. Maintaining and reminding workers about policies regarding alcohol consumption or intoxication, accident and traffic offense notifications, privacy waivers, or other policies enhancing accident investigation and response, or other strategic policies can help deter and facilitate investigation and response to on and off-duty accidents or other risk-creating events.
Many employee assistance (“EAP”) health and disability programs incorporate special provisions affecting injuries arising from inappropriate alcohol use as well as offer coverage and benefits to aid employees and family members affected by mental health or substance abuse-related conditions. Changes in regulatory mandates and expanded enforcement of federal group health plan mental health and substance abuse coverage mandates make it important to ensure that employment-based health coverage complies with these requirements. Similarly, many businesses increasingly qualify for preferential rates or discounts on liability policies based upon representations that the business has in effect certain alcohol and drug use or other risk management policies and practices. Reviewing these policies now to become familiar with any of these requirements and conditions can also be invaluable in helping a business respond effectively if an employee or guest is injured in an alcohol-related accident.
Discrimination & Harassment Liability Risks
Businesses should also manage exposures to religious, sex and other discrimination risks linked with the holiday season.
Businesses should critically review their scheduling and other holiday season plans and practices for potential prohibited discrimination or other insensitivity. Businesses should use care to handle carefully requests for religious-based scheduling changes, particularly in light of changes in judicial precedent and regulations in recent years. Leave policies should disclose policies for scheduling and holiday leave clearly and include appropriate, updated policies and procedures for requesting religious accommodation. Companies also should consider seeking advice from legal counsel before denying a faith-based request for a schedule change in light of the latest guidance or recent court decisions precedent.
Business-sponsored or connected holiday or year-end parties, communications, gifts, and other December festivities and observances should be designed to reflect appropriate sensitivity to sexual harassment and religious and other cultural diversity risks. Businesses should exhibit sensitivity and alert their workforce to their expectation that members of their workplace exhibit respect and sensitivity to differences in religious practices and observances among their employees, business associates and friends. Management and other workers should use care to plan social gatherings to be inclusive and to accommodate differences in cultural, religious and other differences. Businesses also should be sensitive to the potential that workers of alternative faiths may feel discriminated against if holiday observances focus unduly on a particular religion to exclude their faith. Businesses also should use care to manage other discrimination exposures in the planning of holiday festivities, gift exchanges, and other activities. Businesses also should be vigilant in watching for signs of inappropriate patterns of discrimination in the selection of employees invited to participate in company-connected social events and off-duty holiday gatherings sponsored by managers and supervisors.
A good starting point is reminding employees, business partners and customers that the company expects employees, business partners and other guests to adhere to company rules against sexual harassment, religious and cultural and other inappropriate discrimination at company-sponsored and other gatherings involving other employees or business associates. Businesses also should remind employees that the company does not expect or require that employees submit to unwelcome sexual, religious, or other inappropriate harassment or discrimination when participating in parties or other social engagements with fellow employees, customers or other business partners and of the procedures to follow to report any concerning events. Even a simple e-mail reminder to employees that the company expects them to be familiar with and comply with these policies and can help promote compliance and provide helpful evidence if an employee or other celebrant steps over the line.
To enhance the effectiveness of these reminders, a business should consider adopting and sharing specific guidance to educate workers about its policies, including examples to illustrate company-sponsored and other off-duty holiday-associated activities of particular concern.
Businesses also should recognize that whether or not company-sponsored, the fraternization inherent in holiday parties and other celebrations where employees celebrate with other employees, clients, suppliers or other business associates can lower inhibitions and obscure the line between appropriate and inappropriate social and business behavior. With or without alcohol, some employees, clients or business associates may misinterpret the festive social atmosphere of holiday celebrations. Some employees, clients or business associates make unwelcome sexual advances, make sexually suggestive or other inappropriate statements, or engage in other actions that expose the business to sexual harassment or other employment discrimination, harassment or retaliation liability. To help deter inappropriate or risky conduct, businesses should consider providing reminders that company prohibitions and rules about sexual harassment, discrimination, fraternization and other inappropriate conduct remain in effect during the holiday season, including when planning or attending holiday celebrations or other events hosted by the business, business partners and clients, and even private management sponsored events and observances.
Gift Giving, Gratuities & Social Entertainment
The exchange of social invitations, gifts and gratuities during the holiday season or at other times throughout the year also can raise various concerns. Businesses should adopt and communicate clear policies and procedures governing both giving and receiving social invitations, gifts, and other benefits. Businesses should review applicable governmental regulations, contractual requirements, and customer and vendor policies for requirements that could impact the offering, receipt, reporting or other handling of gifts, social invitations or other activities. Businesses also should design policies to ensure that they collect and retain sufficient documentation from employees, officers, consultants, customers, and vendors to monitor compliance and other legal and operational risks associated with social entertainment, gifts, and other similar benefits, to report tax deductions and income arising from these activities appropriately, and to meet other compliance obligations. Businesses should review and update current business policies affecting social entertainment, gifting and other similar activities for opportunities to promote compliance and mitigate risks.
As with other holiday observances, all gifts, gratuities and social entertainment must adhere to applicable laws, regulations and company policies regarding bribery, conflict of interest or other inappropriate inducements or rewards. Companies should implement and enforce appropriate policies for the offering and provision of and recordkeeping and reporting of these perks.
Gifts, gratuities and entertainment practices also must not discriminate inappropriately based on sex, religion or other protected status and must reflect appropriate sensitivity to potential religious, sex, race, or other protected status. A business that anticipates workplace or work-connected private festivities might include white elephant or other gift exchanges may wish to specifically include a reminder to exercise care to avoid selecting a gift that may be sexually suggestive, insensitive to religious, cultural or other differences or otherwise offensive.
Businesses also should confirm that all applicable tax implications arising from the giving or receiving of gifts are appropriately characterized, documented and reported in accordance with applicable tax, referral, conflict of interest and other requirements.
In addition to ensuring proper tax documentation and reporting, businesses also need to ensure and retain documentation of the propriety of invitations, gifts and other benefits. Social entertainment and gift-giving activities intended to show appreciation or support marketing efforts can create significant legal or relationship risks if not properly tailored to avoid regulatory or contractual prohibitions or appearances of impropriety. Government contractors, government officials, health care providers, nonprofits, public companies and an amazingly broad range of other entities often must comply with specific statutory, regulatory, contractual or ethical requirements affecting the giving or receiving of invitations, gifts or other preferences. An ill-conceived social invitation, gift, or other benefit that violates these restrictions may expose both givers and recipients to legal prosecution, program disqualification and other serious legal risks.
In addition to these externally imposed legal mandates, many businesses have established their own conflict of interest, social entertainment, gift giving or other policies to minimize the risk that employee loyalty or judgment will be comprised by gifts offered or received from business partners or other outsiders. Employees, officers and contractors of businesses maintaining these policies may face termination or other significant discipline for violating these requirements. Accordingly, businesses offering social invitations, gifts and other benefits to valued vendor or customer relationships risk must be sensitive to these organizationally imposed requirements.
Timekeeping, Performance, Attendance & Time Off
Businesses also commonly face a range of year-end timekeeping, attendance and time off, pay, compensation and productivity concerns. The winter cold and flu season and other post-celebration illnesses, vacations, and winter weather inevitably combine to fuel a rise in absenteeism and competing requests for time off during the holiday season. Improperly designed or out-of-date timekeeping and reporting, leave and attendance, investigations, privacy and other workplace policies can exacerbate management of these challenges and their costs. Further complications can arise when dealing with employees suspected of mischaracterizing the reason for their absence or otherwise gaming the company’s time off policies. Meanwhile, performance and productivity concerns also become more prevalent as workers allow holiday shopping, personal holiday preparations, and other personal distractions to distract their performance.
Managing staffing needs and tracking and administering timekeeping, overtime and other pay, paid and unpaid time off and other attendance, compensation and absence administration while maintaining compliance with legally protected or other legitimate requests for excused time off by employees can present major headaches for businesses and their management. Recent changes in federal, state and local paid and other protected leave mandates add additional traps for the unprepared. Businesses concerned with these challenges ideally will review their policies and practices to ensure their organizations have in place well-designed policies and practices concerning timekeeping, overtime and other pay, attendance and time off, productivity and performance that comply with the Fair Labor Standards Act and other compensation, timekeeping, leave, reporting, investigations, privacy and other federal, state and local laws. Businesses should exercise care when addressing productivity and attendance concerns to investigate and document their investigation before imposing discipline. Businesses also should ensure that their policies are appropriately and even-handedly administered. They also should exercise care to follow company policies, to maintain time records for non-exempt workers, to avoid inappropriately docking exempt worker pay, and to provide all required notifications and other legally mandated rights to employees taking medical, military or other legally protected leaves. In the event it becomes necessary to terminate an employee during December, careful documentation can help the business to defend this decision. The increasing prevalence of worker classification challenges by federal and state agencies and plaintiff’s attorneys also makes it important for businesses to take steps to require and preserve access to documentation be able to demonstrate compliance with these and other applicable legal obligations by staffing and other contract labor suppliers.
Timely Investigation, Notification & Reporting
Businesses faced with allegations of discrimination, sexual harassment or other misconduct or potential business liabilities arising during holiday seasons should also take steps to ensure that appropriate staffing and other arrangements to ensure their organization’s ability to promptly investigate, if necessary, take appropriate corrective action to address complaints or other concerns arising during the holiday season around management or other time off.
Delay in investigation or redress of accidents, discrimination or other concerns can increase the liability exposure of a business presented with a valid complaint and complicate the ability to defend charges that may arise against the business. Additionally, delay also increases the likelihood that a complaining party will seek the assistance of governmental officials, plaintiff’s lawyers or others outside the corporation in the redress of his concern.
If a report of an accident, act of discrimination or sexual harassment or other liability related event arises, businesses should take steps to ensure that management responsible for responding to these and other occurrences are property trained or otherwise supported to carry out these responsibilities in an appropriate, defensible manner as well as to provide timely notification as needed to any government entities, contract partners, insurers, agencies or other parties. Injuries occurring at company related functions often qualify as occupational injuries subject to worker’s compensation and occupational safety laws. Data breaches and various other events may trigger notification or other disclosure obligations to meet statutory, contractual or other requirements. Likewise, automobile, cyber, employment practices and other liability policies often require covered parties to notify the carrier promptly upon receipt of notice of an event or claim that may give rise to coverage, even though the carrier at that time may not be obligated to tender a defense or coverage at that time. Ensuring appropriate, timely response can play a critical role in promoting defensibility, mitigating liability or preserving coverage or indemnification rights.
For Help With Investigations, Policy Updates Or Other Needs
If your organization would like to learn more about the concerns discussed in this update or seeks assistance auditing, updating, administering or defending its human resources, compensation, benefits, corporate ethics and compliance practices, or other performance-related concerns, please contact management attorney and consultant Cynthia Marcotte Stamer.
An attorney Board-Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer’s work focuses on helping management manage performance, legal compliance and operational risks.
For more than 35 years, Ms. Stamer’s work has advised businesses and business leaders about enhancing the effectiveness and defensibility of their operations using employment and other workforce and services management, employee benefits, compensation, performance management, contracting, Federal Sentencing Guideline and other compliance and risk management, investigations, and other legal and operational tools and solutions. While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others with compliance with federal and state equal employment, compensation, health and other employee benefits, workplace safety, leave, and other labor and employment, privacy and data security, and other laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and IRS, Department of Labor, Department of Justice, SEC, Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, Department of Health, Department of Agriculture and other federal and state regulators.
Ms. Stamer also speaks, coaches management and publishes extensively on these and other related matters.
Her work, thought leadership and scholarship on helping organizations manage people, operations and risk have earned her recognition as a Fellow in the American College of Employee Benefit Counsel, a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER™” in Labor and Employment Law and Health Care Law; a “Best Lawyers” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law.”
For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
Other Helpful Resources & Information
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Employers should carefully scrutinize job reassignments for possible sex or other prohibited bias in light of the Supreme Court’s April 17th ruling holding job detriment suffered from a discriminatory reassignment need need not be significant to be actionable.
The Supreme Court’s Muldrow v. City of St. Louis decision resulted from a Title VII lawsuit brought by Sergeant Latonya Clayborn Muldrow, a police officer against the St. Louis Police Department, challenging her reassignment as sexually discriminatory.
Muldrow alleged that she was transferred from her position in the Intelligence Division to a uniformed job in another department because of her gender. Despite maintaining her rank and pay, Muldrow’s responsibilities, perks, and schedule were significantly altered. She filed a Title VII suit against the City of St. Louis, claiming that the transfer constituted sex discrimination with respect to her employment terms and conditions.
Muldrow appealed to the Supreme Court after both the District Court and the Eighth Circuit held that since the transfer did not result in a reduction to her title, salary, or benefits and only caused minor changes in working conditions, Muldrow’s lawsuit could not proceed. Those courts ruled Muldrow had to show that the transfer caused her a “materially significant disadvantage.”
The Supreme Court disagreed. It ruled that an employee challenging a job transfer under Title VII only needed to show some injury respecting her employment terms or conditions, not that the harm was significant.
The ruling that proof of significant job detriment is not required for a reassigned employee to prove a job assignment discriminatory allows reassigned employee’s significantly more latitude to challenge reassignments as discriminatory. Consequently, employers considering reassignments of employees should carefully scrutinize the proposed changes holistically for any potential detriment that affected employees might use to demonstrate discriminatory job detriment. Additionally, employers also should carefully identify and document valid business, discipline or other defensible justifications for planned job reassignment before taking action to make the job reassignment. Due to the potentially sensitive nature of reviews and discussions regarding this analysis, employers generally will want to conduct this analysis with the guidance of a qualified attorney and within the scope of attorney-client privilege.
For More Information
We hope this update is helpful. For more information about these or other health or other legal, management, or public policy developments, please get in touch with the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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 your profile here.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health, employ benefits, insurance, hospitality, retail, construction and other industry management work, public policy leadership and advocacy, coaching, teachings, and publications.
A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer has decades of experience advising and defending employers on wage and hour and other labor and employment laws.
Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Her experience includes extensive involvement advising clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination; EBSA, IRS, and PBGC employee benefit; WHD, CAS, Davis-Bacon and other federal and state wage and hour and other compensation; OSHA and other investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Laws Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here, such as:
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NOTICE: These statements and materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstances at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules make it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access to this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Pandemic’s End Doesn’t End COVID-19 Employer Headaches
Children’s Healthcare of Atlanta, Inc. (“CHOA”) is paying $45,000 to settle a religious discrimination lawsuit arising from its failure to grant a religious exemption from its COVID-19 vaccination requirements for a maintenance worker. The lawsuit highlights the continuing importance of all employers to use care when handling request for religious accommodation to vaccine or other workplace requirements.
The lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) arises from the 2019 denial of a request for a religious exemption to CHOA’s COVID-19 vaccine mandate made by a maintenance worker. CHOA previously had granted the same employee a religious exemption for vaccine mandates in 2017 and 2018. In 2019, however, CHOA denied the employee’s request for a religious accommodation and fired him, despite the employee working primarily outside and his position requiring limited interaction with the public or staff the EEOC said.
The EEOC alleged the denial of the vaccine exemption violated Title VII of the Civil Rights Act of 1964, which prohibits firing an employee because of their religion and requires that employers reasonably accommodate the sincerely held religious beliefs of their employees.
Under the consent degree entered in Ciil Action No. 1:22-CV-04953-MLB-RDC in U.S. District Court for the Northern District of Georgia, CHOA will pay $45,000 in monetary damages to the former employee. CHOA will also adjust its influenza vaccine religious exemption policy to presume the exemption eligibility of employees with remote workstations or who otherwise work away from the presence of other employees or patients, and to protect the ability of such employees to seek alternative positions within CHOA if their religious exemption request is denied. The decree further provides that CHOA will train relevant employees on religious accommodation rights under Title VII.
The EEOC announcement of the consent degree alerts employers of the continuing need to use care when handling religious accommodation requests to vaccine or other workplace policies. “ It is the responsibility of an employer to accommodate its employees’ sincerely held religious beliefs,” the announcement quotes Marcus G. Keegan, the regional attorney for the EEOC’s Atlanta District Office. “Unless doing so would require more than a minimal cost, an employer may not deny requested religious accommodations, let alone revoke those previously granted without issue. The EEOC is pleased that the employee has been compensated and that CHOA has agreed to take steps to ensure that it meets its obligation to evaluate religious accommodation requests in a manner consistent with federal law.”
Likewise, the announcement quotes Darrell Graham, district director of the Atlanta office, as saying , “The arbitrary denial of religious accommodations drives religious discrimination in the workplace. The EEOC remains committed to enforcing the laws that protect employees’ religious practices.”
While the federal COVID-19 vaccine mandate is gone, many healthcare and other employers continue to impose mandate requirements with appropriate disability and religious exemptions as part of their workplace safety and patient safety protocols. Additionally, beyond the Covid – 19 vaccination protocols, many workplace vaccination and other rules also can create conflicts with certain religious beliefs that prompt religious accommodation requests.
Employers administering these vaccination, and other policies must keep in mind that the duty to offer religious accommodation and the EEOC emphasis on enforcing accommodation rights for workers whose deeply held religious beliefs conflict with workplace rules lives on. The perils remain, even if the requirement is supported by well, established patient or workplace safety protocols. Employers need to evaluate and be prepared to defend their inability to accommodate the safety and other concerns underlying the workplace mandate against a potential religious discrimination challenge.
Employers must remain diligent in their management of responses to request for accommodations keeping in mind that EEOC COVID-19 – era guidance imposes a heavy burden on an employer to justify its refusal of a request. For this reason, employers that receive a request for religious of accommodation from an employee should seek the advice of experienced legal counsel as soon as possible if any question exists about whether the employer will grant the request. Employers also should ensure their policies clearly communicate the availability of religious and disability accommodation from these other requirements, establish clear protocols for requesting and processing those requests and prohibit and prevent retaliation.
To promote defensibility, employers also should consult with experienced legal counsel about the use of attorney, client, privilege, and other protocols to prevent or minimize the risk that discussions and actions in response to, or following a request for accommodation creates evidence of discrimination or retaliation.
For More Information
We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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 your profile here.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. At her career, she has worked extensively with healthcare and other employers to manage discrimination and other workplace and employee benefit compliance and risks. She speaks and publishes extensively on these and other related compliance issues.
Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:
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 your profile here.
NOTICE: These statements and materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstances at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules make it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access to this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
The Internal Revenue Service (“IRS”) issued a series of updates and tips on the use of the Voluntary Correction Program (“VCP”) to correct eligible defects in qualified employee benefit plans.
Check the Status of your VCP Submission
VCP applicants frequently wonder about the status of their VCP Submission. Applicants may not check if their VCP submission has been assigned to a specialist by comparing the date of the submitter’s confirmation email to the date of the most recent VCP submissions that have been assigned to a specialist at at IRS.gov/VCPstatus.
Revised VCP Model Compliance Statement and Schedules
The IRS updated several fill-in VCP forms to revise outdated information, provide clarity, and make it easier to present some late amender failures that impact 401(a) and 403(b) retirement plans.
Plan sponsors can use the model compliance statement and schedules to make an IRS Voluntary Correction Program (VCP) submission. The model schedules (Forms 14568- A to 14568-I) contain standardized methods plan sponsors can use to correct common mistakes using VCP.
The IRS recently changed the following fill-in forms:
Form 14568, Model VCP Compliance Statement to update enforcement section language;
Form 14568-A, Model VCP Compliance Statement – Schedule 1: Plan Document Failures for 403(b) Plans for late amender failures only to provide a framework to present late amender failures that involve IRC 403 plans and standardized descriptions for some very common 403(b) plan document failures;
Form 14568-B, Model VCP Compliance Statement – Schedule 2: Nonamender Failures for 401(a) Plans for use only for late amendment failures to group failures pre-approved plans vs individually designed plans and failure descriptions for pre-approved plans to include the latest failures; to provide a framework to present failures involving individually designed plans not timely to comply with the Required Amendments List, or the Cumulative List (prior to 2017) and to allow for legit late interim amendment failures affecting a pre-approved plan to be presented as an “Other” failure in Section I C;
Form 14568-C, Model VCP Compliance Statement – Schedule 3: SEPs and SARSEPs is updated to include a direct link to the DOL VFCP calculator and increased to $250 the standardized narrative involving small excess amounts;
Form 14568-D, Model VCP Compliance Statement – Schedule 4: SIMPLE IRAs includes an pdated direct link to the DOL’s VFCP calculator and increased to $250 the standardized narrative involving small excess amounts.
No changes have been made to the other forms in the Form 14568 series (Form 14568-E through Form 14568-I).
Interim Guidance on EPCRS: Notice 2023-43
The IRS released guidance in the form of Q&A’s on changes made by the SECURE 2.0 Act to the Employee Plans Compliance Resolution System of voluntary correction programs for retirement plans. Notice 2023-43 provides interim guidance for taxpayers in advance of an update to EPCRS as outlined in Revenue Procedure 2021-30.
For more information on the correction programs available to correct mistakes in your retirement plan, go to IRS.gov/FixMyPlan.
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Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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 may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:
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Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employer and other plan sponsors, administrators, fiduciaries, and insurers of employment-based life and disability insurance programs requiring evidence of good health or other insurability should ensure their administrator or insurer timely makes and notifies participants of any insurability-based limitations or denials on eligibility or coverage in light of a new Department of Labor settlement with United of Omaha Life Insurance Co. (“United”) and United’s parent company — Mutual of Omaha Insurance Co. — and United’s subsidiary, Companion Life Insurance Co. (the “United Companies”) announced September 29, 2023. The settlement sends a strong message to insurers, fiduciaries, administrators and sponsors of life, disability of insurance plans and policies covered by the Employee Retirement Income Security Act of 1974 (“ERISA”) requiring evidence of insurability to ensure their own programs also timely decide and notify participants whether their plans’ insurability requirements are met after receiving enrollment applications.
While the Health Insurance Portability & Accountability Act (“HIPAA”) and Patient Protection & Affordable Care Act (“ACA”) generally prohibit insurability or other evidence of good health requirements in health plans, many ERISA-covered life, disability and other insurance programs continue to condition coverage on evidence of good health or other insurability requirements.
The United settlement requires the United Companies to revise their processes for administering requirements that participants in employer-sponsored life insurance plans provide proof of good health — referred to as evidence of insurability — before obtaining coverage in certain instances.
The settlement resolves a lawsuit filed by the Labor Department after an Employee Benefits Security Administration (“EBSA”) investigation into how United administered proof of good health eligibility requirements in ERISA-covered life insurance plans. The investigation found that United denied numerous claims based on a participant’s failure to provide evidence of insurability after accepting premiums for years without determining if insurability requirements were satisfied. The delayed determinations caused participants and their beneficiaries to believe they had coverage until after the participant died, United denied claims for benefits on the grounds United never received the participant’s evidence of insurability, leaving beneficiaries without life insurance benefits for which their loved one had paid.
United has advised the department that it has voluntarily reprocessed claims dating back to February 2018 to provide benefits for claims denied based solely on a participant’s failure to provide evidence of insurability. The settlement reached by the Labor Department’s Office of the Solicitor also requires the United Companies to decide insurability within 90 days after it receives a participant’s first premium payment. After the 90-day period expires, the United Companies cannot deny a claim for life insurance benefits for reasons related to evidence of insurability.
The Labor Department’s announcement of the settlement warns the Department stands ready to take similar enforcement action against other group plans that fail to decide insurability promptly and notify applicants promptly following enrollment. For instance, the announcement quotes Assistant Secretary for EBSA Lisa M. Gomez as saying, “The Employee Benefits Security Administration will take appropriate action against insurance companies that collect regular premium payments from plan participants without ensuring up front that participants have satisfied eligibility requirements like insurability, and later cite those requirements to deny benefits after the participant passes away.”
In light of this, and a prior similar enforcement action against another insurer in 2022, all sponsors, fiduciaries, administrators, and insurers of ERISA-covered group life, disability, or other insurance programs requiring insurability should verify the timeliness of insurability determinations made by their programs currently, and within the applicable statute of limitation period for claims.
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Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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 may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:
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Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
A cloud technology company is in hot water with the Equal Opportunity Commission (“EEOC”) for discriminating against a deaf applicant.
The EEOC sued Digital Arbitrage, Inc., doing business as Cloudbeds (“Cloudbeds”) an international, remote-first technology company, in U.S. District Court for the District of Massachusetts, charging it violated federal law by denying an applicant’s request for an accommodation in the interview process and by refusing to hire the applicant based on his disability. See, EEOC v. Digital Arbitrage, Inc. d/b/a Cloudbeds, Civil Action No. 1:23-cv-11856 (D. Mass., August 9, 2023).
According to the EEOC’s lawsuit, in January 2022, Peter St. John applied to work as a remote IT administrator at Cloudbeds, a position that involves providing internal IT assistance and support to Cloudbeds employees, and one for which St. John was well-qualified.
Upon review of St. John’s application, Cloudbeds advanced his candidacy to the interview stage. When St. John requested an accommodation based on his deafness and use of American Sign Language (ASL) to communicate, however, Cloudbeds simply denied his accommodation request and terminated his candidacy on the basis that verbal communication and hearing were job requirements for the position in a remote setting. Cloudbeds’ Chief Executive Officer (CEO) made the decision to deny St. John’s accommodation request based on his belief that due to the remote-first nature of the company, it would not extend an offer of employment for the position to a deaf candidate in any event.
The EEOC contends these actions violate the Americans with Disabilities Act (ADA), which requires employers engage with applicants to identify and provide reasonable accommodations and prohibits employers from discriminating against qualified applicants based on their disability.
The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks compensatory and punitive damages for the applicant and injunctive relief designed to remedy and prevent future disability discrimination.
“Companies are increasingly turning to remote work and are recruiting and hiring individuals remotely, said EEOC Regional Attorney Jeffrey Burstein. “The protections of the ADA apply with equal force to in-person and remote workplaces and their hiring processes.”
“The EEOC is committed to ensuring individuals who are deaf or hard of hearing enjoy equal employment opportunities in remote-first workplaces,” said Timothy Riera, acting director of the New York District Office. “This lawsuit seeks to vindicate the statutory rights of this applicant, who was denied the good faith interaction required by the ADA, as well as an employment opportunity on the basis of his deafness, and seeks to educate employers on the many available technologies that individuals who are deaf and hard of hearing utilize to effectively communicate via remote means.”
For More Information
We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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 your profile here.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.
Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.
A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here such as:
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Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Columbia, Mississippi-based Singley Construction Company, Inc., faces an Equal Employment Opportunity Commission (“EEOC”) lawsuit that charges the employer violated the Americans With Disabilities Act (“ADA”) by failing to accommodate an employee’s disability by allowed ng her to undergo dialysis in its workplace and then retaliating against her for requesting the accommodation and filing a charge with the EEOC.
The ADA requires covered employers to make reasonable accommodations for their employees’ disabilities unless the employer proves the accommodation is unreasonable, would impose an undue hardship, is prohibited by law or creates material safety threats to the employee or others. Additionally, the ADA prohibits disability discrimination and retaliation against employees for requesting accommodations, filing charges with the EEOC or Wang aging in other actions protected by the ADA.
In its suit filed in the U.S. District Court for the Southern District of Mississippi (Civil Action No. 2:23-cv-00106-KS-MTP) on July 31, 2023, the EEOC charges that Singley refused to accommodate its office manager’s end-stage renal disease by refusing the employee’s request to perform continuous ambulatory peritoneal dialysis (CAPD) on Singley’s premises so that she could maintain her full-time work schedule. According to the EEOC, this denial forced the office manager to lose around 50% of her work hours and pay as she had to regularly leave work to undergo her dialysis treatments. The EEOC further alleged that Singley constructively discharged the employee because of her disability and in retaliation for requesting a reasonable accommodation and for filing an EEOC charge.
The EEOC seeks monetary damages for the employee including back pay, compensatory damages, and punitive damages as well as injunctive relief designed to prevent such unlawful conduct in the future.
The EEOC contends the employer had a duty to allow her to undergo dialysis at work. “Employees on dialysis have rights under the ADA so that they can maintain their employment,” said Marsha Rucker, the regional attorney for the EEOC’s Birmingham District. “Employers would be well advised to recognize the right of workers to request reasonable accommodation for disabilities and to receive reasonable accommodation for disabilities absent undue hardship and direct threat. When businesses ignore these rights, the EEOC will hold them accountable.”
The lawsuit highlights the need for employers to use care when dealing with employees requesting accommodation in their workplaces.
For More Information
We hope this update is helpful. For more information about these or other health or other legal, management, or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.
Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress, and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.
A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community, and government leaders on health, severance, disability, pension, and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration, and defense of their organization’s workforce, employee benefit and compensation, safety, discipline, and other management practices and actions.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training, and education on leadership, governance, 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:
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 your profile here.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Out-of-state employers, insurers, employee benefit plan vendors, and other businesses registered to do business in Pennsylvania, Georgia, Iowa, Kansas, Minnesota, or another state that requires that out-of-state businesses consent to jurisdiction as a condition of their registration to do business in the state face a heightened risk of getting hauled into court in the consent to jurisdiction state following last month’s Supreme Court decision in Mallory v. Norfolk Southern Railway Company, 600 U. S. ____ (2023) even if none of the events giving rise to the lawsuit took place in that state.
The Mallory ruling arose from a state lawsuit filed in Pennsylvania state court seeking damages by Robert Mallory (“Mallory”) to recover damages for cancer the argued was caused by the negligence of his former employer, Norfolk Southern Railroad (“Norfolk”) pursuant to the Federal Employers’ Liability Act workers’ compensation scheme that permits railroad employees to sue for injuries caused by employer negligence. Mallory filed the suit in Pennsylvania, a jurisdiction with no real connection to the claims but noted for its favorability to plaintiffs even though he never worked for Norfolk in Pennsylvania. Mallory only worked for Norfolk in Ohio and Virginia, was a Virginia resident at the time of the suit, and only briefly lived in Pennsylvania after leaving Norfolk’s employment before returning to live in Virginia. Given the lack of connection of Pennsylvania to the parties and events giving rise to the claim, Virginia-based Norfolk Southern moved for the dismissal of the Pennsylvania lawsuit for lack of the requisite “substantial minimum contacts” generally required to support personal jurisdiction.
While courts generally recognize and enforce contractual agreements by a party to consent to jurisdiction, mere registration of an out-of-state business to do business in a state historically has not been recognized as creating the necessary “substantial minimum contacts” that the Due Process clause of the United States Constitution generally requires exist to provide the general personal jurisdiction that must exist for a state court to possess jurisdiction to decide a lawsuit over the out-of-state business under the Supreme Court precedent first articulated in International Shoe Co. v. Washington, 326 U. S. 310 (1945)
Because Pennsylvania is one of five states that currently requires all out-of-state businesses registering to do business in the State to consent to be sued in the state as a condition of registration, however, Mallory argued and the Supreme Court agreed in Mallory that Norfolk waived its ability to object to personal jurisdiction when it registered to do business in the Commonwealth.
In Mallory, the Supreme Court Majority ruled that any corporation registered to do business in a state which requires out-of-state businesses to consent to general personal jurisdiction waives its right to assert a Due Process challenge to jurisdiction in that state. Accordingly, businesses registering to do business in a consent-to-jurisdiction registration state should anticipate that their mere registration with the state likely subjects the business to the jurisdiction of courts in that state even if the business has not entered into a contractual agreement to submit to that state’s jurisdiction or otherwise engage in other actions establishing the required substantial minimum contacts to satisfy the International Shoe Due Process standards even if none of the events underlying the lawsuit took place in that state.
Given the Supreme Court’s Mallory decision, businesses should take into account the potential risks of being subjected to out-of-state litigation and regulation anytime the business expands operations into, registers to do business as an out-of-state business or signs an agreement consenting to jurisdiction into a state other than their primary place of business. As evidenced by Mallory, businesses generally should consider and take steps to manage the risks of allowing the creation of jurisdiction against their business in states other than the primary location in which the business operates. Businesses subject to jurisdiction in a state generally become subject to laws, regulations, and lawsuits in that state. Aside from added obligations and costs associated with being subject to the laws of another state and conducting litigation in an unfamiliar state, businesses subject to the jurisdiction of laws in courts in multiple states open the door for opposing parties to strengthen their position by foreign shopping. Like Mallory, disgruntled current or former employees, plan members, or other opposing parties in disputes may choose to file their lawsuit in the state with the laws, rules, or precedent most favorable to their position even where the dispute does not arise out of events occurring in the chosen state. Along with assessing when their organization may be subject to liability in other states, businesses should review their insurance coverage and applications to ensure that their insurance and other risk management arrangements take into account the added risks and liabilities that could arise from the additional state law jurisdiction. Consequently, businesses choosing to operate, to register to do business in a consent-to-jurisdiction state, or contractually to agree to submit to jurisdiction in any states should be prepared for the possibility that their organization could subject themselves to regulations, lawsuits, investigations and enforcement actions in that state.
More Information
We hope this update is helpful. For more information about these or other health or other legal, management, or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government, and community leaders to prepare for and deal with pregnancy, disability, and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about the preparation of workforce, health care, and other business and government policies and practices to deal with management in a wide range of contexts ranging from day-to-day operations, through times of crisis or change, and in response to complaints, investigations and enforcement.
Author of a multitude of other highly regarded publications and presentations on MHPAEA and other health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress, and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.
A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community, and government leaders on health, severance, disability, pension, and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration, and defense of their organization’s workforce, employee benefit and compensation, safety, discipline, and other management practices and actions.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training, and education on leadership, governance, 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 in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:
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 your profile here.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
A new race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) against commerce remanufacturer PRC Industries (PRC) warns other businesses of the increased need to use care to protect their own organizations against employment discrimination and retaliation charges under Title VII of the Civil Rights Act of 1964 and other federal laws given the heightened proactivity of the Biden Administration led EEOC in investigation and prosecuting these types of complaints.
PRC Race Suit
According to EEOC’s complaint in EEOC v PRC Industries, Inc. Corp, Case No. 3-27-2023 JJO-VSC, two Black workers, a married couple hired in January 2020 to work at PRC’s Reno, Nevada repair facility faced constant racial taunts and slurs, including the ‘n-word,’ from their supervisors, a brother and sister. The couple also observed the sibling supervisors routinely denigrating other Black employees due to their race. The complaint charges this conduct occurred openly, in front of co-workers and managers. Senior personnel, including a site manager and a vice president, failed to take adequate steps to curb the misconduct, despite being put on notice of the racial harassment. In late-May 2020, when the couple continued to report ongoing offensive treatment, they were fired via text message by one of the supervisors accused of harassment.
The EEOC charges this alleged conduct of tolerating racial harassment and firing the workers for complaining to the EEOC about it violated Title VII of the Civil Rights Act of 1964 which prohibits harassment due to race and requires employers to take prompt action to investigate and stop the misconduct after they receive notice of it.
The EEOC lawsuit in the U.S. District Court for the District of Nevada seeks compensatory and punitive damages, back pay and injunctive relief designed to prevent such discrimination in the future.
EEOC Enforcement Warn Other Businesses
The EEOC press release on the lawsuit warns other businesses and their leaders against committing or tolerating similar or other prohibited discrimination or retaliation.
“Leaders set company culture by the language and conduct they choose to tolerate as well as the behavior they model,” said EEOC San Francisco District Director Nancy Sienko. “Federal civil rights laws mandate that employers act promptly and effectively to stop race-based harassment, and the EEOC will hold employers accountable if they fail to meet their obligations.”
The PRC lawsuit is one of the latest in an accelerating civil rights and other employment discrimination and retaliation investigations, charges, and lawsuits the EEOC is taking in response to the proactive civil rights agenda of the Biden Administration.
In pursuit of its mission to advance equal employment opportunity, the EEOC focused on several major areas during FY 2022, including aggressive educational outreach, addressing systemic discrimination, advancing racial justice in the workplace, enforcing pay equity, and addressing the use of artificial intelligence in employment decisions.
Among other things, the EEOC 2022 Annual Performance Report (APR) (“2022 Data”) shows EEOC has seen an uptick in complaints filed by workers. In Fiscal Year (“FY”) 2022, the agency received 73,485 new discrimination charges, which represents an increase of almost 20% when compared to the previous fiscal year. The agency also handled more than 475,000 calls —an 18% increase from FY 2021—and managed 32% more emails from the public than the previous year.
To help manage the increased demand and strengthen the agency’s ability to prevent and remedy employment discrimination, the EEOC specifically focused on growing its workforce to meet growing requests for its assistance by filling 352 new positions and 500 total staff vacancies in FY 2022, the majority of which were in frontline positions.
The effects of this proactivity is confirmed by the 2022 EEOC enforcement data. The agency marked several significant accomplishments in FY 2022.
Obtained more than $513 million in monetary benefits for victims of discrimination, an increase from the previous fiscal year;
Resolved over 65,000 charges of discrimination.
Meanwhile in the federal sector, the EEOC:
Conducted more than 3,000 free outreach events reaching almost 220,000 individuals.
Resolved 9,336 hearings;
Recovered more than $132 million for federal workers and applicants; and
Significantly reduced the federal hearing inventory by 25% from FY 2021 to FY 2022
EEOC appears to be continuing its aggressive enforcement into 2023. In March, 2023 alone, for instance, the EEOC has announced the following discrimination and retaliation actions
These and other developments, send a strong message to businesses and business leaders to use their compliance and employment, discrimination and retaliation compliance, and risk management efforts. No b
In the face of these developments, businesses and their leaders should move quickly to audit, their current compliance and risk as well as manage their exposures.
In assessing pre-existing risk, businesses should take in to count the likelihood that compliance and operations may have been disrupted during the COVID healthcare emergency. Additional difficulties in investigating and defending risk also may arise because of turnover in management or other staffing. In light of these and other challenges, many businesses may wish to consider acquiring or increasing their employment practices liability as a backstop against these risks.
More Information
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.
A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here.
IMPORTANT NOTICE ABOUT THIS COMMUNICATION
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers whose policies disqualify applicants from employment based on past Marijuanna convictions need to prepare to respond to applicants presenting certificates of pardon of their prior federal conviction of simple Marijuanna conviction received under President Biden’s October 6, 2023 Presidential Proclamation on Marijuana Possession.
Biden Marijuanna Pardons
The Proclamation provided a blanket pardon for all prior federal and D.C. (but not state) offenses of simple possession of marijuana.
Those who were pardoned on October 6, 2022, are eligible for a certificate of pardon. Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on October 6, 2022. Those convicted of state marijuana offenses do not qualify for the pardon.
On March 3, 2023, the Justice Department announced the application process for issuing certificates of the pardons to pardoned individuals. This process allows pardoned individuals to get prof of their pardons to present to employers and others. Consequently health care and other businesses should prepare to respond to applicants presenting these certificates.
When he made the pardon proclamation, President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon. On March 3, 2023, the Justice Department issued an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.
The online application available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on October 6, 2022, for simple possession of marijuana.
President Biden said when making his proclamation he intended the pardons to “help relieve the consequences arising from these convictions.” The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities such as restrictions on the right to vote, to hold office or to sit on a jury that are imposed because of the pardoned conviction. Proofs of pardon also may help those pardoned to obtain licenses, bonding or employment.
Potential Employer Challenges
The pardons are likely to create concerns for health care and other employers who currently disqualify applicants from eligibility for employment based on drug related criminal conditions where the employer remains subject to statutory, regulatory, contractual or other requirements prohibiting employment of workers with prior or current history of drug offenses or use.
As a starting point, employers should carefully review their own existing policies as well as any statutory, regulatory contractual requirements applicable to their workforce to assess the implications of the pardons on the employment eligibility of a pardoned worker. Ambiguities are likely to arise under many policies, particularly where a hugyirunof drug use or possession is disqualifying without a requirement of a conviction.
Employers contemplating continuing to disqualify pardoned applicants for safety or other reasons probably should seek the advice of legal counsel. Some pardoned applicants might argue an employer’s reliance on a pardoned criminal drug conviction constitutes prohibited discrimination based on a history of prior drug dependence that violates the Americans With Disabilities Act or other discrimination laws. Statements made by President Biden and others within the Administration suggest the Equal Employmrnt Opportunity omission might support these or similar arguments in furtherance of promotion if President Biden’s policy of facilitating opportunities for employment for individuals recovering from substance abuse.
Employers also may struggle with equity questions raised by the pardoning of federal convicts but not those with state convictions.
Employers should monitor Equal Employment Opportunities Commission and other guidance and seek advice of experienced legal counsel to develop and administer hiring policies to mitigate potential exposures.
More Information
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.
A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends health care, education, DOT, government contractors and a wide range of other employers about drug testing and drug free workplace, discrimination, safety and other employment, benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.
Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here.
IMPORTANT NOTICE ABOUT THIS COMMUNICATION
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
The Equal Employment Opportunity Commission (“EEOC”) is suing a nonprofit providing programs for people with disabilities and others to build self-reliance through educational, therapeutic, and employment services for violating the Americans With Disabilities Act (“ADA”) by refusing to accommodate an employee with a degenerative hip impairment and instead fired her.
The ADA prohibits employers from refusing to provide reasonable accommodations to employees or applicants with a disability unless doing so would constitute an undue hardship.
According to the EEOC’s suit filed today (March 3, 2023) against Innovative Services NW (ISNW),Carly Romero earned praise as a valued employee and strong performer by high level managers during the seven years she worked as a janitor in the Innovative Services NW (ISNW), Janitorial Services Program in Vancouver, Washington.
In November 2019, Romero attempted to return to work with a doctor’s release allowing her to resume janitorial activities, except for wearing a backpack vacuum. As a reasonable accommodation, Romero asked to use an upright vacuum instead. The EEOC’s investigation found that even though ISNW had permitted other janitors to use upright vacuums at some customer sites, ISNW refused Romero’s repeated requests to return to work. Claiming “there would be too much risk to return [Romero] to work without a 100% release,” ISNW placed Romero on unpaid leave, then fired her on January 21, 2020.
The EEOC charges these actions by ISNW violated the ADA. “Ms. Romero simply asked to return to work using an upright vacuum, equipment already used by other employees. Instead, ISNW chose to fire her,” said Elizabeth Cannon, director of EEOC’s Seattle Field Office. “Under the ADA, an employer cannot deny an employee with a disability the opportunity to work when there is a readily available accommodation that would allow her to perform her job.”
After attempting to negotiate a settlement failed, the EEOC filed its lawsuit, EEOC v. Innovative Services NW, Civil Number2:23-CV-00295, in U.S. District Court for the Western District of Washington seeking back pay, compensatory and punitive damages, and injunctive relief designed to prevent similar discrimination in the future. If the EEOC prevails ISNW can expect to be ordered to pay attorneys’s fees as well.
More Information
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.
A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends businesses on FLSA, CAS, SCA, Davis-Bacon, Equal Pay Act and other wage and hour, compensation and benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.
Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here.
IMPORTANT NOTICE ABOUT THIS COMMUNICATION
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
New Jersey McDonald’s franchisee JDKD Enterprises, L.P will pay $100,000 to settle a disability discrimination lawsuit arising from its termination of an autistic employee filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). The lawsuit warns other employers against failing to reasonably accommodate or otherwise discriminating against individuals with autism or other disorders who can perform essential job functions with or without reasonable accommodation.
The EEOC’s lawsuit charged JDKD Enterprises fired an employee who worked at several McDonald’s restaurants for 37 years because of his autism spectrum disorder. The employee’s per-formance remained excellent throughout his decade-long employment at the Deptford, New Jersey McDonald’s, receiving numerous awards and accolades acknowledging his excellent job performance. However, two months after JDKD Enterprises, L.P., assumed ownership of this McDonald’s, it abruptly terminated the grill cook.
The EEOC argued the termination of the employee due to his autism disorder violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities and prohibits employers from taking adverse employment actions based on an individual’s disability or need for accommodations. After first attempting to reach a pre-litigation settlement through its voluntary conciliation process, the EEOC filed suit (Civil Action No. 1:21-cv-16441) in U.S. District Court for the District of New Jersey,
In addition to paying the former employee $100,000 in monetary relief, the two-year consent decree settling the suit provides for systemic relief intended to prevent further disability discrimination, periodic reporting to the EEOC, and training for all management personnel in responding to reasonable accommodation requests.
“The ADA protects people with autism spectrum disorder, and the EEOC is absolutely committed to aggressively enforcing the ADA requirement that employers reasonably accommodate their workers with disabilities absent undue hardship,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office in the EEOC announcement of the settlement.
In the EEOC announcement of the settlement, quotes EEOC Philadelphia District Director Jamie Williamson as saying, “Ensuring that all employees, especially management, are properly trained regarding their obligations under the ADA – including their duty to engage in good faith, diligent communications with their disabled employees about accommodation needs – is a smart business practice and the right thing to do. Leadership means stewardship of an organization’s most valuable asset – its people.”
The EEOC suit and statements warn other organizations dealing with employees with autistic spectrum or other disabilities not to discriminate and to be prepared to defend the adequacy of their actions regardless of whether choosing to allow or deny accommodation.
For Help With Comments, Investigations Or Other Needs
If your organization would like to learn more about the concerns discussed in this update or seeks assistance auditing, updating, administering or defending its human resources, compensation, benefits, corporate ethics and compliance practices, or other performance related concerns, contact management attorney and consultant Cynthia Marcotte Stamer.
An attorney Board Certified in Labor & Employment Law by Texas Board of Legal Specialization, Ms. Stamer is recognized for work helping organizations management people, operations and risk as a Fellow in the American College of Employee Benefit Counsel, a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER™” in Labor and Employment Law and Health Care Law; a “Best Lawyers” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law.”
For 35 years, Ms. Stamer’s work has focused on advising and assisting businesses and business leaders with these and other employment and other staffing, employee benefit, compensation, risk, performance and compliance management and other operational solutions and concerns. Her experience includes helping management both manage performance and manage legal risk and compliance. While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, leave, and other labor and employment laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor, Department of Justice, SEC, Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, and other federal and state regulators. Ms. Stamer also speaks, coaches management and publishes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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Travis Nicholson is taking over as the new Dallas District Director of the Equal Employment Opportunity Commission (“EEOC”). The EEOC announced Nicholson’s appointment to head up the Dallas District on August 30,2022.
As Director of the Dallas District Nicholson will oversee and manage the EEOC’s work in more than 200 counties in north, central, and west Texas, including the district office and its approximately 100 employees. He will also supervise the EEOC’s work with several of the agency’s state and local Fair Employment Practices Agencies that work with the EEOC on employment discrimination in Texas. A former compliance officer with the U.S. Department of Labor Office of Federal Contract Compliance Programs U.S. Army veteran, Nicholson began his career with the EEOC in 2009 as a bilingual investigator in its Detroit Field Office, investigating charges, including systemic and class matters, and conducting outreach to underserved communities and in line with the agency’s Youth at Work initiative. He then served as the Charlotte District Office’s outreach and education coordinator and a program analyst in the Office of Field Programs before becoming Houston’s deputy director in 2017. As the deputy district director in Houston, Nicholson was responsible for day-to-day operations and led process improvements and efficiencies in charge management, systemic investigations, and legal enforcement interaction
More Information
We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefits Counsel repeatedly recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” by LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law and among the “Best Lawyers In Dallas” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for 30+ years of advising, representing and defending domestic and international public, closely held and government organizations on workforce, employee benefits, internal controls and governance, and other risk management, compliance and government relations concerns as well as her coaching, scholarship, training and legislative and public affairs advocacy on these and related areas.
Ms. Stamer helps health industry and other organizations and their management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 30+ year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns. She also represents and defends clients in investigations, audits, enforcement actions and other dealings with the the Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and a multitude of federal, state, and locate agencies, state attorneys’ general and other federal and state agencies, public and private credentialing, licensing and accreditation bodies, as well as conducts and counsels clients on private litigation, employment and other services disputes, regulatory and public policy advocacy, training and discipline, enforcement and other strategic and operational concerns.
Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.
Ms. Stamer also is deeply involved in helping to influence workforce, health care, pension, social security, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and 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 Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. 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 also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, 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. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, 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.
Ms. Stamer also shares her leadership through her extensive involvement in many professional, community and civic organizations. Currently, she serves as Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR and a representative for its Annual Agency Meeting with the EEOC, Chair of the ABA Intellectual Property Section Law Practice Management Committee, Vice Chair of the ABA International Section Life Sciences Committee, Chair-Elect of the ABA Tort & Insurance Section (TIPS) Medicine and Law Committee, RPTE Section Employee Benefits Committee Welfare Plan Chair, and in various other projects and capacities. She also previously has served as an ABA Joint Committee on Employee Benefits Council Representative, Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation Group, the Society for Human Resources Management Region IV Board Chair and National Consultant’s Board Member; am Editorial Advisory Board Member and author for HR.com, Insurance ThoughtLeaders, BNA CD-Rolm, and Employee Benefits News; the Alliance for Healthcare Excellence Board President, Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, on the North Texas United Way Long Range Planning Committee Member, as a Board Member and Compliance Chair of the National Kidney Foundation of North Texas and many others.
Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. These include hundreds of highly regarded articles and workshops on health and other benefits, workforce, health care and insurance concerns.
For more information about these requirements, Ms. Stamer or her experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here.
IMPORTANT NOTICE ABOUT THIS COMMUNICATION
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers should put managing legal and operational demands for mental health accommodation for youth and other workers and their risk management agenda this year.
The Surgeon General’s recent release of an advisory report, “Protecting Young People’s Mental Health,” is one of a series of studies and guidance that the federal government has released in recent months on the impacts of the pandemic on mental health issues. The recently released Surgeon General report discusses impacts of the pandemic on mental health needs of young people. In connection with these findings, the United States Department of Labor is inviting employers and other interested persons to respond to a brief questionnaire from the National Youth Employment Coalition to help understand how workforce providers are grappling with this crisis. The DOL says this input will provide insight into the youth employment field’s current capacity to screen, connect, and serve youth with mental health needs. however, employers contemplating responding should note that the survey template requests that they respond it be identified by providing their name and other information. It is not clear whether the provision of this information may be used to target the employer for subsequent scrutiny.
The deadline for responding to the survey is March 11, 2022. To learn more, see here.
More Information
Want to know more? The author of this update, employment lawyer Cynthia Marcotte Stamer, conducted a briefing on these and other federal COVID-19 vaccination and other workforce requirements as a panelist on the “COVID-19 Vaccination Mandates & Incentives” virtual seminar the American Bar Association Joint Committee on Employee Benefits hosted on November 12, 2021. To purchase a recording of the program, see here. For information about obtaining Ms. Stamer’s slides, email here.
Solutions Law Press, Inc. also invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. 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 your profile here. For specific information about the these or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
About the Author
For help developing, administering or defending your organization’s workforce, employee benefits, compensation or compliance practices, contact the author. Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com.
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Earlier this week, the Internal Revenue Service (“IRS”) announced that employee benefit plan participants that already took a required minimum distribution (RMD) in 2020 from certain retirement accounts now has the opportunity through August 31, 2020 to roll those funds back into a retirement account following the Coronavirus Aid, Relief, and Economic Security (CARES) Act RMD waiver for 2020. The announcement of this relief covers one of a long and growing list of special tax and other COVID-19 responsive special rules and requirements that may change requirements, provide special relief or both for businesses and individuals that every business leader and individual should carefully monitor and respond to appropriately.
Retirement Plan Rollover Relief
On July 23, 2020, the IRS announced its extension of the 60-day rollover period for any RMDs already taken this year to August 31, 2020 to give taxpayers time to take advantage of this opportunity in Notice 2020-51 (PDF). The Notice also answers questions regarding the waiver of RMDs for 2020 under the Coronavirus Aid, Relief, and Economic Security Act, known as the CARES Act.
The CARES Act enabled any taxpayer with an RMD due in 2020 from a defined-contribution retirement plan, including a 401(k) or 403(b) plan, or an IRA, to skip those RMDs this year. This includes anyone who turned age 70 1/2 in 2019 and would have had to take the first RMD by April 1, 2020. This waiver does not apply to defined-benefit plans.
In addition to the rollover opportunity, an IRA owner or beneficiary who has already received a distribution from an IRA of an amount that would have been an RMD in 2020 can repay the distribution to the IRA by August 31, 2020. The notice provides that this repayment is not subject to the one rollover per 12-month period limitation and the restriction on rollovers for inherited IRAs.
The notice provides two sample amendments that employers may adopt to give plan participants and beneficiaries whose RMDs are waived a choice as to whether or not to receive the waived RMD.
Other COVID-19 Tax Rules & Relief
The guidance and relief in Notice 2020-51 highlights only one of a long list of special COVID-19 associated tax rules and relief that could apply to a business, its employees or employee benefit plan participants or both including the following:
Along with these tax rules, businesses and their employees also may be impacted by a broad range of special federal and state labor and employment and other rules adopted in response to the continuing COVID-19 health care emergency and its fallout. Businesses and their leaders should carefully review and monitor these and other COVID-19 specific rules to ensure that their businesses don’t trigger unanticipated liability by failing to meet critical requirements or to ensure that they take full advantage of all available relief.
More Information
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years legal and operational management work, coaching, public policy and regulatory affairs leadership and advocacy, training and public speaking and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally on an demand, special project and ongoing basis with health industry, health plan and insurance and other businesses of all types, government and community organizations and their leaders, spoken and published extensively on workforce and other services, compensation and benefits, and related tax; insurance; workers’ compensation and occupational disease; business reengineering, disaster and distress; and many other management concerns.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Vice Chair of the ABA International Section Life Sciences Committee, and the ABA RPTE Employee Benefits & Other Compensation Group and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer has extensive experience advising, representing, defending and training health care providers, health plans and insurers, employers, community organizations and others about HIPAA and other privacy concerns and has published and spoken extensively on these concerns.
Her involvement with HIPAA and other privacy and data concerns has taken place as part of her more than 30 years involvement working with with public and private health industry, health insurance and other employers and organizations of all sizes, employee benefit plans, insurance and financial services, health industry and a broad range of public and private domestic and international business, community and government organizations and leaders on pandemic and other health and safety, workforce and performance preparedness, risks and change management, disaster preparedness and response and other operational and tactical concerns throughout her adult life. A former lead advisor to the Government of Bolivia on its pension project, Ms. Stamer also has worked internationally and domestically as an advisor to business, community and government leaders on crisis preparedness and response, privacy and data security, workforce, health care and other policy and enforcement, as well as regularly advises and defends organizations about the design, administration and defense of their organizations workforce, employee benefit and compensation, safety, discipline and other management practices and actions.
Ms. Stamer also serves in leadership of a broad range of professional and civic organizations and shares insights and thought leadership through her extensive publications and public speaking. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here such as:
While most COVID-19 test results won’t draw the widespread coverage and public interest that Elliott’s diagnosis did, businesses generally and health care providers, health plans, health care clearinghouses specifically need to recognize that coverage of the Elliott outrage will heighten awareness and therefore their need to properly handle and protect COVID-19 or other infectious disease and other testing, diagnosis, treatment and other medical and disability information collected or encountered in the course of their operation through the current COVID-19 health care emergency and otherwise in their own organizations.
ADA Responsibilities of Employers In Handling Medical Information
Protecting COVID-19 testing and other medical information isn’t just a concern for covered entities and their business associates, however. Businesses that are not covered entities also generally should use care in their collection, use, protection and disclosure of COVID-19 testing and other medical information to mitigate their potential liability under the disability discrimination requirements of the ADA, the Rehabilitation Act and other laws. For instance, along with prohibiting employers covered by the ADA from discriminating against qualified individuals with disabilities and requiring those employers to provide reasonable accommodations to such employees, the ADA also regulates the ability of covered employers to perform or require medical testing and imposes specific medical confidentiality requirements on all covered employers. See e.g., What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
The ADA’s medical confidentiality requirements dictate that covered employers maintain medical information and records about employees and applicants in separate, confidential files. Covered employers are responsible for maintaining the confidentiality of medical information and records and cannot disclose it without authorization from the subject employee except under the specific conditions allowed by the ADA.
EEOC guidance provided in its publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act as updated as of March 19, 2020 emphasizes that covered employers remain accountable for complying with the requirements of the ADA and Rehabilitation Act during the current COVID-19 health care emergency and other pandemics.
While the EEOC Technical Assistance Questions and Answers in its publication What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
Technical Assistance Questions and Answers as updated on June 11, 2020 recognizes temperature checks and certain other COVID-19 inquiries to screen for COVID-19 exposure or infection might be permitted under the safety exception to the ADA during the current COVID-19 health care emergency, that and other EEOC guidance makes clear that covered employers remain responsible for ensuring that the ADA medical confidentiality requirements are met with regarding to testing and related medical information. As a result, all ADA-covered employers generally and health care employers specifically are urged to use care both in the administration and collection of information regarding COVID-19 testing and diagnosis, and the protection of the confidentiality of COVID-19 and other medical information and records collected in the course of administering employment, safety, medical leave or other absence or other operations throughout the COVID-19 health care emergency.
Added HIPAA & Texas HIPAA Concerns For Health Plans & Other HIPAA Covered Entities
Assuming that the disclosure of Elliott’s information is traced to a testing provider, laboratory or other health care provider, health plan or insurer, health care clearing house subject to HIPAA (“covered entity”), a service provider acting as a business associate to a covered entity, or a member of their workforce, the unauthorized release of Elliott’s test results, that he underwent the testing, or other medical information, Elliott’s complaint about a possible HIPAA violation could be well-founded as both HIPAA and the somewhat broader provisions of the Texas Medical Privacy Act (“Tex-HIPAA”) (hereafter collectively the “HIPAA Laws”) both generally prohibit unauthorized disclosure of protected medical information such as his COVID-19 test or test results to the media.
The COVID-19 test results and of “individually identifiable personal health information” about Elliott and his encounter created, used, access or disclosed by the testing facility or other health care provider, a health plan, health care clearinghouse (“covered entity”) or a member of its workforce or a subcontractor acting as a business associated qualify as “protected health information subject to HIPAA’s privacy, security, breach and privacy rights protections of HIPAA and Tex-HIPAA.
The HIPAA and Tex-HIPAA prohibition against unauthorized disclosure of protected health information to the media stem from the HIPAA Laws’ broader requirement that covered entities and business associates affirmatively safeguard protected health information against unauthorized use, access or disclosure and sweeping prohibition against their disclosing or allowing the disclosure of protected health information without a HIPAA-compliant authorization except under the narrow and specifically delineated exceptions identified in the rule, none of which appear relevant to the media disclosure objected to by Elliott from the currently available public information.
Both HIPAA Laws expressly prohibit unauthorized disclosure of protected health information by covered entities or their business associates except under the specifically detailed conditions specified in one or more exceptions to this general rule. Assuming all relevant conditions to qualify for the exception are met, HIPAA does allow covered entities and business associates treatment, payment, operations, public health activities or another situation meeting all applicable requirements of an express exception to the HIPAA prohibition against disclosure.
The federal agency primarily responsible for the implementation and enforcement of HIPAA, the Department of Health & Human Services Office of Civil Rights (“OCR”) regulatory guidance and enforcement history clearly communicates OCR’s view that covered entities or business associates violate HIPAA by disclosing protected health information to the media or other third parties without first obtaining a HIPAA-compliant authorization from the subject of the information except under the specific circumstances described in an applicable Privacy Rule exception.
In its May 5, 2020 Guidance on Covered Health Care Providers and Restrictions on Media Access to Protected Health Information about Individuals in Their Facilities (“5/5 Guidance”), for instance, OCR specifically reminded HIPAA covered health care providers that the HIPAA Privacy Rule does not permit them to give media and film crews access to protected health information including access to facilities where patients’ protected health information will be accessible without the patients’ prior authorization. has made clear that testing facilities and other health care providers generally remain accountable for complying with the HIPAA Privacy Rule that prohibits unauthorized use, access or disclosure of test results and other protected health information except as specifically allowed in the applicable HIPAA Law.
The 5/5 Guidance specifically states, “The COVID-19 public health emergency does not alter the HIPAA Privacy Rule’s existing restrictions on disclosures of protected health information (PHI) to the media.’ Additionally, it states confirmed that even during the current COVID-19 public health emergency, covered health care providers remain required to obtain a valid HIPAA authorization from each patient whose PHI will be accessible to the media before the media is given access to that PHI. In this regard, the 5/5 Guidance states, As explained in prior guidance,1 HIPAA does not permit covered health care providers to give the media, including film crews, access to any areas of their facilities where patients’ PHI will be accessible in any form (e.g., written, electronic, oral, or other visual or audio form), without first obtaining a written HIPAA authorization from each patient whose PHI would be accessible to the media. 2 Additionally, covered health care providers may not require a patient to sign a HIPAA authorization as a condition of receiving treatment. The guidance clarifies that masking or obscuring patients’ faces or identifying information before broadcasting a recording of a patient is not sufficient, as a valid HIPAA authorization is still required before giving the media such access. Additionally, the guidance describes reasonable safeguards that should be used to protect the privacy of patients whenever the media is granted access to facilities.
OCR’s positions on disclosures to the media in the 5/5 Guidance reaffirm OCR’s longstanding interpretation and enforcement of HIPAA as prohibiting disclosures of PHI and media access to areas where patients or their protected health information might be visible or accessible is long standing.
In June, 2013, for instance, OCR sent a clear message to covered entities and business associates not to make unconsented disclosures of protected health information to or allow media access to areas where patients or their protected health information could be accessed or observed when it required Shasta Regional Medical Center (SRMC) to pay $275,000 to resolve OCR HIPAA charges stemming from SRMC’s unauthorized disclosure of protected health information to multiple media outlets as part of a public relations effort to mitigate damage from fraud and misconduct allegations made against it by the patient. See HIPAA Sanctions Triggered From Covered Entity Statements To Media, Workforce.
OCR subsequently reinforced its warning to covered entities and business associates about unauthorized disclosures of protected health information in a 2016 Frequently Asked Question (Media FAQ) that discussed covered entities HIPAA responsibilities when dealing with the media. The Media FAQ was issued in conjunction with OCR’s collection of its $2.2 million settlement with New York-Presbyterian Hospital and a series of other settlements totaling $999,000 from three other health care providers accused of violating HIPAA by allowing media personnel into treatment or other areas where patients or patient protected health information was accessible without first obtaining a HIPAA compliant written authorization from each patient or other subject present or whose protected health information otherwise would be accessible to the media. See $999K Price Hospitals Pay To Settle HIPAA Privacy Charges From Allowing ABC To Film Patients Without Authorization.
In the Media FAQ, OCR stated HIPAA required covered entities to obtain prior written authorization before disclosing protected health information to the media or allowing media to film or access exam rooms or other areas where patients or protected health information could be observed or accessed. The Media FAQ also stated that masking or blurring the identity of the patient or their specific information was not an adequate substitute for written authorization and that covered entities also were responsible for ensuring that reasonable safeguards were in place to protect against impermissible disclosures or to limit incidental disclosures of other PHI in areas where media is allowed access where prior authorization has not been obtained. While stressing the importance of compliance with these requirements, however, the Media FAQ clarified that the HIPAA Privacy Rule does not require health care providers to prevent members of the media from entering areas of their facilities that are otherwise generally accessible to the public like public waiting areas or areas where the public enters or exits the facility In addition, the Media FAQ states a health care provider or other Covered Entity also highlighted certain other limited circumstances where HIPAA might allow limited disclosure of protected health information to the media in accordance with specific provisions of the Privacy Rule about an incapacitated patient when in the patient’s best interest; or disclose a patient’s location in the facility and condition in general terms that do not communicate specific medical information about the individual to the media or any other person any person where the individual has not objected to his information being included in the facility directory and the media representative or other person asks for the individual by name.
In the intervening years, OCR periodically has issued additional reminders to covered entities about HIPAA’s general prohibition against unconsented disclosures to the media as well as sanctioned harshly various covered entities for violating these prohibitions. In 2017, OCR required the largest not-for-profit health system in Southeast Texas, Memorial Hermann Health System (MHHS), to pay OCR $2.4 million to settle charges it violated HIPAA by issuing a press release to the media that shared the name and other protected health information about a patient suspected of using a fraudulent insurance card to obtain care at a clinic without the patient’s prior HIPAA-compliant authorization. While OCR concluded a report made MHHS made to law enforcement about the patient was allowable under the Privacy Rule, OCR found MHHS violated the Privacy Rule by issuing the press release disclosing the patient’s name and other PHI without authorization from the patient and also by failing to timely document the sanctioning of its workforce members for impermissibly disclosing the patient’s information. See $2.4M HIPAA Settlement Warns Providers About Media Disclosures Of PHI.
Minimize Exposures By Preventing Unauthorized Media & Other Disclosures
Even without Mr. Elliott’s outrage heightening awareness about HIPAA’s prohibitions against unauthorized disclosures of protected health information to the media, the recent warning about HIPAA’s restrictions on media disclosure and access to protected health information and patient treatment areas in OCR’s 5/5 Guidance alone should serve as a strong incentive for covered entities and business associate promptly to reverify that the adequacy of their current policies, practices and training to prevent inappropriate media disclosures of protected health information and otherwise defend their compliance with OCR’s interpretation of HIPAA’s requirements for dealing with the media. Predictable heightened patient and public awareness and expectations about these and other HIPAA responsibilities fueled by the widespread media coverage of Mr. Elliott’s COVID-19 test results and his outrage about the unauthorized disclosure of his test results makes it more important than ever that health care providers and other covered entities and business associates take steps to prepare to respond to foreseeable complaints and questions by other patients, their families and others.
As part of these efforts, most covered entities and business associates may want to consider, at minimum, reconfirming the adequacy and understanding of their current media and other disclosure policies and practices, as well as sending strategic communications to their business associates and members of their workforce reminding them of the covered entity’s policies regarding media access and disclosures.
As part of these activities, covered entities should consider conducting a well-documented assessment of their current policies, practices and workforce training on disclosure of information to the media and other parties generally, as well as policies on allowing media or other parties to enter, film, photograph or record within their facilities or otherwise disclosing or allowing media access to their facilities. Along with these efforts, most covered entities also may want to consider also reminding workforce members that their patient privacy responsibilities also requires that they not share or discuss patient protected health information, film, photograph, or otherwise record, patients or areas where patients or patient protected health information is or might be present without prior written consent of the patient and the consent of their organization.
Since covered entities and members of their workforce also are likely to be subject to other statutory, ethical, contractual or other privacy or confidentiality requirements beyond those imposed by the HIPAA Laws such as medical confidentiality duties applicable to physicians and other health care providers under medical ethics, professional licensure or other similar rules, contractual responsibilities, as well as common law or statutory privacy, theft of likeness or other statutory or common law tort claims and exposures. Covered entities and business associates generally should consider whether other steps are advisable to manage these exposures along with managing their HIPAA Law compliance.
Given the high incidence of COVID-19 exposure and infection within their workplace, covered entities, business associates and other employers should use care fulfill their HIPAA Law relevant employment law confidentiality responsibilities when dealing with testing or other medical information about employees. In this respect, along with any HIPAA Law obligations that a covered entity or business associate has in handling medical information about a patient who also is an employee or family member of an employee, covered entities also should use care to ensure that medical confidentiality requirements of the Americans With Disabilities Act (“ADA”) and other applicable employment laws are met.
Since this analysis and review in most cases will result in the uncovering or discussion of potentially legally or politically sensitive information, Covered Entities should consider consulting with or engaging experienced legal counsel for assistance in structuring and executing these activities to maximize their ability to claim attorney-client privilege or other evidentiary protections against discovery or disclosure of certain aspects of these activities.
Finally, covered entities should keep in mind that HIPAA and other medical privacy compliance and risk management is an ongoing process requiring constant awareness and diligence. Consequently, covered entities and business associates also should use care both to monitor OCR and other regulatory and enforcement developments as well as exercise ongoing vigilance to monitor and maintain compliance within their organizations.
More Information
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years legal and operational management work, coaching, public policy and regulatory affairs leadership and advocacy, training and public speaking and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally on an demand, special project and ongoing basis with health industry, health plan and insurance and other business, government and community organizations and their leaders, spoken and published extensively on HIPAA and other privacy and data security concerns, as well as other health care and health benefits; human resources, employee benefits and other workforce and services; insurance; workers’ compensation and occupational disease; business reengineering, disaster and distress; and many other management concerns.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Vice Chair of the ABA International Section Life Sciences Committee, and the ABA RPTE Employee Benefits & Other Compensation Group and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer has extensive experience advising, representing, defending and training health care providers, health plans and insurers, employers, community organizations and others about HIPAA and other privacy concerns and has published and spoken extensively on these concerns.
Her involvement with HIPAA and other privacy and data concerns has taken place as part of her more than 30 years involvement working with with public and private health industry, health insurance and other employers and organizations of all sizes, employee benefit plans, insurance and financial services, health industry and a broad range of public and private domestic and international business, community and government organizations and leaders on pandemic and other health and safety, workforce and performance preparedness, risks and change management, disaster preparedness and response and other operational and tactical concerns throughout her adult life. A former lead advisor to the Government of Bolivia on its pension project, Ms. Stamer also has worked internationally and domestically as an advisor to business, community and government leaders on crisis preparedness and response, privacy and data security, workforce, health care and other policy and enforcement, as well as regularly advises and defends organizations about the design, administration and defense of their organizations workforce, employee benefit and compensation, safety, discipline and other management practices and actions.
Ms. Stamer also serves in leadership of a broad range of professional and civic organizations and shares insights and thought leadership through her extensive publications and public speaking. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources available here such as:
Lanier Technical College, a unit of the Technical College System of Georgia, will pay $53,000 in back pay and compensatory damages and revise its policies and procedures to settle a Justice Department lawsuit alleging the College violated the Americans with Disabilities Act (ADA) by terminating along-time College employee based on her multiple sclerosis filed in the Northern District Of Georgia on November 4, 2019. In addition to this disability discrimination allegation, the Justice Department complaint also alleges the removed the employee from the teaching schedule for an entire school semester, thus reducing her hours and pay to zero, due to her multiple sclerosis after the employee took three days of sick leave one summer. The lawsuit and its settlement reminds academic health care and other public and private employers about the need to use appropriate care to avoid inappropriate discrimination against individuals with disabilities in employment and other operations.
The College had employed the terminated employee as a part-time emergency medical technician (EMT) lab assistant for over three years before the events prompting the lawsuit took place. The essential functions of her job involved assisting instructors in the classroom and in the lab, and perform “check offs” to authorize and certify that the students mastered particular technical competencies (e.g., properly taking blood pressure, starting a patient’s I.V., assessing a patient’s vital signs). In addition to her employment with the College, the former employee also worked as a paramedic for an unrelated employer. She continued to work as a full-time paramedic for nearly three years after the College terminated her employment as a part-time lab assistant.
Less than a year into her employment at the College, the former employee was diagnosed with multiple sclerosis (MS) in 2010. Shortly after her diagnosis the former employee notified among others, notified the Director of the Lanier Paramedicine Technology (PMT) Department, Sam Stone, of her condition and Mr. Stone subsequently discussed her MS and treatment with her over the course of her employment with the College. According to the Justice Department complaint, the former employee did not require any reasonable accommodations for her disability, remained qualified to perform the essential functions of the part-time lab assistant job, and did so successfully until College discharged her or otherwise altered her compensation, terms, conditions, or privileges of employment.
In 2012, the former employee assisted with classes and labs taught by Instructor Andy Booth. Instructor Booth managed the work schedule for all the part-time EMT lab assistants who assisted with his classes, including that of the former employee. This included the ability to remove lab assistants from any shifts they requested. Director Stone then completed a final review of the semester and approved the schedule and any changes to it.
During the summer of 2012, the former employee had to miss her assigned workdays on two or three occasions due to her MS and its treatment. She also was on disability leave from her paramedic job for a period during that summer, returning to work full-time in early August. Following these absences, Instructor Booth on August 30, 2012 sent an email to lab assistants, including the former employee requesting that lab assistants sign up for open shifts on the work schedule, as he was “still short on help.” The schedule with available shifts was posted for September through December 2012. The former employee signed up for seven or eight four-hour shifts over the course of the fall semester that same day and emailed Instructor Booth the evening of August 30 to inform him of this. In her email, she indicated that she was no longer on disability leave from her other job.
Two weeks later, on September 12, 2012, the College removed the former employee from the work schedule for the entire fall semester schedule on the written instructions of Instructor Booth with the approval of Director Stone. Instructor Booth’s September 12 email instructions to his assistant provided a link to the online work schedule for the lab assistants and stated: “Any day you see [the former employee], just take her off.” Director Stone was copied on this email. That same day, Director Stone replied to Instructor Booth’s email, stating that he had reviewed all of the dates up to December and approved the schedule. The College knew that, by removing the former employee from the schedule, it was terminating her employment with Lanier.
When the former employee realized that someone removed her from the schedule for the entire semester, she contacted Instructor Booth. He told the former employee, by text message, that it was Director Stone’s decision and that Director Stone wanted to give the former employee “some time to heal.” Instructor Booth also stated that Director Stone seemed upset about the former employee missing a few days in the summer due to her MS. Instructor Booth then directed the former employee to speak to Director Stone. He did not offer to reinstate her for any of the days she signed up for or for any future dates.
Thereafter, on September 26, 2012, the former employee contacted Director Stone by email. After telling Director Stone i her email that Instructor Booth said Director Stone was managing the schedule and had wanted to give her “some time to heal,” she reassured him that she appreciated his concern but that she felt she was “OK.” When Director Stone responded on September 23, he confirmed the correctness of Director Stone’s email and also confirmed that he was concerned with the former employee’s health. He offered to discuss these concerns further with her in private. He did not offer to reinstate her for any of the days she signed up for or for any future dates.
Later that day, the former employee called Director Stone. On the call, Director Stone expressed concern about legal and liability issues and whether the former employee was fit to work because of her MS. He said that he, as the Department Director, had to be concerned about her health and medical issues, because a student could challenge a grade on the basis that her MS made her unfit to evaluate students. Director Stone also referenced a couple days that the former employee missed work due to her MS during the summer, and stated that she was less reliable than other lab assistants were at that point. He did not offer to reinstate her for any of the days she signed up for or for any future dates.
Approximately six months later, College removed the former employee from the payroll and changed her payroll status to “terminated.”
On September 26, 2012, the former employee filed a timely charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC), alleging that College terminated her because of her disability in violation of the ADA. The Justice Department filed the lawsuit after the EEOC referred the former employee’s complaint to it.
Title I of the ADA prohibits covered entities including the College from discriminating against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4.
The Justice Department complaint against the College charged that the College violated the ADA by discriminating against her on the basis of her disability by:
Removing her from the lab assistant work schedule for a semester and reducing her work hours and compensation to zero; and
Terminating her on the basis of her disability
As a consequence of these discriminatory actions, the complaint charged the former employee suffered lost earnings, benefits and job advancement opportunities, as well as substantial emotional distress, pain and suffering and other nonpecuniary losses. The complaint asked the District Court to redress these injuries by:
Declaring the College in violation of the Title I of the ADA and its accompanying regulation;
Enjoining the College and its agents, employees, successors, and all persons in active concert or participation with it, from engaging in discriminatory employment policies and practices that violate Title I of the ADA;
Requiring the College to modify its policies, practices, and procedures as necessary to bring its employment practices into compliance with Title I of the ADA and its implementing regulation;
Ordering the College to train its supervisors and human resource staff regarding the requirements of Title I of the ADA; and
Awarding the former employee back pay with interest; the value of any lost benefits with interest; and compensatory damages, including damages for emotional distress, for injuries suffered as a result of Defendant’s failure to comply with the requirements of the ADA;
Under the settlement agreement announced November 7, 2019 by the Justice Department, the College must pay the former employee $53,000 in back pay and compensatory damages, revise its policies and training staff on the ADA to ensure compliance with the ADA, train staff on the ADA, and report to the Justice Department on implementation of the settlement agreement.
Reaching this settlement allowed the College to eliminate its exposure to potentially much greater liability. In addition to actual lost compensation and benefit damages, a loss at trial could have resulted in a jury award that also ordered the College to pay attorneys’ fees and other costs, interest and exemplary damages of up to $300,000.
For More Information
We hope this update is helpful. For more information about employment discrimination or other labor and employment, compensation, benefits or other related management and compliance concerns or developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
Solutions Law Press, Inc. invites you receive future updates and join discussions about these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Solutions Law Press HR & Benefits Update Compliance Update Group and registering for updates on our Solutions Law Press Website..
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, health care, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications including extensive work with businesses on compliance, risk management and defense.
Author of numerous highly regarding publications on disability and other discrimination and other employment, employee benefit, compensation, regulatory compliance and internal controls and other management concerns affecting health care, education, insurance, housing and other operations, Ms. Stamer’s clients include health care, insurance and financial services, educational and other employer and services organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors; domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders. In addition to her legal and management operations work. Ms. Stamer’s experience includes 30 plus years’ of legislative and regulatory policy advocacy and drafting, design, compliance and enforcement including testifying to the EBSA Advisory Council on Employee Welfare and Pension Benefit Plans in on the effectiveness of employee benefit plan disclosures during 2017 hearings on on reducing the burdens and increasing the effectiveness of ERISA mandated disclosures as well as advice, representation, advocacy and testimony to and before and other work with various foreign governments, Congress, state legislatures, and a multitude of federal, state and local agencies.
Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; manage labor-management relations, comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline; handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.
A Fellow in the American College of Employee Benefit Counsel and Past Chair of both the ABA Managed Care & Insurance Interest Group and it’s RPTE Employee Benefits and Other Compensation Group, Ms. Stamer also has leading edge experience in health benefit, health care, health, financial and other plan, program and process design, administration, documentation, contracting, risk management, compliance and related process and systems development, policy and operations; training; legislative and regulatory affairs, and other legal and operational concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.
Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
For more information about Ms. Stamer or her work, services, experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources 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 your profile here. We also invite you to join the discussion of these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Health Plan Compliance Group or COPE: Coalition On Patient Empowerment Groupon LinkedIn or Project COPE: Coalition on Patient Empowerment Facebook Page.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission and its content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion.otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Adding employee recess to the workday schedule could be a cost effective wellness tool based on health research recently reported by the National Institutes on Health (“NIH”).
Sedentary work and lifestyles fuel many of the heath risks and costs targeted by employer and health benefit employee wellness programs.
With most American adults now spending an average of 11 to 12 hours a day sitting, sedentary work and life styles present leading disease and health cost drivers. Research showing long periods of sitting increase the risk of heart disease and death overall make finding ways to counteract the negative health effects of sedentary lifestyles a key objective of many wellness and public health initiatives. However questions exist about the effectiveness and return on investment of many of the wellness program strategies and tools in the marketplace in producing meaningful changes in employee health or health related behavior.
Findings of research recently announced by NIH suggests giving employees movement breaks for as little as 30 minutes a day could counteract the adverse health effects of their sedentary work. See Light activity may lower harmful effects of sitting.
According to NIH, a study of nearly 8000 people aged 45 or older found as little as 30 minutes of light activity per day may reduce the risk of death incurred by sitting. Replacing sitting with just a few minutes of movement at a time provided health benefits.
NIH reports researchers found that any amount of activity was better than sitting. People who swap 30 minutes of sitting for 30 minutes of light-intensity activity per day would have a 17% lower risk of death. Light-intensity activities include walking and doing chores that require moving around.
People who swap 30 minutes of sitting for 30 minutes of moderate to vigorous physical activity per day would have a 35% lower risk of death from any cause. These types of activities can include jogging, bicycling, and playing sports.
But people didn’t have to move for a full 30 minutes in a row to benefit. Even smaller intervals to break up periods of sitting—including from just 1 to 5 minutes of activity—reduced the risk of death.
NIH also reports positive effects of movement were seen regardless of age, race, weight, smoking and drinking patterns, or existing health problems.
Small amounts of movement mainly benefitted people who didn’t already have an active lifestyle. For people who had a low activity level overall, taking modest activity breaks made a big difference in the risk of death. For people who already had a high level of activity during the day, however, no additional benefit was seen from a little extra movement.
The findings of the health benefit of movement breaks is consistent with findings of a growing series of other recent health studies showing getting adults and children moving during the day even for short periods during the day can produce major heath benefits. See, e.g. Brief Activity Breaks May Benefit Children’s Health; Physical Activity Program Helps Maintain Mobility; Moderate Exercise May Improve Memory in Older Adults. The message is clear: Even modest increases in activity can reduce risk for many serious conditions, including heart disease, diabetes,certain kinds of cancer, and some types of depression and cognitive disorders.
The research also shows that the health benefits can come from engaging in light or moderate movement activities as little as 30 minutes a day even if these activities are broken up and not participation in traditional exercise. Healthful physical activity includes exercise as well as many everyday activities, such as doing active chores around the house, yard work, or walking the dog.
Aerobic activities that make heart and blood vessels by healthier by causing individuals to breathe harder can include brisk walking, dancing, swimming, and playing basketball. Strengthening activities, like push-ups and lifting weights, help make your muscles and bones stronger and can also improve balance.
While the benefits of movement are clear, too many employees fail to do it. Although most people know that physical activity is a good thing, most adults nationwide don’t meet even the minimum recommended amounts of physical activity of at least 30 minutes of brisk walking or other moderate activity, 5 days a week.
NIH-funded research has found that environment—where people live, work, or go to school—can have a big impact on how much individuals move and even how much they weigh. These findings suggest employers and communities can do many things to encourage their people to fit movement into their sedentary lifestyles.
To create a work or other environment that encourages employees to get moving, NIH suggests looking for opportunities to change the environment so activity is an easier choice for workers to make.
Some suggestions include:
Structuring meetings, job duties and other activities to require or encourage sedentary workers to stand up, walk and move around periodically throughout the day;
Providing access to walking sidewalks, trails and other places workers can walk and encouraging workers to use them;
Encouraging workers to walk or take public transportation to lunch or other meetings when feasible rather than drive;
Encouraging people to walk and talk rather than sitting while holding discussions;
Encouraging workers to find waking buddies to walk to lunch or share other exercise breaks or activities with in and outside the workplace;
Encouraging management and employees to incorporate stretching or other movement breaks into meetings and other gatherings; and
Encouraging people to take the stairs and walk to meet fellow employees in person rather than communicating by phone or e-mail when practical.
While each workplace presents different opportunities and challenges, the message from the research is clear: Getting your people moving can produce meaningful health and health and disability cost savings. Maybe it’s time for your company to add short movement recesses to its employees’ day to capitalize on these benefits.
Want to learn, share or discuss other human resources, benefits and compensation, or health and wellness management developments and ideas? We invite you to share your own best practices ideas and resources and join the discussions about these and other human resources, health and other employee benefit and patient empowerment concerns by participating in and contributing to the discussions in our Health Plan Compliance Group or COPE: Coalition On Patient Empowerment Groupon LinkedIn or Project COPE: Coalition on Patient Empowerment Facebook Page.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, she is nationally recognized for her leading edge work, publications, advocacy and programs on making compliant wellness and disease management programs that work and other health and disability plans and management strategies and concerns.
Ms. Stamer’s clients include employers and other workforce management organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors; domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders.
Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline; handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, heavily involved in health benefit, health care, health, financial and other information technology, data and related process and systems development, policy and operations throughout her career, and scribe of the ABA JCEB annual Office of Civil Rights agency meeting, Ms. Stamer also is widely recognized for her extensive work and leadership on leading edge health care and benefit policy and operational issues. She regularly helps employer and other health benefit plan sponsors and vendors, health industry, insurers, health IT, life sciences and other health and insurance industry clients design, document and enforce plans, practices, policies, systems and solutions; manage regulatory, contractual and other legal and operational compliance; vendors and suppliers; deal with Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA, state insurance law and other private payer rules and requirements; contracting; licensing; terms of participation; medical billing, reimbursement, claims administration and coordination, and other provider-payer relations; reporting and disclosure, government investigations and enforcement, privacy and data security; and other compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; HIPAA administrative simplification, meaningful use, EMR, HIPAA and other technology, data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA, HEDIS and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care; internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; 1557 and other Civil Rights; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.
Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources here such as the following:
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 your profile here. We also invite you to join the discussion of these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Health Plan Compliance Group or COPE: Coalition On Patient Empowerment Groupon LinkedIn or Project COPE: Coalition on Patient Empowerment Facebook Page.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advise or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers, health plans and others concerned about managing the high medical, disability and other costs of Type 2 Diabetes should use today’s annual Diabetes Awareness Day observances and resources to beef up their efforts and tools.
With 1 in 3 adult Americans at risk for Type 2 diabetes, the Centers for Disease Control (“CDC”) and other public and private organizations partnering in The National Diabetes Prevention Program are urging all Americans, their health plans, state and local agencies and communities to protect themselves and join their fight to prevent or delay Type 2 diabetes.
Celebrated every year on the fourth Tuesday in March, Diabetes Alert Day promotes awareness of the prevalence and risks of undiagnosed or unmanaged Type 2 Diabetes to Americans, American taxpayers, health benefit programs and their communities.
More than 30 million people in the United States have diabetes and an additional 84 million adults—over a third—have prediabetes, and 90% of them don’t know they have it.
Diabetes is the 7th leading cause of death in the United States (and may be underreported).
Type 2 diabetes accounts for about 90% to 95% of all diagnosed cases of diabetes; type 1 diabetes accounts for about 5%.
In the last 20 years, the number of adults diagnosed with diabetes has more than tripled as the American population has aged and become more overweight or obese
Undiagnosed or unmanaged Type 2 diabetes threatens serious and disabling medical risks for afflicted individuals that also are financially costly for patients and their families, their health plans, taxpayers and communities.
Type 2 diabetes usually starts during adulthood; however, children, teens, and young adults increasingly also are developing it. Since Type 2 diabetes symptoms often develop over several years and can go on for a long time without being noticed it’s important individuals know the factors for Type 2 Diabetes and that people with these symptoms visit their doctor promptly.
Fortunately, Type 2 Diabetes and its costs often can be prevented or minimized through appropriate diagnosis and treatment. That’s why the CDC and its partners are urging all Americans, the employers, health plans, health care providers and communities to join the fight against Type 2 Diabetes.
To start with, the CDC and its partners ask every American to learn their risk for diabetes by taking the online Type 2 Diabetes Risk and promote use of CDC-recognized lifestyle change programs to individuals suffering or at risk for Type 2 diabetes.
The CDC and its partners also are asking American families, health care providers, employers and their health benefit programs, federal, local and state governments and communities to help identify and get people at risk or suffering from Type 2 diabetes involved in making appropriate lifestyle changes and other activities to help manage their Type 2 Diabetes and offers a multitude of free tools and resources to help promote Type 2 Diabetes Awareness and assist in its prevention and treatment.
Employers and their health plans and insurers should consider participating in Diabetes Alert Day and using some of the resources provided by CDC and other partners to beef up their Type 2 and other Diabetes prevention, screening and management efforts. Appropriate use of these resources could help mitigate exposure to the high medical, disability, productivity and other costs that employers and their health plans generally incur when employees or their family members suffer from undiagnosed or unmanaged diabetes. When utilizing these resources, however, employers and their health plan fiduciaries, insurers and administrators are reminded to use care to implement and administer these wellness and other programs in a manner that complies with the Americans With Disabilities Act (“ADA”), Health Insurance Portability & Accountability Act, Internal Revenue Code and other federal and state requirements concerning the design and administration of wellness and disease management programs including recent updates in the Equal Employment Opportunity Commission’s regulations and enforcement positions under the ADA.
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer’s clients include employers and other workforce management organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors; domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders.
Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, FMLA and other leave, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline; handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, heavily involved in health benefit, health care, health, financial and other information technology, data and related process and systems development, policy and operations throughout her career, and scribe of the ABA JCEB annual Office of Civil Rights agency meeting, Ms. Stamer also is widely recognized for her extensive work and leadership on leading edge health care and benefit policy and operational issues. She regularly helps employer and other health benefit plan sponsors and vendors, health industry, insurers, health IT, life sciences and other health and insurance industry clients design, document and enforce plans, practices, policies, systems and solutions; manage regulatory, contractual and other legal and operational compliance; vendors and suppliers; deal with Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA, state insurance law and other private payer rules and requirements; contracting; licensing; terms of participation; medical billing, reimbursement, claims administration and coordination, and other provider-payer relations; reporting and disclosure, government investigations and enforcement, privacy and data security; and other compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; audits, investigations, enforcement and defense; Civil Rights; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.
Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
For more information about Ms. Stamer or her experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources here such as the following:
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advise or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
A new U.S. Department of Labor’s Wage and Hour Division (WHD) Family and Medical Leave Act (“FMLA”)opinion letter says warns employers not to delay providing FMLA notice or designating a leave as FMLA-covered when coordinating FMLA protected leave with otherwise available paid or unpaid leave.
FMLA Opinion 2019-1-A states that a FMLA-covered employer must designate as FMLA protected and, absent extenuating circumstances, must provide notice of the designation of the leave as FMLA protected within five business days of the date the employer has enough information to determine an employee has experienced a FMLA qualifying event. The Opinion says this designation and notice must happen even if the employee would prefer that the employer delay the designation of the absence as a FMLA protected leave until the employee exhausts other available leave.
According to WHD, its FMLA regulations require employers to provide a written “designation notice” to an employee within five business days—absent extenuating circumstances—after the employer “has enough information to determine whether the leave is being taken for a FMLA-qualifying reason.” Failure to provide timely notice requirement may constitute an interference with, restraint on, or denial of the exercise of an employee’s FMLA rights. 29 C.F.R. §§ 825.300(e), 825.301(e). Consequently, the Opinion concludes that the employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee within five days of learning if events triggering the FMLA eligibility. 29 C.F.R. § 825.300(d).
The Opinion also emphasizes that employers cannot delay the designation of a leave as FMLA protected and provision of notice while a FMLA-eligible employee uses otherwise available leave. While acknowledging that the FMLA permits an employer to require, or to permit an employee to elect, to “substitute” accrued paid leave (e.g., paid vacation, paid sick leave, etc.) to cover any part of the unpaid FMLA entitlement period,the Opinion states that “[t]he term substitute means that the paid leave provided by the employer … will run concurrently with the unpaid FMLA leave.” 29 C.F.R. § 825.207(a) (emphasis added). While acknowledging that the FMLA allows employers to adopt leave policies more generous than those required by the FMLA. 29 U.S.C. § 2653; see 29 C.F.R. § 825.700, the Opinion also says an employer may not designate more than 12 weeks of leave—or more than 26 weeks of military caregiver leave—as FMLA-protected. See, e.g., Weidner v. Unity Health Plans Ins. Corp., 606 F. Supp. 2d 949, 956 (W.D. Wis. 2009) (citing cases for the principle that “a plaintiff cannot maintain a cause of action under the FMLA for an employer’s violation of its more-generous leave policy”).
Furthermore, the Opinion also openly rejects and disagrees with the Ninth Circuit’s holding in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014) that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order to preserve FMLA leave for future use. Instead, the Opinion adopts the position that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. See 29 C.F.R. § 825.220(d) (“Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.”); Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1204 (11th Cir. 2001) (noting that the employer may not “choose whether an employee’s FMLA-qualifying absence” is protected or unprotected by the FMLA). Accordingly, the Opinion concludes that when an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Once the employer has enough information to make this determination, the employer must, absent extenuating circumstances, provide notice of the designation within five business days. Therefore, the employer may not delay designating leave as FMLA-qualifying or providing notification, even if the employee would prefer that the employer delay the designation.
The Opinion also clarifies the WHD’s interpretation of the FMLA limits the protection of the FMLA to the statutory period set by the FMLA. In this respect, the Opinion states, “An employer is also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.” Thus, while acknowledging that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” under 29 C.F.R. § 825.700, the Opinion also states that “providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.” Therefore, the Opinion states that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.
As many employers currently coordinate and administer their FMLA and other leaves inconsistently with the positions stated in the Opinion, employers generally should consult with experienced legal counsel within the scope of attorney client privilege about the implications of the guidance set forth in the Opinion on their existing practices and about whether any corrective action or modifications are advisable in light of the Opinion to minimize potential exposure to FMLA liability. In connection with this review, employers also generally will want to evaluate their other paid and unpaid military, medical, maternity/paternity, adoption and other absence and leave policies and associated employee benefit plans to confirm that these designs continue to operate as intended and that current coordination practices comport with existing guidance.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer’s clients include employers and other workforce management organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors; domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders.
Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, FMLA and other leave, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline; handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, heavily involved in health benefit, health care, health, financial and other information technology, data and related process and systems development, policy and operations throughout her career, and scribe of the ABA JCEB annual Office of Civil Rights agency meeting, Ms. Stamer also is widely recognized for her extensive work and leadership on leading edge health care and benefit policy and operational issues. She regularly helps employer and other health benefit plan sponsors and vendors, health industry, insurers, health IT, life sciences and other health and insurance industry clients design, document and enforce plans, practices, policies, systems and solutions; manage regulatory, contractual and other legal and operational compliance; vendors and suppliers; deal with Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA, state insurance law and other private payer rules and requirements; contracting; licensing; terms of participation; medical billing, reimbursement, claims administration and coordination, and other provider-payer relations; reporting and disclosure, government investigations and enforcement, privacy and data security; and other compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; audits, investigations, enforcement and defense; Civil Rights; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.
Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
For more information about Ms. Stamer or her experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources here such as the following:
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advise or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
The Internal Revenue Service is warning human resources and other business leaders about a growing wave of identity theft and W-2 scams targeting sensitive tax data employers collect on their employees. The warning highlights one of the many growing data breach exposures businesses must manage as identity thieves become ever more sophisticated.
Such data like Form W-2 data – is highly valued by identity thieves. While identity thieves use a variety of tactics to steal this information including hacking into the IRS’ own systems, the IRS this week is warning about one scheme that the IRS says has become one of the more dangerous email scams.
All employers are targets for the W-2 scam, according to the IRS.
Here’s how it works:
These emails appear to be from an executive or organization leader to a payroll or human resources employee.
The message usually starts with a simple greeting, like: “Hey, you in today?”
By the end of the email exchange, all of an organization’s Forms W-2 for their employees may be in the hands of cybercriminals.
Because payroll officials believe they are corresponding with an executive, it may take weeks for someone to realize a data theft has occurred.
Generally, the criminals are trying to quickly take advantage of their theft, sometimes filing fraudulent tax returns a day or two.
The IRS warns this scam is such a threat to taxpayers that a special IRS reporting process has been established. The IRS says employers victimized should:
Emaildataloss@irs.govto notify the IRS of a W-2 data loss and provide contact information. In the subject line, type “W2 Data Loss” so that the email can be routed properly. The business should not attach any employee personally identifiable information data.
Email the Federation of Tax Administrators atStateAlert@taxadmin.orgto get information on how to report victim information to the states.
File a complaint with theFBI’s Internet Crime Complaint Center. Businesses and payroll service providers may be asked to file a report with their local law enforcement agency.
Notify employees. The employee may then take steps to protect themselves from identity theft. The Federal Trade Commission’swww.identitytheft.govprovides guidance on general steps employees should take.
The IRS alert reminds businesses again about the growing challenges they face guarding sensitive tax, health and other employee benefit plan and other data about employees, customers, business partners and others. Aside from the disruptions businesses incur to organizations and relationships with employees, customers, business partners or others and often tremendous costs of investigation and mitigation, breaches also commonly trigger substantial legal liability under a myriad of federal and state laws and regulations, contracts, and common law tort claims. Businesses generally and Human Resources, tax and other systems and operations should take well documented steps to prevent and prepare for a potential breach.
About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving and author of “What To Do When Your Employee’s Personal Life Becomes Your Business@ and a multitude of other highly regarded works on data protection and breach, her work includes career-long, leading edge involvement counseling and representing human resources, employee benefit, insurance and financial, tax, healthcare and other businesses about data and other sensitive information privacy and breach.
Ms. Stamer’s clients include employers and other workforce management organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors; domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders.
Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline; handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, heavily involved in health benefit, health care, health, financial and other information technology, data and related process and systems development, policy and operations throughout her career, and scribe of the ABA JCEB annual Office of Civil Rights agency meeting, Ms. Stamer also is widely recognized for her extensive work and leadership on leading edge health care and benefit policy and operational issues. She regularly helps employer and other health benefit plan sponsors and vendors, health industry, insurers, health IT, life sciences and other health and insurance industry clients design, document and enforce plans, practices, policies, systems and solutions; manage regulatory, contractual and other legal and operational compliance; vendors and suppliers; deal with Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA, state insurance law and other private payer rules and requirements; contracting; licensing; terms of participation; medical billing, reimbursement, claims administration and coordination, and other provider-payer relations; reporting and disclosure, government investigations and enforcement, privacy and data security; and other compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; HIPAA administrative simplification, meaningful use, EMR, HIPAA and other technology, data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA, HEDIS and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care; internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; 1557 and other Civil Rights; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.
Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources here such as the following:
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advise or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
The official poster for the upcoming National Disability Employment Awareness Month 2018 in October is now available in both English and Spanish. You can download the free poster from the Office of Disability Employment (ODEP) website hereor order it in hard copy here.
Observed each October, NDEAM celebrates the contributions of workers with disabilities and educates about the value of a workforce inclusive of their skills and talents.
The 2018 National Disability Employment Awareness Month (NDEAM) theme is “America’s Workforce: Empowering All.”
In keeping with this theme, the 2018 poster features an office scene of coworkers with and without disabilities, and highlights the theme of “America’s Workforce: Empowering All.”
Today the U.S. Department of Labor issued a press release about the publication of a new OFCCP Directive extending the enforcement moratorium relating to the affirmative obligations of TRICARE providers for two years. This moratorium has been in effect for four years, and will now expire on May 7, 2021; it will also now apply to Veterans Affairs Health Benefits Program providers.
This extension will provide OFCCP time to receive feedback from stakeholders, relieve uncertainty, and give OFCCP an opportunity to evaluate and address legislation that may be enacted on this issue.
About The Author
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation; Former Chair of the RPTE Employee Benefits and Compensation Committee, a current Co-Chair of the Committee, and the former Chair of its Welfare Benefit and its Defined Compensation Plan Committees and former RPTE Joint Committee on Employee Benefits Council (JCEB) Representative, Cynthia Marcotte Stamer is a Martindale-Hubble “AV-Preeminent” practicing attorney and management consultant, author, public policy advocate, author and lecturer repeatedly recognized for her 30 plus years’ of work and pragmatic thought leadership, publications and training on health, pension and other employee benefit, insurance, labor and employment, and health care fiduciary responsibility, payment, investment, contracting and other design, administration and compliance concerns as among the “Top Rated Labor & Employment Lawyers in Texas,” a “Legal Leader,” a “Top Woman Lawyer” and with other awards by LexisNexis® Martindale-Hubbell®; as among the “Best Lawyers In Dallas” for her work in the field of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, in International Who’s Who of Professionals and with numerous other awards and distinctions.
Highly valued for her ability to meld her extensive legal and industry knowledge and experience with her talents as an insightful innovator and pragmatic problem solver, Ms. Stamer advises, represents and defends employer, union, multi-employer, association and other employee benefit plan sponsors, insurers and managed care organizations, fiduciaries, plan administrators, technology and other service providers, government and community leaders and others about health and other employee benefit and insurance program and policy design and innovation, funding, documentation, administration, communication, data security and use, contracting, plan, public and regulatory reforms and enforcement, and other risk management, compliance and operations matters. Her experience encompasses leading and supporting the development and defense of innovative new policies, programs, practices and solutions; advising and representing clients on routine plan establishment, plan documentation and contract drafting and review, administration, change and other compliance and operations; crisis prevention and response, compliance and risk management audits and investigations, enforcement actions and other dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, Justice, Securities and Exchange Commission, Education and other federal agencies, state legislatures, attorneys general, insurance, labor, worker’s compensation, and other agencies and regulators, and various other foreign and domestic governmental bodies and agencies. She also provides strategic and other supports clients in defending litigation as lead strategy counsel, special counsel and as an expert witness. Alongside her extensive legal and operational experience, Ms. Stamer also is recognized for her work as a public and regulatory policy advocate and community leader with a gift for finding pragmatic solutions and helping to forge the common ground necessary to build consensus. Best known for her domestic public policy and community leadership on health care and insurance reform, Ms. Stamer’s lifelong public policy and community service involvement includes service as a lead consultant to the Government of Bolivia on its pension privatization project, as well as extensive legislative and regulatory reform, advocacy and input workforce, worker classification, employee benefit, public health and healthcare, social security and other disability and aging in place, education, migration reforms domestically and internationally throughout her adult life. In addition to her public and regulatory policy involvement, Ms. Stamer also contributes her service and leadership to a professional and civic organizations and efforts including her involvement as the Founder and Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE; Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence; Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; Vice Chair, Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group; current Fiduciary Responsibility Committee Co-Chair and Membership Committee member of the ABA RPTE Section; former RPTE Employee Benefits and Other Compensation Group Chair, former Chair and Co-Chair of its Welfare Plans Committee, and Defined Contribution Plans Committee; former RPTE Representative to ABA Joint Committee on Employee Benefits Council; former RPTE Representative to the ABA Health Law Coordinating Counsel; former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, former Board Member, Continuing Education Chair and Treasurer of the Southwest Benefits Association; Vice President of the North Texas Healthcare Compliance Professionals Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; past Dallas World Affairs Council Board Member, and in leadership of many other professional, civic and community organizations. Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, the Society of Professional Benefits Administrators, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients, serves on the faculty and planning committee of many workshops, seminars, and symposia, and on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other public policy advocacy and other professional and civic organizations and involvements. Through these and other involvements, she helps develop and build solutions, build consensus, garner funding and other resources, manage compliance and other operations, and take other actions to identify promote tangible improvements in health care and other policy and operational areas.
Before founding her current law firm, Cynthia Marcotte Stamer, P.C., Ms. Stamer practiced law as a partner with several prominent national and international law firms for more than 10 years before founding Cynthia Marcotte Stamer, P.C. to practice her unique brand of “Solutions law™” and to devote more time to the pragmatic policy and system reform, community education and innovation, and other health system improvement efforts of her PROJECT COPE: the Coalition on Patient Empowerment initiative.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers should consider inviting their workers to conduct a Paycheck Checkup to review their withholding elections to confirm they have the right amount of tax deducted from their paychecks in response to tax law changes enacted by the Tax Cuts and Jobs Act (Trump Tax) and other recent legislation. Helping workers properly to take into account tax relief or other changes reducing their income tax liability can help boost workers’ take home pay, helping them to see more benefit from the wages paid by the employer at payday.
The amount of withholding that an employer withholds from an employee’s pay generally depends upon two factors:
The amount the employee can earn; and
The accuracy of the personal information the employee uses to complete the Form W-4 to notify the employer of his withholding elections; and
The tax rules that decide how much tax the employee ultimately will owe when their personal income tax returns become due on April 15, 2018.
Although most employees don’t think about the potential need to re-evaluate the withholding elections on their current Form W-4 unless reminded by an employer or professional advisor, it’s generally a good idea for workers to periodically review and update their withholding elections since these often change from time to time. Encouraging workers to periodically review and update their W-4 elections can help workers maximize their take home pay while minimizing the risk of being surprised with an unexpected income tax or even under withholding penalty when they file their annual income tax return.
A number of recent events make it particularly likely that employees will benefit from re-evaluating their W-4 withholding now. For one thing, the Tax Cuts and Jobs Act recently changed the way income tax is calculated for most individual taxpayers. As many of these changes were enacted to provide individual tax relief for many taxpayers, workers qualifying for this relief that do not review and update their withholding elections likely are having the employer withhold more tax than necessary from their paychecks. Beyond these tax rule changes, many workers also may need to update their withholding elections in response to changes in their income, marital or other family status or other changes in their personal situation that also can affect the income tax withholding of the individual worker.
The Internal Revenue Service recently updated the Withholding Calculator the IRS provides on its website to help individuals estimate their annual income tax for purposes of deciding the withholding they should enter on their Form W-4 in light of the Tax Cuts and Jobs Act changes. Individuals can use the Withholding Calculator to estimate their 2018 and to compare their current tax withholding to help the individual decide if the individual needs to change his withholding with an employer.
More details about the Withholding Calculator and the new 2018 withholding tables can be found using the following internet links on the IRS’ Frequently Asked Question pages:
Employers should consider sending a reminder to workers to review their Form W-4 using these tools to determine if they can increase their take home pay by changing their withholding to take into account any potential income tax and withholding reductions they qualify for, if any, as a result of the Tax Cuts and Jobs Act or other changes in factors that impact their withholding and income tax liability or if other changes are warranted. Because most employees just completed their annual tax returns and likely have not considered the potential need to change their elections for tax reform or other changes, employees are likely to be particularly receptive and responsive to these reminders now. Employers and benefit plan administrators also may wish to consider helping employees remember to review and update their Form W-4 withholding when sending benefit enrollment packages, processing benefit enrollment elections when announcing pay increases or bonuses, in employee handbooks or payroll stuffers, at annual enrollment times or in response to mid-year election or beneficiary change notifications and at other times when the employer or their benefit plans deal with life event or benefit election events that could impact an employee’s withholding.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
The author of the “Texas Payday Act,” and numerous other highly regarded publications on wage and hour and other human resources, employee benefits and compensation publications, Ms. Stamer is well-known for her 30 years of extensive wage and hour, compensation and other management advice and representation of restaurant and other hospitality, health, insurance, financial services, technology, energy, manufacturing, retail, governmental and other domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources here including:
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 your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employer and sponsors, fiduciaries, administrators and insurers of employee benefitplansof any type covered by the Employee Retirement Income Security Act (ERISA) making any disability based determinations now have until April 1, 2018 to bring their plans’ claims and appeals procedures for disability-based decisions and related notices and communications into compliance with substantially more complicated requirements in new Department of Labor Employee Benefit Security Administration (EBSA) regulations.
The EBSA announced on January 5, 2018 the extension of the effective date of new requirements for benefit plan processing and providing notification about claims or appeals involving disability determinations from their originally scheduled effective date of January 1, 2018 to April 1, 2018.
While the extension gives employer and other sponsors, fiduciaries, administrators and insurers of employee benefit plans making disability-based benefit determinations a few extra months to review and update their plan documents, summary plan descriptions, procedures, processes and claims and appeals notices to meet tightened new federal rules on disability-based benefit determinations applicable to all post December 31, 2017 claims under the restated Final Rule on Claims Procedure for Plans Providing Disability Benefits (“Disability Claims Rule”), the nature and scope of these new requirements will require updates to virtually all ERISA-covered benefit plans with any disability dependent provisions. These updates are likely to include changes to plan documents, summary plan descriptions, notices, contracts, processes and procedures for a broad range of plans. Consequently, employer and other plan sponsors, fiduciaries, administrators, insurers and others responsible for any benefit plan not already reviewed and updated to comply should get moving to complete the necessary review and update to meet the April 1, 2018 deadline.
Cynthia Marcotte Stamer and others will lead a free telephone study group discussion of “Claims Regulations and Other Developments Affecting Plan Fiduciaries” on January 26, 2018 beginning at 1 PM (Eastern), Noon (Central), 11 AM (Mountain), and 10 AM (Pacific). For more details about the Study Group, see here.
New Disability Claims Rule Overview
Originally published in final form by the EBSA on December 16, 2016, the Disability Claims Rule generally require all ERISA-covered employee benefit plans making any disability benefit or other determination conditioned upon a finding of disability to comply with the new Disability Claims Rule for any claim received after March 31, 2018.
Based on EBSA’s previously adopted Patient Protection and Affordable Care Act (“ACA”) group health plan claims and appeals rules, the new Final Disability Claims Rule will apply to all disability determinations made under any ERISA-covered plan after March 31, 2018, regardless of how the plan characterizes the benefit or whether the plan is a health or other welfare, pension, 401(k) plan or other savings plan.
The new Disability Claims Rule will apply to a broad range of plans, most of which historically have not followed the detailed claims and appeals notification, independent and impartial decision-making, rescission, deemed exhaustion, “culturally and linguistically appropriate” and other procedural protections and safeguards that the Disability Claims Rule extends from the current group health plan rules to all ERISA-covered plans making benefit determinations based on disability. Consequently covered plans making disability-based benefit or other covered determinations are likely to require updates to plan documents, insurance or administrative services contracts, summary plan descriptions and other plan communications, claims and appeals notices, and other related processes, procedures and documentation to meet these new requirements. Since certain requirements of the Disability Claims Rules like the summary plan description advance disclosure requirements are required to be provided before the claim is received, plans and their sponsors, fiduciaries, insurers and administrators risk being accused of violating these requirements by waiting to update plans, their processes and materials until after claim involving a disability based determination arises.
Ensuring that impacted plans are updated before the April 1, 2018 deadline is important because the Disability Claims Rule, like the group health plan claims and appeals rules upon which it is based, also states that noncompliance with any of its requirements empowers a participant to immediately sue the plan for enforcement if his rights without further complying the the plan’s administrative procedures. Moreover, failing to comply with summary plan disclosure or claims or appeal adverse benefit determination notification requirements also may subject the plan administrator to administrative penalties under ERISA section 514(c); fiduciaries to ERISA fiduciary liability, and compromise the ability to defend otherwise defensible decisions. Consequently, employers and other plan sponsors, fiduciaries, administrators and insurers will want to act quickly to ensure that their plans, their summary plan descriptions and other communications, notices, processes, contracts and procedures are updated appropriately before April 1, 218.
About The Author
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation; Former Chair of the RPTE Employee Benefits and Compensation Committee, a current Co-Chair of the Committee, and the former Chair of its Welfare Benefit and its Defined Compensation Plan Committees and former RPTE Joint Committee on Employee Benefits Council (JCEB) Representative, Cynthia Marcotte Stamer is a Martindale-Hubble “AV-Preeminent” practicing attorney and management consultant, author, public policy advocate, author and lecturer repeatedly recognized for her 30 plus years’ of work and pragmatic thought leadership, publications and training on health, pension and other employee benefit, insurance, labor and employment, and health care fiduciary responsibility, payment, investment, contracting and other design, administration and compliance concerns as among the “Top Rated Labor & Employment Lawyers in Texas,” a “Legal Leader,” a “Top Woman Lawyer” and with other awards by LexisNexis® Martindale-Hubbell®; as among the “Best Lawyers In Dallas” for her work in the field of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, in International Who’s Who of Professionals and with numerous other awards and distinctions.
Highly valued for her ability to meld her extensive legal and industry knowledge and experience with her talents as an insightful innovator and pragmatic problem solver, Ms. Stamer advises, represents and defends employer, union, multi-employer, association and other employee benefit plan sponsors, insurers and managed care organizations, fiduciaries, plan administrators, technology and other service providers, government and community leaders and others about health and other employee benefit and insurance program and policy design and innovation, funding, documentation, administration, communication, data security and use, contracting, plan, public and regulatory reforms and enforcement, and other risk management, compliance and operations matters. Her experience encompasses leading and supporting the development and defense of innovative new policies, programs, practices and solutions; advising and representing clients on routine plan establishment, plan documentation and contract drafting and review, administration, change and other compliance and operations; crisis prevention and response, compliance and risk management audits and investigations, enforcement actions and other dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, Federal Trade Commission, Justice, Securities and Exchange Commission, Education and other federal agencies, state legislatures, attorneys general, insurance, labor, worker’s compensation, and other agencies and regulators, and various other foreign and domestic governmental bodies and agencies. She also provides strategic and other supports clients in defending litigation as lead strategy counsel, special counsel and as an expert witness. Alongside her extensive legal and operational experience, Ms. Stamer also is recognized for her work as a public and regulatory policy advocate and community leader with a gift for finding pragmatic solutions and helping to forge the common ground necessary to build consensus. Best known for her domestic public policy and community leadership on health care and insurance reform, Ms. Stamer’s lifelong public policy and community service involvement includes service as a lead consultant to the Government of Bolivia on its pension privatization project, as well as extensive legislative and regulatory reform, advocacy and input workforce, worker classification, employee benefit, public health and healthcare, social security and other disability and aging in place, education, migration reforms domestically and internationally throughout her adult life. In addition to her public and regulatory policy involvement, Ms. Stamer also contributes her service and leadership to a professional and civic organizations and efforts including her involvement as the Founder and Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE; Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence; Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; Vice Chair, Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group; current Fiduciary Responsibility Committee Co-Chair and Membership Committee member of the ABA RPTE Section; former RPTE Employee Benefits and Other Compensation Group Chair, former Chair and Co-Chair of its Welfare Plans Committee, and Defined Contribution Plans Committee; former RPTE Representative to ABA Joint Committee on Employee Benefits Council; former RPTE Representative to the ABA Health Law Coordinating Counsel; former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, former Board Member, Continuing Education Chair and Treasurer of the Southwest Benefits Association; Vice President of the North Texas Healthcare Compliance Professionals Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; past Dallas World Affairs Council Board Member, and in leadership of many other professional, civic and community organizations. Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, the Society of Professional Benefits Administrators, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients, serves on the faculty and planning committee of many workshops, seminars, and symposia, and on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other public policy advocacy and other professional and civic organizations and involvements. Through these and other involvements, she helps develop and build solutions, build consensus, garner funding and other resources, manage compliance and other operations, and take other actions to identify promote tangible improvements in health care and other policy and operational areas.
Before founding her current law firm, Cynthia Marcotte Stamer, P.C., Ms. Stamer practiced law as a partner with several prominent national and international law firms for more than 10 years before founding Cynthia Marcotte Stamer, P.C. to practice her unique brand of “Solutions law™” and to devote more time to the pragmatic policy and system reform, community education and innovation, and other health system improvement efforts of her PROJECT COPE: the Coalition on Patient Empowerment initiative.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following:
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers, employee benefit plan sponsors and administrators, vendors and their advisors and service providers should re-evaluate their existing payroll and other settings and elections, planning, testing and related strategies and assumptions in light of the 2018 annual cost-of-living adjustments (COLAs) to the dollar limitations applicable to the Internal Revenue Code Section 415 qualified retirement plans benefit and contribution limits announced by the Internal Revenue Service (IRS) in Notice 2017-64, IRB 2017-45 on November 6, 2017.
H.R. 1, Tax Cuts and Jobs Act (Tax Refirm Bill) reported out of the Conference Committee last week and scheduled for a vote before Congress tomorrow leaves these limits substantially unchanged.
Notice 2017-64 adjusts the dollar limitations applicable to the Internal Revenue Code Section 415 qualified retirement plans benefit and contribution limits. The Section 415 limitations COLAs are made and published annually to comply with Section 415(d)’s requirement that the Treasury Security annually adjust these limits for cost-of-living increases. Other limitations applicable to deferred compensation plans are also affected by these adjustments under § 415. Under § 415(d), the adjustments are to be made under adjustment procedures similar to those used to adjust benefit amounts under § 215(i)(2)(A) of the Social Security Act.
In addition to impacting contribution limits permitted to defined benefit, 401(k) and other defined contribution and other plans, the changes can impact the definition of highly compensated employees, discrimination testing, plan funding and a broad range of employee benefit, compensation, tax, payroll, union or other contracting and other concerns for employers, employee benefit plan sponsors, fiduciaries, administrators, payroll, plan and other vendors, participants and beneficiaries and others.
The following is a chart of the adjusted limits compared to the currently applicable 2017 limitations. (Download chart)
Employers, employee benefit plan sponsors, fiduciaries, administrators and other vendors, participants and beneficiaries and others working with employee benefit plans or compensation contributed to these arrangements should review these new 2018 COLA limitations to assess their potential impact and make appropriate adjustments to avoid compliance challenges or other unfortunate surprises in 2018. If they already have not already done so, reviewing the 2018 Social Security Act COLAs also would be wise. See 2018 Social Security COLAs Set.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following:
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employer and other sponsors, fiduciaries, administrators and insurers of the Employee Retirement Income Security Act (ERISA)-covered employee benefit plans making disability-based benefit determinations should confirm that their plan documents, summary plan descriptions, procedures and claims and appeals notices are updated and ready to meet tightened new federal rules on disability-based benefit determinations applicable to all post December 31, 2017 claims under the restated Final Rule on Claims Procedure for Plans Providing Disability Benefits (“Disability Claims Rule”). Given the nature and scope of these new requirements, most covered plans will require specific action be taken before the new rules take effect to update plan documents, summary plan descriptions, notices, contracts, processes and procedures to meet the January 1, 2018 deadline.
The Disability Claims Rule published by the Department of Labor Employee Benefit Security Administration (“EBSA”) on December 19, 2016 generally require all ERISA-covered employee benefit plans making any disability benefit or other determination conditioned upon a finding of disability to comply with the new Disability Claims Rule for any claim received after December 31, 2017.
The new Final Disability Claims Rule will apply to all disability determinations made under any ERISA-covered plan after December 31, 2017, regardless of how the plan characterizes the benefit or whether the plan is a health or other welfare, pension, 401(k) plan or other savings plan.
Significant affirmative action is likely required to prepare covered plans to meet these requirements since most plans historically have not followed the detailed claims and appeals notification, independent and impartial decision-making, rescission, deemed exhaustion, “culturally and linguistically appropriate” and other procedural protections and safeguards based on EBSA’s previously adopted Patient Protection and Affordable Care Act (“ACA”) group health plan claims and appeals rules, which the Disability Claims Rules extend and make applicable to all ERISA-covered plans making benefit determinations based on disability. Covered plans making disability-based benefit or other covered determinations are likely to require updates to plan documents, insurance or administrative services contracts, summary plan descriptions and other plan communications, claims and appeals notices, and other related processes, procedures and documentation to meet these new requirements. Since certain requirements of the Disability Claims Rules like the summary plan description advance disclosure requirements are required to be provided before the claim is received, plans and their sponsors risk being accused of violating these requirements by waiting to update plans, their processes and materials until after claim involving a disability based determination arises.
Ensuring that impacted plans are updated before the January 1, 2018 deadline is important because the Disability Claims Rule, like the group health plan claims and appeals rules upon which it is based, also states that noncompliance with any of its requirements empowers a participant to immediately sue the plan for enforcement if his rights without further complying the the plan’s administrative procedures. Moreover, failing to comply with summary plan disclosure or claims or appeal adverse benefit determination notification requirements also may subject the plan administrator to administrative penalties under ERISA section 514(c). Consequently, employers and other plan sponsors, fiduciaries, administrators and insurers will want to act quickly to ensure that their plans, their summary plan descriptions and other communications, notices, processes, contracts and procedures are updated appropriately before January 1, 2018.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediatepast RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, BenefitsMagazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following:
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
This month’s annual October Stop Bullying Month observances are a great time for employers to deter sexual, racial, religious, national Origin, disability discrimination and harassment, retaliation and other illegal or otherwise counterproductive bullying in their workplaces.
Aside from obvious legal exposures that often attend from many versions of workplaces bullying, unfair or heavy handed tactics of workplace bullies often pervasively disrupt workplace productivity and operations by undermining performance, feedback, initiative, employee retention and a host of other ways.
Seize the opportunity to boost your organization’s legal and operational exposures non discrimination, anti-harassment, and other workplace bullying policies by leveraging the visibility and resources of this month’s anti-bullying activities.
Checkout StopBullying.gov for more information and free resources.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following:
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 66 million Americans will increase 2.0 percent in 2018.
The Social Security Administration announced the 2.0 cost of living adjustment (COLA) Friday announced a 2% increase in benefits for 2018.
The largest COLA increase since 2012 will increase the benefits payable to more than 61 million Social Security beneficiaries in January 2018. Increased payments to more than 8 million SSI beneficiaries will begin on December 29, 2017. The Social Security Administration deducts $1 from benefits for each $3 earned over $45,360 until the month the worker turns age 66.)
There is no limit on earnings for workers who are “full” retirement age or older for the entire year.
The slight increase in benefits also may result in a corresponding decrease in disability benefits under plans that integrate or otherwise offset plan benefits with Social Security.
Information about Medicare COLAs for 2018, when announced, will be available at www.Medicare.gov.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com such as the following:
If you or someone else you know would like to receive future updates about developments on these and other concerns, please provide your current contact information and preferences including your preferred e-mail by creating or updating your profile here.
NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. 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.
Employers and employee benefit plan fiduciaries and administrators should consider sharing the free IRS Withholding Calculator resource offered in English, Spanish, and ASL formats with workers in annual employee benefit enrollment packages, new hire paperwork, bonus announcement and other wage related materials and other employee communications to help workers better understand and manage the tax and other effects of their annual employee benefit elections on their take-home pay. Including reminders to re-evaluate withholding and if necessary, change their W-4 withholding elections also helps employees and their families ensure that withholding elections that workers complete as part of new hire documentation are updated in response to changing taxable income and other relevant events.
Communicating the availability of these free government-resource tools to workers during the annual employee benefit plan enrollment period, year-end, raise or bonus time or other strategic times throughout the year could help employees better appreciate the tax-preferred benefit offerings provided by the employer as well as provide significant financial education benefits many workers need for little or no employer cost.
While enrollment packages typically tout the potential “tax savings” that employees can enjoy from participating in tax-favored, employer-sponsored health, group term life, qualified pension or profit-sharing, and other tax-preferred employee benefit or fringe benefit programs offered by their employers, few employees truly understand how to determine properly their necessary wage withholding on taxable wages, much less the specific effects of their employee benefit elections on their income or employment tax liability or withholding.
A better understanding of the relative tax benefits and savings of enrollment in tax-preferred benefits offered by an employer and their potential implications on the income tax withholding elected by the workers can benefit both employees and their employer. Aside from illustrating in real, meaningful terms specific to the worker the tax benefits of his election of employer-offered, tax preferred benefits, proper tax withholding helps employees avoid unnecessary over withholding that can reduce employees’ take-home pay as well as helps protect employees from unexpectedly higher year-end tax bills that often surprise workers when an employee sets his withholding too low.
While few employers or plans want to incur the potential financial costs or liability of estimating savings for individual workers, sharing information about free government-provided resources like the IRS calculator or using vendor-provided solutions that incorporate tools in employee enrollment and other communications can help employees appreciate the benefits of tax-preferred employee benefits and make more informed choices about their benefits and their withholding.
Educating employees about the availability of these free resources also is a low-cost way of providing valuable information to workers whether or not the employer or plan has a vendor offered solution that includes the same or similar tool. However, educating workers about the availability of the withholding calculator and other tools can be a particularly attractive option for an employer when the employer doesn’t have a vendor-provided option that includes that information or can only access the tool for added charges.
While many vendors offer similar tools and materials sold to employers and employee benefit plans, employers or benefit plan fiduciaries generally must pay fees, share promotional materials or meet at the requirements to deliver those resources as part of a vendor-supplied package. Utilizing these vendor supplied resources without fulfilling these preconditions could expose the employer or plan to potential copyright, trademark or other contractual or intellectual property claims from the vendor. In contrast, IRS withholding calculator and many other government tools can be used or shared freely without these concerns. Moreover, employers and plans are less likely to face challenges for sharing an unfiltered government resource than a similar tool packaged within a vendor communication package promoting other options.
Of course, regardless of whether these or other tools or information are shared as a free-standing tool or as part of a broader communication package, employers, plans and others sharing these government tools and other similar resources generally will want to ensure that the materials are distributed along with and subject to general tax advice and other disclaimers of reliance as well as statements encouraging users to consult with their own qualified tax or other qualified professionals about the users’ specific circumstance.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
Want to know more? See here for details about the author of this update, attorney Cynthia Marcotte Stamer, e-mail her here or telephone Ms. Stamer at (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at SolutionsLawPress.com.
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NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.
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Cyber and other bullying usually is discussed as a child protection concern. However bullying of adults in the workplace also can be a big employment issue.
Applying the term “harassment” to adult bullying in the workplace allows most businesses to rapidly recognize need to prevent bullying and harassment in the workplace.
The connection between bullying and harassment is rapidly apparent from the definition of bullying. The government website stopbullying.gov defines “bullying” as unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose.”
In employment or other adult environments, the word “harassment” typically is used instead of bullying to refer to aggressive unwarranted behavior against an adult. Regardless of which term is used, bullying and harassment in workplaces and other communities is disruptive for the victims, co-workers, the employment or other community and those who interact with them.
Of course by now, all businesses and their leaders are legally accountable to know that the law generally requires businesses to prevent and protect their employees against harassment by management or other employees, customers, vendors and others with whom they do business on account of sex, sexual preference, race, age, disability, National origin, religion, whistleblower status, worker’s compensation or certain other benefit claims and the exercise of a host of other protected types of conduct.
Beyond the substantial legal exposures that businesses risk from harassment in the workplace, harassment or other pulling in the work place also inevitably creates other substantial operation costs for businesses by undermining job performance of bullying victims and others, undermining morale, increasing employee turnover, creating distractions, increasing management demands, eroding trust and team work, and more.
To reduce their exposure to these legal and operational risks, most US businesses have policies, conduct training and investigations, and engage in a host of other anti-harassment activities. Even with these efforts, however, effective prevention, detection and management of bullying and other harassment behaviors in most workplaces remains a challenge. For this reason businesses and their management should constantly be on the watch for tips and tools ate them in this endeavor.
The United States government’s annual Stop Bullying Month observances each October provide an excellent opportunity for US businesses and employers to strengthen their anti-harassment risks and compliance by joining in the celebration in October and using the resources available in their anti-harassment efforts throughout the year.
Businesses also may want to take advantage of resources like stopbullying.gov that provide tips and training for identifying and addressing bullying of children and others requiring special protection.
Stopbullying.gov, for instance includes a multitude of resources for Parents, Educators, Communities, and others that can be reworked and applied and workplace and other business contexts. Beyond these generally applicable tips, The website also includes videos and other materials addressing special topics like Cyberbullying and what to do about it, Sexual Preference Harassment and many others.
Human resources and other business leaders should check out these resources and leverage them to expand their tools and strengthen their anti-harassment efforts and risk management.
About The Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for work, teachings and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares shared her thought leadership, experience and advocacy on these and other concerns by her service in the leadership of a broad range of other professional and civic organization including her involvement as the Vice Chair of the North Texas Healthcare Compliance Association, Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Board Compliance Chair and Board member of the National Kidney Foundation of North Texas, current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative and current RPTE Representative to the ABA Health Law Coordinating Council, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.
Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment and other privacy, data security and other technology, regulatory and operational risk management for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, 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 symposia and 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 and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see www.CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc.™ resources at http://www.solutionslawpress.com such as:
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.
U.S. employers, employment agencies, unions, their benefit plans and fiduciaries, and their management and service providers should move quickly to review and strengthen their employment and other practices to guard against a foreseeable surge in employee retaliation claims and judgements likely to follow the August 30, 2016 issuance by the Equal Employment Opportunity Commission (EEOC) of its new final EEOC Enforcement Guidance on Retaliation and Related Issues and concurrently published Question and Answer Guidance(Guidance).
Updating and superceding 2008 guidance previously set forth in the Retaliation Chapter of the EEOC Enforcement Manual, the Guidance details the EEOC’s current policy for investigating and enforcing the retaliation prohibitions under each of the equal employment opportunity (EEO) laws enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA) as well as the ADA’s separate “interference” prohibitions, which prohibit coercion, threats, or other acts that interfere with the exercise of ADA rights. Among other things, the Guidance discusses :
What “retaliation means” and the scope of employee activity protected by the prohibitions against retaliation included in all laws enforced by the EEOC as well as the interference prohibitions of the ADA;
Legal analysis the EEOC will use to determine if evidence supports a claim of retaliation against an employer or other party;
Detailed examples of employer actions that the EEOC says may constitute prohibited retaliation; and
Remedies available for retaliation.
Understanding and properly responding to the Guidance is critically important for employers and other subject to the EEO laws because in light of the substantial and growing liability exposures retaliation claims present and the likely that the issuance of the Guidance will further fuel these risks.
Even before the EEOC published the Guidance, retaliation and interference exposures were a substantial source of concern for most employers. Employers, employment agencies and unions caught engaging in prohibited retaliation or intimidation in violation of EEO laws can incur compensatory and (except for governmental employers) punitive damage awards, back pay, front pay, reinstatement into a job or other equitable remedies, injunctive or administrative orders requiring changes in employer policies and procedures, managerial training, reporting to the EEOC and other corrective measures, as well as substantial investigation and defense costs.
These substantial liability exposures have become particularly concerning as retaliation and interference claims also have become increasingly common over the past decade. According to the EEOC, for example, EEO law retaliation charges have remained the most frequently alleged basis of charges filed with the EEOC since 2009 and in Fiscal Year 2015 accounted for 44.5 percent of all employment discrimination charges received by EEOC.
Since the EEOC’s issuance of the Retaliation Regs are likely to encourage additional retaliation or interference claims, employers, employment agencies, unions and their management, service providers and agents should quickly to evaluate the updated guidance provided in the Retaliation Reg and act to mitigate their exposure to retaliation retaliation and interference claims under these EEO laws.
Retaliation Risks Under EEO Laws
Federal EEO laws generally prohibit employers, employment agencies, or unions from punishing or taking other adverse actions against job applicants or employees for “asserting their rights” (often referred to as “protected activity”) to be free from harassment or other prohibited employment discrimination as well as certain other conduct. Such claims generally are referred to as “retaliation claims.”
Prohibited retaliation in violation of EEO laws occurs when an employer, employment agency or union takes a materially adverse action because an applicant or employee asserts rights or engages in certain other activities protected by the EEO laws.
To prevail in a retaliation claim, an applicant, employee or other individual generally must show that:
The individual engaged in prior protected activity;
The employer, employment agency or union took a materially adverse action; and
More likely than not, retaliation caused the adverse action by the employer, employment agency or union.
Persons Protected By EEO Retaliation Rules
EEO retaliation prohibitions protect both applicants and current and former employees (full-time, part-time, probationary, seasonal, and temporary) against retaliation under the EEO laws. The retaliation prohibitions bar an employer from refusing to hire or otherwise taking adverse action against any current or former applicant or employee because of his EEO complaint or other protected activity under applicable EEO laws. The EEOC interprets the retaliation rules as prohibiting an employer from giving a false negative job reference to punish a former employee for making an EEO complaint or engaging in other protected activity as well as as prohibiting an employer from refusing to hire or otherwise retaliating or discriminating against an applicant or employee based on a complaint made or other protected activity engaged against any a prior employer. The Guidance also makes clear that the retaliation prohibitions apply regardless of an applicant or employee’s citizenship or work authorization status.
Protected Activity
“Protected activity” generally means either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.
The prohibition against an employer retaliating against an individual for “participating” in an EEO process means that an employer cannot punish an applicant or employee for filing an EEO complaint, serving as a witness, or participating in any other way in an EEO matter, even if the underlying discrimination allegation is unsuccessful or untimely. As a part of these prohibitions, the EEOC says that an employer, employment agency or union is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination. For example, depending on the facts of the particular case, it could be retaliation because of the employee’s EEO activity for an employer to:
Reprimand an employee or give a performance evaluation that is lower than it should be;
Transfer the employee to a less desirable position;
Engage in verbal or physical abuse;
Threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
Increase scrutiny;
Spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
Take action that makes the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).
The Guidance clearly states that the EEOC views participating in any capacity in a complaint process or other protected equal employment opportunity as protected activity which is protected from retaliation under all circumstances. The EEOC views other acts to oppose discrimination also as protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe the issue. EEOC’s view is that protections against retaliation extend to participation in an employer’s internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC. The EEOC also takes the position that participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred. While an employer is free to bring these to light in the EEO matter where it may rightly affect the outcome, the Retaliation Regs state it is unlawful retaliation for an employer to take matters into its own hands and impose consequences for participating in an EEO matter.
In addition to prohibition for participation in protected activities, EEO law also prohibits retaliation against an individual for “opposing” a perceived unlawful EEO practice. The EEOC construes prohibition against retaliation for opposition as prohibiting an employer or other covered entity from punishing an applicant or employee for communicating or taking other action in opposition of a perceived EEO violation if the individual acted reasonably and based on a reasonable good faith belief that the conduct opposed is or could become unlawful if repeated.
According to the EEOC, opposition also can be protected even if it is informal or does not include the words “harassment,” “discrimination,” or other legal terminology. A communication or act may be protected opposition as long as the circumstances show that the individual is conveying resistance to a perceived potential EEO violation such as, for example:
Complaining or threatening to complain about alleged discrimination against oneself or others;
Taking part in an internal or external investigation of employment discrimination, including harassment;
Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
Communicating with a supervisor or manager about employment discrimination, including harassment;
Answering questions during an employer investigation of alleged harassment;
Refusing to follow orders that would result in discrimination;
Resisting sexual advances, or intervening to protect others;
Reporting an instance of harassment to a supervisor;
Requesting accommodation of a disability or for a religious practice;
Asking managers or co-workers about salary information to uncover potentially discriminatory wages;
Providing information in an employer’s internal investigation of an EEO matter;
Refusing to obey an order reasonably believed to be discriminatory;
Advising an employer on EEO compliance;
Resisting sexual advances or intervening to protect others;
Passive resistance (allowing others to express opposition);
Requesting reasonable accommodation for disability or religion;
Complaining to management about EEO-related compensation disparities;
Talking to coworkers to gather information or evidence in support of a potential EEO claim; or
Other acts of opposition.
In order for the protection against opposition to apply, however, the individual must act with a reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated. Opposition not based on such a good faith belief is not protected. Employers should note that the EEOC takes the position that opposition by an employee could qualify as reasonable opposition protected against retaliation when an employee or applicant complains about behavior that is not yet legally harassment (i.e., even if the mistreatment has not yet become severe or pervasive) or to complain about conduct the employee believes violates the EEO laws if the EEOC has adopted that interpretation, even if some courts disagree with the EEOC on the issue.
Furthermore, an individual opposing a perceived violation of an EEO law is disqualified for protection against retaliation for his opposition unless the individual behaves in a reasonable manner when expressing his opposition. For example, threats of violence, or badgering a subordinate employee to give a witness statement, are not protected opposition.
Subject to these conditions, however, the Guidance states that retaliation for opposing perceived unlawful EEOC practices need not be applied directly to the employee to qualify for protection. If an employer, employment agency or union takes an action against someone else, such as a family member or close friend, in order to retaliate against an employee, the EEOC says both individuals would have a legal claim against the employer.
Moreover, according to the EEOC, the prohibitions against retaliation for participation and opposition apply regardless of whether the person is suffers the retaliation for acting as a witness or otherwise participating in the investigation of a prohibited practice regarding an EEO complaint brought by others, or for complaining of conduct that directly affects himself.
Materially Adverse Action
To fall within EEO law prohibitions against retaliation, the retaliatory actions must be “materially adverse,” which the Guidance defines to include any action that under the facts and circumstances might deter a reasonable person from engaging in protected activity. This definition of “materially adverse” sweeps broadly to include more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, or other actions that can be challenged directly as employment discrimination. It also encompasses within the scope of retaliation employer action that is work-related, as well as other actions with no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity.
Whether an action is materially adverse depends on the facts and circumstances of the particular case. The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month (even though the pay was later reimbursed) were both “materially adverse actions” that could be challenged as retaliation. The Supreme Court has also said that actionable retaliation includes: the FBI’s refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.
In contrast, a petty slight, minor annoyance, trivial punishment, or any other action that is not likely to dissuade an employee from engaging in protected activity in the circumstances is not “materially adverse.” For example, courts have concluded on the facts of given cases that temporarily transferring an employee from an office to a cubicle was not a materially adverse action and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were not materially adverse.
The facts and circumstances of each case determine whether a particular action is retaliatory in that context. For this reason, the same action may be retaliatory in one case but not in another. Depending on the facts, other examples of “materially adverse” actions may include:
Work-related threats, warnings, or reprimands;
Negative or lowered evaluations;
Transfers to less prestigious or desirable work or work locations;
Making false reports to government authorities or in the media;
Filing a civil action;
Threatening reassignment;
Scrutinizing work or attendance more closely than that of other employees, without justification;
Removing supervisory responsibilities;
Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
Taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
ADA Interference Claims
In addition to the need to manage potential exposures for prohibited retaliation, employers, employment agencies and unions also should be careful to manage their exposure to potential liability arising from claims for wrongful interference and individual’s exercise of the disability rights or protections granted under the ADA.
The ADA generally prohibits disability discrimination, limits an employer’s ability to ask for medical information, requires confidentiality of medical information, and gives employees who have disabilities the right to reasonable accommodations at work absent undue hardship and like other EEO laws, prohibits retaliation. In addition to its prohibitions against retaliation, however, the ADA also more broadly prohibits “interference” with statutory rights under the ADA.
Interference is broader than retaliation. The ADA’s interference provision makes it unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights.
In addition, the ADA also prohibits employers from interfering with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert any of these rights such as using threats or other actions to discourage someone from asking for, or keeping, a reasonable accommodation; intimidating an applicant or employee into undergoing an unlawful medical examination; or pressuring an applicant or employee not to file a disability discrimination complaint.
Prohibited interference may be actionable under the ADA even if ineffective and even if the person subjected to intimidation goes on to exercise his ADA rights.
While acknowledging that some employer actions may be both retaliation and interference, or may overlap with unlawful denial of accommodation, the Guidance identifies the following actions as examples of interference prohibited under the ADA:
Coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
Intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
Threatening an employee with loss of employment or other adverse treatment if he does not “voluntarily” submit to a medical examination or inquiry that is otherwise prohibited under the statute;
Issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
Interfering with a former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
Subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.
According to the EEOC, a threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.
Strategies To Help Deter Or Rebut Retaliation Charges
Even though individuals claiming retaliation technically bear the burden of proving more likely than not that he suffered an adverse employment action more probably than not as a result of retaliation, an employer, employment agency or union charged with illegal retaliation frequently need to rebut or undermine a claimant’s evidence of retaliation by having and introducing admissible evidence that it a non-retaliatory reason for taking the challenged action such as evidence that:
The employer was not, in fact, aware of the protected activity;
There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as poor performance; inadequate qualifications for position sought; qualifications, application, or interview performance inferior to the selectee; negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual); misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); or reduction in force or other downsizing;
Similarly-situated applicants or employees who did not engage in protected activity were similarly treated;
Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive; or
Other credible evidence showing a legitimate, non-discriminatory and non-retalitory motive behind the action.
It is important that employer other other potential defendants in retaliation actions recognize and take appropriate steps to create and retain evidence documenting these or other legitimate business reasons justifying the action prior to taking adverse action. Many employer or other defendants charged with discrimination or retaliation discover too late that a rule of evidence commonly referred to as the “After Acquired Evidence Doctrine” often prevents an employer or other defendant from using documentation or other evidence of motive created after the adverse action occurs. Consequently, employer and other potential targets of retaliation claims before taking the adverse action would be wise to carefully collect, document and retain the evidence and analysis showing their adverse action was taken for a legitimate, nonretalitory, nondiscriminatory reason rather than for any retaliatory purpose.
Other Defensive Actions & Strategies
Beyond taking care to document and retain evidence of its legitimate motivations for taking an adverse employment action, employers, employment agencies and unions interested in avoiding or enhancing their defenses against retaliation or interference claims also may find it helpful to:
Maintain a written, plain-language anti-retaliation and anti-interference policy that provides practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;
Send a message from top management that retaliation and interference are prohibited and will not be tolerated;
Ensure that top management understands and complies with policies against prohibited discrimination, retaliation and interference;
Consistently and fairly administer all equal employment opportunity and other policies and procedures in accordance with applicable laws in a documented, defensible manner;
Post and provide all required posters or other equal employment opportunity notices;
Timely and accurately complete and file all required EEO reports;
Clearly communicate orally and in writing the policy against prohibited retaliation and interference, as well as procedures for reporting, investigating and addressing concerns about potential violations of these policies in corporate policies as well as to employees complaining or participating in investigations or other protected activities;
Conduct documented training for all managers, supervisors and other employees and agents of the employer about policies against prohibited discrimination, retaliation, and interference including, as necessary, specific education about specific behaviors or situations that could raise retaliation or interference concerns, when and how to report or respond to such concerns and other actions to take to prevent or stop potential retaliation and interference;
Establish and administer clear policies and procedures for reporting and investigating claims or other indicators of potential prohibited employment discrimination, retaliation, interference including appropriate procedures for monitoring and protecting applicants and workers who have made claims of discrimination or have a record of involvement in activities that might qualify for corrective action;
Review performance, compensation and other criteria for potential evidence of overt or hidden bias or other evidence of potential prohibited retaliation or interference and take documented corrective action as needed to prevent improper bias from adversely corrupting decision-making process;
Conduct timely, well-documented investigations of all reports or other evidence of suspected discrimination, retaliation, and interference including any disciplinary, remedial or corrective action taken or foregone and the justification underlying these actions;
Obtain and enforce contractual reassurances from recruiting, staffing and other contractors to adhere to, and cooperate with the employer in its investigation and redress of the nondiscrimination, data collection and reporting, anti-retaliation and anti-interference requirements of equal employment opportunity and other laws;
Incorporate appropriate inquiries and other procedures for documented evaluating and monitoring that hiring, staffing, performance review, promotion, demotion, discipline, termination and other employment decisions and actions for evidence or other indicators of potential prohibited discrimination, retaliation, interference or other prohibited conduct and take corrective action as necessary based on the evidence developed; and
Designate appropriately empowered and trained members of the management of the employer to receive and investigate complaints and other potential concerns;
Arrange for an unbiased third party review of the adverse action or the performance or other decision criteria, processes and analysis that the employer or other defendant contemplates relying on to decide and implement employment decisions for indicators of potential discriminatory, retaliatory or other illegal or undesirable biasand take corrective action as needed to address those concerns before undertaking employment actions;
Evaluate and allocate appropriate funds within the employer’s budget to support the employer’s compliance efforts as well as to provide for the availability of sufficient funds to investigate and defend potential charges or public or private charges of illegal discrimination, retaliation or interference through the purchase of employment practices liablity or other insurance coverages or otherwise;
If a manager or other party recommends an adverse action in the wake of an employee’s filing of an EEOC charge or participation in other protected activity, conducting or arranging for an another party to ndependently evaluate whether the adverse action is appropriate;
Proactively seek assistance from qualified legal counsel with the design and review of policies, practices and operations, investigation and analysis of internal or external complaints or other concerns about potential prohibited discrimination, retaliation or interference, review and execution of termination, discipline or other workforce events to mitigate discrimination, retaliation or interference risks as well as the defense of EEOC or private enforcement actions; and
Be ever diligent in your efforts to prevent, detect and redress actions or situations that could be a basis for retaliation or interference claims.
About The Author
Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Labor & Employment,”“Tax: Erisa & Employee Benefits” “Health Care” and “Business and Commercial Law” by D Magazine.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.
Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at www.Solutionslawpress.com.
In keeping with President Obama’s administration long agenda of expanding equal employment and discrimination protections and enforcement, the Obama Administration now is proposing new regulations that if adopted as proposed, would expand the equal employment and nondiscrimination protections applicable for individuals receiving services through federal apprenticeships and other programs or activities provided by partners at American Job Centers and other key workforce programs that aid jobseekers administered by the U.S. Department of Labor’s Civil Rights Center (CRC).
In a Notice of Proposed Rulemaking released by CRC on January 25, 2016, CRC proposed to revise its current regulations, which were originally adopted in 1999 both:
To implement the expanded nondiscrimination and equal opportunity obligations made under Section 188 of the Workforce Innovation and Opportunity Act (WIOA) signed into law in July 2014; and
To reflect the Obama Administration’s expansive interpretation, enforcement and other practices of protections for transgender, gender identity, pregnancy, limited English proficiency (LEP) and other individuals against discrimination implemented by the Obama Administration in its enforcement of other federal equal employment and other nondiscrimination laws.
WIOA Implementation Identified As Reason For Proposed Regulations
In the cases of the CRC’s proposed regulations, the CRC identifies its need to adopt regulations to implement the WIOA as the reason for its restatement of its equal opportunity regulations at this time.
The Obama Administration is using its adoption of implementing regulations for WIOA Section 188 to revise and update the CRC’s equal opportunity rules generally to reflect changes in the interpretation of federal employment and other nondiscrimination rules already adopted during Mr. Obama’s presidency in other federal equal rights and nondiscrimination laws and regulations.
WIOA Section 188 prohibits discrimination against individuals participating in any job training for adults and youth, apprenticeships, and programs or activities provided by partners at American Job Centers or other covered program or activity that receives financial assistance under Title I of WIOA because of the race, color, religion, sex, national origin, age, disability, or political affiliation or belief of the individual participating in the program and, for beneficiaries only, because of their citizenship status. The WIOA discrimination and equal opportunity rules apply to recipients of financial assistance under Title I of WIOA and to program partners at American Job Centers that offer programs or activities through the workforce development system including partners that conduct related programs or activities through the One-Stop delivery system such as Unemployment Insurance, Temporary Assistance for Needy Families, adult education, Trade Adjustment Assistance, and others. The CRC’s proposed regulations are the latest of the growing responsibilities and risks that private businesses and state and local government agencies increasingly face to lawsuits, agency audits and sanctions, program disqualification, and other enforcement actions under federal equal employment opportunity and nondiscrimination requirements, particularly in light of the expanded scope and applicability of disability and various other federal nondiscrimination laws implemented during the Obama Administration by statutory, regulatory, executive order or other federal action. The extension of these changes into the CRC regulations reflects the continuing commitment of the Obama Administration to implement and enforce these expansions as fully as possible before Mr. Obama leaves office.
Highlights of Proposed CRC Regulations
If adopted as proposed by the CRC, the proposed rule would update the equal opportunity and nondiscrimination requirements applicable to American Job Centers and other WIOA partners working within the workforce development system to:
Align the equal opportunity and nondiscrimination protections for individuals in WIOA programs with current regulations and guidance issued by the Departments of Justice and Education, the Equal Employment Opportunity Commission and other federal agencies regarding the following equal opportunity and discrimination laws:
Title VI and Title VII of the Civil Rights Act of 1964;
Title IX of the Education Amendments of 1972;
The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008; and
Section 504 of the Rehabilitation Act of 1973.
Clarify that sex discrimination under the WIOA, as under the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, includes discrimination based on transgender status, gender identity, or sex-stereotyping as well as pregnancy, childbirth, and related medical conditions.
Clarify that discrimination based on national origin may include discrimination because someone has limited English proficiency (LEP) and strengthen the ability of the Labor Department and private plaintiffs to enforce this expectation by requiring recipients and partners to:
Record the primary language of applicants, participants and beneficiaries in their programs;
Take “reasonable steps” to ensure that LEP individuals have meaningful access to aid, benefits, services, and training;
Notify participants about these rights, including offering oral interpretation and written translation of both hard-copy and electronic materials in non-English languages.
The Proposed Rule also would clarify which CRC views as “vital” documents required to be translated and include an appendix describing promising practices to help recipients comply with their legal obligations and includes the components of a plan to facilitate meaningful access for individuals with limited English proficiency.
Change the equal opportunity notice or poster that the Labor Department requires recipients and partners to post to inform individuals participating in their programs and activities about their equal employment opportunity protections and rights to reflect these expanded rights and responsibilities by among other things, clearly state that “sex,” as a prohibited basis for discrimination, includes pregnancy, childbirth, and related medical conditions, transgender status, gender identity, and sex stereotyping and that discrimination against LEP persons may be a form of national origin discrimination.
Promote the ability of the Labor Department and private plaintiffs to enforce compliance by among other things:
Implementing clearer and broader descriptions of recipient and partner responsibilities, more effective Equal Opportunity Officers, and enhanced data collection;
Expanding recipient and partner recordkeeping and requiring other actions that will make proof of violations easier;
Requiring annual monitoring, instead of the current “periodic” monitoring and other increased enforcement in accord with the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and in accord with Title IX of the Education Amendments of 1972.
CRC Proposal Reflects Broader Agency Regulatory & Enforcement Agenda For All U.S. Businesses & State & Local Agencies
While the CRC’s proposed regulations most directly impact those providing services or programs to jobseekers and other assistance under CRC administered programs, the proposed regulations also are yet another strong sign for private businesses and state and local government agencies alike of the need to step up their compliance and risk management in light of expanded responsibilities and enforcement of federal equal employment opportunity laws under the Obama Administration. As a result, all U.S. businesses as well as state and local government agencies should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges. All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws. When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements as well as strengthen oversight and investigation practices, tighten vendor contracts, explore insurance or other options for planning for funding costs of defending investigations, litigation or other enforcement actions, and other heightened compliance and risk management strategies and practices.
About The Author
Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.
A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.
Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 30- year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.
Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.
Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and 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 Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. 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 also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, 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. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, 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.
Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; 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; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also 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 childhood development 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. For additional information about Ms. Stamer, see CynthiaStamer.com or StamerChadwickSoefje.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, 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, Inc. ™ resources at SolutuonsLawPress.com such as:
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.
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.
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 Policyand 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 Empowermenthere.
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 Empowermenthere.
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 Empowermenthereby sharing ideas, tools and other solutions and other resources. The Coalition For Responsible Health Care Policyprovides 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 availablehere, or our HR & Benefits Update electronic publication available heresuch 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.comor byregistering 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.
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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.comor byregistering 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.
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.
Human resources and other management leaders are watching Washington to see if the change in Congressional control resulting from the November 4, 2014 mid-term election ushers in a more management friendly federal legal environment. Since President Obama took office, the Democrats aggressive pursuit of health care, minimum wage and other federal pro-labor legislation, regulations and enforcement has increased management responsibilities, costs and liabilities.
Nationally recognized management attorney, public policy advisor and advocate, author and lecturer Cynthia Marcotte Stamer will help human resources and other management leaders prepare for 2015 when she speaks on “2015 Federal Legislative, Regulatory & Enforcement Update: What HR & Benefit Leaders Should Expect & Do Now” at the 2015 Dallas HR monthly luncheon series kickoff meeting on January 13, 2014.
About The Program
While November 4, 2014 Republican election victories gave Republicans a narrow majority in both the House and Senate when the new Congress takes office January 3, 2015, the new Republican Majority may face significant challenges delivering on their promises to move quickly to enact more business-friendly health care, guest worker, tax and other key reforms Republicans say will boost the employment and the economy.
While President Obama and Democrat Congressional leaders say they plan to work with the new majority, President Obama already is threatening to use vetoes, regulations and executive orders to block Republicans from obstructing or rolling back his pro-labor policy and enforcement agenda. When the new Congress takes office, the narrowness of the Republican Majority in the Senate means Republicans can’t block a Democratic filibuster or override a Presidential veto without recruiting some Democratic support.
As the Democrats and Republicans head into battle again, Board Certified Labor & Employment attorney and public policy advocate Cynthia Marcotte Stamer will help human resources and other management leaders get oriented for the year ahead by sharing her insights and predictions on the legislative, regulatory and enforcement agendas that HR, benefit and other business leaders need to plan for and watch in 2015. Among other things, Ms. Stamer will:
Discuss how management can benefit from monitoring and working to influence potential legislative, regulatory and enforcement developments when planning and administering HR and related workforce policies;
Discuss the key workforce and other legislative, regulatory and enforcement priorities and proposals Democrats and Republicans plan to pursue during 2015;
Share her insights and predictions about how the narrow Republican majority, Mr. Obama’s lame duck presidency and other factors could impact each Party’s ability to pursue its agenda
Share tips management leaders can use to help monitor developments and to help shape legislation, regulation and enforcement through Dallas HR, SHRM and other organizations as well as individually;
Learn tips for anticipating and maintaining flexibility to respond to legislative, regulatory and enforcement developments; and
More
To register or get more details about the program, DallasHR, or both, see http://www.dallashr.org.
About Ms. Stamer
Board certified labor and employment attorney, public policy leader, author, speaker Cynthia Marcotte Stamer is nationally and internationally recognized and valued for her more than 25 years of work advising and representing employers, insurers, employee benefit plans, their fiduciaries and advisors, business and community leaders and governments about workforce, employee benefits, social security and pension, health and insurance, immigration and other performance and risk management, public policy and related regulatory and public policy, management and other operational concerns.
Throughout her career, Ms. Stamer continuously both has helped businesses and their management to monitor and respond to federal and state legislative, regulatory and enforcement concerns and to anticipate and shape federal, state and other laws, regulations, and enforcement in the United States and internationally.
Well known for her leadership on workforce, health and pension policy through her extensive work with clients as well as through her high profile involvements as the Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment, a founding Board member of the Alliance for Health Care Excellence, a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA), and the State Bar of Texas leadership and other involvements with the ABA including her annual service leading the annual agency meeting of Joint Committee on Employee Benefits (JCEB) representatives with the HHS Office of Civil Rights and participation in other JCEB agency meetings, past involvements with legislative affairs for the Texas Association of Business and Dallas HR and others, and many speeches, publications, and other educational outreach efforts, Ms. Stamer has worked closely with Congress and federal and state regulators on the Patient Protection & Affordable Care Act and other health care, pension, immigration, tax and other workforce-related legislative and regulatory reforms for more than 30 years. One of the primary drafters of the Bolivian Social Security reform law and a highly involved leader on U.S. workforce, benefits, immigration and health care policy reform, Ms. Stamer’s experience also includes working with U.S. and foreign government, trade association, private business and other organizations to help reform other countries’ and U.S. workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Ms. Stamer also contributes her policy, regulatory and other leadership to many professional and civic organizations including 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, a Substantive Groups & Committee Member; a member of the leadership council of 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; the current Vice Chair of the ABA TIPS Employee Benefit Committee, and the past Coordinator of the Gulf Coast TEGE Council TE Division.
The publisher and editor of Solutions Law Press, Inc. who serves on the Editorial Advisory Boards of Employee Benefit News, HR.com, InsuranceThoughtLeadership.com and many other publications, Ms. Stamer also is a prolific and highly respected author and speaker, National Public Radio, CBS, NBC, and other national and regional news organization, Atlantic Information Services, The Bureau of National Affairs, HealthLeaders, Telemundo, Modern Healthcare, Business Insurance, Employee Benefit News, the Employee Benefits News, World At Work, Benefits Magazine, InsuranceThoughtLeadership.com, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, CEO Magazine, CFO Magazine, CIO Magazine, the Houston Business Journal, and many other prominent news and publications. She also serves as a planning faculty member and regularly conducts training and speaks on these and other management, compliance and public policy concerns for these and a diverse range of other organizations. For additional information about Ms. Stamer, see www.cynthiastamer.com.
For Added Information and Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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.
Learn More Details By Participating In November 13, 2014 WebEx Briefing
Employers of 100 or more full-time employees that plan currently offering or planning to offer after November 4, 2014 health plans with mandate only or other “skinny” plan designs which do not provide “substantial coverage” for both in-patient hospitalization and physician services should re-evaluate the implications of their proposed plan design as well as existing and planned employee enrollment or other communications about those plans, in light of the new guidance provided by Notice 2014-69 released by the Internal Revenue Service (IRS) today. Learn all the details about this new guidance and its implication by participating in our November 13 , 2014 briefing.
Plans Must Provide “Substantial Coverage” for Both In-Patient Hospitalization & Physician Services To Provide Minimum Value
Notice 2014-69 makes it official that the Department of Treasury (including the IRS) and Department of Health and Human Services (collectively the Departments)believe that group health plans that fail to provide substantial coverage for in-patient hospitalization services or for physician services (or for both) (referred to in the Notice as Non-Hospital/Non-Physician Services Plans) do not provide the “minimum value” necessary to fulfill the minimum value requirements of Code §36B and 4080H(b).
The Notice also notifies sponsoring employers about the Departments expectations about notifications and other communications to employees about Non-Hospital/Non-Physician Services Plans) as well as shares details about the Departments plans for implementing their interpretation in planned final regulations by March, 2015.
Standards On Employer Communications About Non-Hospital/Non-Physician Services Plans
The Notice cautions employers about the need to use care in communicating with employees about Non-Hospital/Non-Physician Services Plan. Among other things, the Notice states that an employer that offers a Non-Hospital/Non-Physician Services Plan (including a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan) to an employee must:
Not state or imply in any disclosure that the offer of coverage under the Non-Hospital/Non-Physician Services Plan precludes an employee from obtaining a premium tax credit, if otherwise eligible, and
Timely correct any prior disclosures that stated or implied that the offer of the Non-Hospital/Non-Physician Services Plan would preclude an otherwise tax-credit-eligible employee from obtaining a premium tax credit.
Without such a corrective disclosure, the Notice warns that a statement (for example, in a summary of benefits and coverage) that a Non-Hospital/Non-Physician Services Plan provides minimum value will be considered to imply that the offer of such a plan precludes employees from obtaining a premium tax credit. However, an employer that also offers an employee another plan that is not a Non-Hospital/Non/-Physician Services Plan and that is affordable and provides minimum value (MV) is permitted to advise the employee that the offer of this other plan will or may preclude the employee from obtaining a premium tax credit.
Anticipated Approach In Planned Regulations
Regarding the Departments plans to adopt regulations implementing the interpretation of Code § 36B announced in the Notice, the Notice indicates:
HHS intends to promptly propose amending 45 CFR 156.145 to provide that a health plan will not provide minimum value if it excludes substantial coverage for in-patient hospitalization services or physician services (or both).
Treasury and the IRS intend to issue proposed regulations that apply these proposed HHS regulations under Code section 36B. Accordingly, under the HHS and Treasury regulations, an employer will not be permitted to use the MV Calculator (or any actuarial certification or valuation) to demonstrate that a Non-Hospital/Non-Physician Services Plan provides minimum value.
Treasury and IRS anticipate that the proposed changes to regulations will be finalized in 2015 and will apply to plans other than Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plans on the date they become final rather than being delayed to the end of 2015 or the end of the 2015 plan year. As a result, a Non-Hospital/Non-Physician Services Plan (other than a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan) should not be adopted for the 2015 plan year.
Solely in the case of an employer that has entered into a binding written commitment to adopt, or has begun enrolling employees in, a Non-Hospital/Non-Physician Services Plan prior to November 4, 2014 based on the employer’s reliance on the results of use of the MV Calculator (a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan), however, Notice 2014-69 states the Departments anticipate that final regulations, when issued, will not be applicable for purposes of Code section 4980H with respect to the plan before the end of the plan year (as in effect under the terms of the plan on November 3, 2014) if that plan year begins no later than March 1, 2015.
Employers offering Non-Hospital/Non-Physician Services Plans should “exercise caution in relying on the Minimum Value Calculator to demonstrate that these plans provide minimum value for any portion of a taxable year after publication of the planned final regulations.
The IRS will not require an employee to treat a Non-Hospital/Non-Physician Services Plan as providing minimum value for purposes of an employee’s eligibility for a premium tax credit under Code section 36B, regardless of whether the plan is a Pre-November 4, 2014 Non-Hospital/Non-Physician Services Plan before final regulations take effect.
Employers & Plans Most Likely To Be Affected
The interpretation of minimum value and planned future regulatory changes announced in Notice 2014-69 primarily will impact large employers subject to the “pay or play” shared responsibility rules of Code § 4980H that offer a health plan providing coverage that meets the “minimum essential coverage” standards of Code § 4980H.
Under Code § 4980H(a), large employers that fail to offer employee and dependent coverage under a health plan providing “minimum essential coverage” to each full-time employee generally become liable to pay an employer shared responsibility payment of $165 per month ($2000 per year) (commonly referred to as the “A Penalty”) for each full-time employee.
In contrast, the penalties (commonly referred to as the “B Penalty”) created under Code § 4980H(b) generally comes into play when a covered large employer offers health plan coverage under a health plan providing minimum essential coverage but the plan either:
Does not provide minimum value; or
The cost to the employee for coverage exceeds 9.5% of the employee’s family adjusted gross income or an otherwise applicable safe harbor amount allowed under IRS regulations.Register For Briefing To Learn More
To learn more about Notice 2014-69 and its implications on employer health plan obligations and Code § 4980H shared responsibility exposures, register to participate in a special Solutions Law WebEx Briefing on the new guidance conducted by Attorney Cynthia Marcotte Stamer on Thursday, November 13, 2014 from Noon to 1:00 p.m. Central Time here.
Assuming at least one full-time employee of a covered large employer receives a subsidy for enrolling in health coverage through a health care exchange or “Marketplace” established under ACA, the B Penalty generally is equal to $250 per month ($3000 per year) multiplied by the number of such subsidized employees of the employer.
Learn More By Joining November 13, 2014 Solutions Law Press, Inc. Virtual Briefing Register Now!
To learn more about Notice 2014-69 and its implications on employer health plan obligations and Code § 4980H shared responsibility exposures, register to participate in a special Solutions Law WebEx Briefing on the new guidance conducted by Attorney Cynthia Marcotte Stamer on Thursday, November 13, 2014 from Noon to 1:00 p.m. Central Time here.
During the briefing, Ms. Stamer will:
Explain what health benefits, if any, employers must offer employees under current ACA guidance
Brief participants on this new guidance and other related guidance
Discuss potential implications for employers and their health plans
Discuss potential options for employers dealing with these plans and
Take questions from virtual audience participants as time permits.
Registration Fee is $35.00 per person Registration required for each virtual participant. Payment required via website registration in advance of the program.. Payment only accepted via website PayPal. No checks or cash accepted. Participation is limited and available on a first come, first serve basis. Persons not registered at least 24 hours in advance not guaranteed to receive access information or materials prior to commencement of the briefing.
This briefing will be conducted via WebEx over the internet. Participants may have the opportunity to participate via telephone, provided that participants electing to participate may incur added charges for telephone connectivity. Solutions Law Press, Inc. is not responsible for any power or system failures. Solutions Law Press, Inc. also expects to offer the opportunity for individuals unable to participate in the live briefing to listen to a recording of the briefing beginning approximately one week after the program via the Internet by registering, paying the required registration fee and following listening instructions received in response to such registration.
A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and health benefit consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker Board Certified in Labor & Employment Law, Ms. Stamer presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com), Insurance Thought Leadership,com and Employee Benefit News, and various other publications. With extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on health and other employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, as well as state legislatures, attorneys general, insurance and labor departments, and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training and serves on the faculty and planning committees of a multitude of symposium and other educational programs. See http://www.CynthiaStamer.com for more details.
A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and health benefit consultant Cynthia Marcotte Stamer has 25 plus years’ experience advising and representing private and public employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker Board Certified in Labor & Employment Law, Ms. Stamer presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com), Insurance Thought Leadership,com and Employee Benefit News, and various other publications. With extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on health and other employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, as well as state legislatures, attorneys general, insurance and labor departments, and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training and serves on the faculty and planning committees of a multitude of symposium and other educational programs. See http://www.CynthiaStamer.com. for more details.
About Solutions Law Press, Inc.™
Solutions Law Press, Inc.™ provides business and management information, tools and solutions, training and education, services and support to help organizations and their leaders promote effective management of legal and operational performance, regulatory compliance and risk management, data and information protection and risk management and other key management objectives. Solutions Law Press, Inc.™ also conducts and assist businesses and associations to design, present and conduct customized programs and training targeted to their specific audiences and needs.
For Added Information and Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
The U.S. Equal Employment Opportunity Commission (EEOC) recently is suing pipe fittings manufacturer EZEFLOW USA of New Castle, PA for allegedly violating federal employment discrimination laws by refusing to give a veteran with post-traumatic stress disorder (PTSD) unpaid leave and then firing him as a result of his PTSD disability. disability discrimination under the Americans with Disabilities Act (ADA). The lawsuit highlights the growing emphasis of the EEOC on enforcing the rights of veterans and others with disabilities against employers that it perceives violate federal disability and other discrimination laws.
According to the EEOC’s lawsuit in EEOC v. EZEFLOW USA, Inc., Civil Action No. 2:14-cv-00527-MPK (W.D., Pa), Adam Brant, a U.S. Marine Corps veteran who served in both Iraq and Afghanistan, worked as a maintenance technician for EZEFLOW USA, at its U.S. headquarters in New Castle, Pa. While there, he experienced seizures later determined to be caused by PTSD. Brant provided the company’s human resources representative with a note from his neurologist requesting that Brant be off work for six weeks, and specifically restricting him from driving, heights and working with heavy machinery during that period.
According to the EEOC allegations, EZEFLOW USA maintains a policy of providing up to 26 weeks of paid leave to non-probationary employees The EEOC alleged that EZEFLOW USA first denied the request made by Brant for six weeks of unpaid medical leave because Brant was still a probationary employee and then later terminated him.
The EEOC says these actions violated the Americans with Disabilities Act (ADA), which prohibits employers from firing an individual because of his disability. The ADA also requires employers to provide a reasonable accommodation, including granting unpaid medical leave, to an employee with a disability unless the company can show it would be an undue hardship to do so.
Over the past several years, the EEOC has stepped up its enforcement and outreach to employers on the rights of veterans and others with disabilities. In light of this growing enforcement emphasis, businesses should review and tighten their employment practices for dealing with employees and applicants with military service or other related disabilities. When undertaking these efforts, employers should review recent guidance highlighting the EEOC and other federal agency’s increasing proactiveness on behalf of veterans and others with disabilities. For instance, after holding public hearings on Nov. 16, 2011 entitled “Overcoming Barriers to the Employment of Veterans with Disabilities, ” the EEOC issued two revised publications addressing veterans with disabilities and the ADA. The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how the EEOC perceives employers can prevent disability-based discrimination and provide reasonable accommodations. The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that the EEOC perceives may be necessary to help veterans with disabilities obtain and successfully maintain employment.
This and other guidance helps provide a road map to employers for updating their employment and other practices to mitigate risks to discrimination suits by applicants and employees with service related or other disabilities.
In response to this and other evolving guidance and the EEOC’s heightened enforcement emphasis, all organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges. Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments on whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.
Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes. In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.
For Help With Compliance & Risk Management and Defense
If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.
THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Osceola Community Hospital Refused To Hire Child Care Worker With Cerebral Palsy Who Had Worked As Volunteer
Osceola Community Hospital in Sibley, Iowa will pay $75,000 and furnish other relief to settle an Americans With Disabilities Act (ADA) disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for its refusal to hire a child care worker with cerebral palsy. The case shows both the need for health care and other employers to have sufficient evidence to support decisions not to hire disabled workers for safety reasons as well as the potential risks that hospitals or other face when refusing to hire disabled individuals who have been allowed to work as volunteers in their organizations.
The EEOC charged a day care center operated by the hospital, Bright Beginnings of Osceola County, unlawfully failed to hire a volunteer employee into a paid position for which she was qualified because of her cerebral palsy. Although the woman who brought the charge of discrimination against the hospital already volunteered in the day care center and held a job driving a school bus, the EEOC’s investigation revealed the county refused to hire her into a paying job in the center out of an unfounded fear that her disability meant that she could not safely care for the children.
Judge Mark Bennett entered a consent decree on February, 28, 2014, resolving the brought by the EEOC in EEOC v. Osceola Community Hospital d/b/a Bright Beginnings of Osceola County, Civil Action No. 5:12-cv-4087 (N.D. Iowa, Sept. 26, 2012 that orders Osceola Community Hospital to pay $75,000 to the discrimination victim. The decree also requires the hospital to institute a policy prohibiting discrimination on the basis of disability and to distribute the policy to all of its employees. The hospital also must train its employees and report regularly to the EEOC on its compliance with the ADA.
The lawsuit provides another example to health care and other employers of their growing exposure to disability discrimination claims under the ADA. The EEOC action and lawsuit highlights the importance of employers ensuring that decisions to refuse to hire disabled workers for safety reasons are based upon appropriate evidence of actual safety concerns that prevent the worker from safely performing the assigned duties with or without reasonable accommodation.
The fact that the worker in this case had in fact worked as a volunteer likely created additional challenges in defending the decision. The use of volunteer workers in health industry businesses is a common practice that may justify special care before those organizations deny employment to a former volunteer on the basis of safety concerns associated with the disabilities of the applicant or worker both to document the reasonable basis of the safety concern and that the concern could not be adequately resolved through reasonable accommodation.
Eenforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations.
The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.
Health care and organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current disability discrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges. Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments concerning whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.
Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes. In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.
For Help With Compliance & Risk Management and Defense
If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.
THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
The Office of FCCP posted a third round of Frequently Asked Questions (FAQs) answering questions from contractors and the general public about provisions in the recently published Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503) Final Rules. These FAQs address implementation issues, such as the schedule for contractors to come into compliance with the affirmative action requirements of Subpart C of the new regulations. These latest FAQs, published on the OFCCP Web site and marked with a “NEW” banner, are part of a series of FAQs, guidance materials, and resources that OFCCP is providing to contractors and the public between now and the March 24, 2014, effective date of the new rules.
The VEVRAA FAQs are available here. The Section 503 FAQs are available here.
For Assistance or More Information
If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Helpful Resources & Other Information
We hope that this information is useful to you. If you found these updates of interest, you also 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 . You also can get access to information about how you can arrange for 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. 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. You can reach other recent updates and other informative publications and resources.
The Office of Federal Contract Compliance Programs (OFCCP) posted a third round of Frequently Asked Questions (FAQs) answering questions from contractors and the general public about provisions in the recently published Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503) Final Rules. These FAQs address implementation issues, such as the schedule for contractors to come into compliance with the affirmative action requirements of Subpart C of the new regulations. These latest FAQs, published on the OFCCP Web site and marked with a “NEW” banner, are part of a series of FAQs, guidance materials, and resources that OFCCP is providing to contractors and the public between now and the March 24, 2014, effective date of the new rules.
The VEVRAA FAQs are available at here. The Section 503 FAQs are available at here
For Assistance or More Information
If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Helpful Resources & Other Information
We hope that this information is useful to you. If you found these updates of interest, you also 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 . You also can get access to information about how you can arrange for 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. 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. You can reach other recent updates and other informative publications and resources.
Employers should expect heighten scrutiny and enforcement in the labor law areas identified in the “2013 Top Management Challenges Facing the Department List” recently published by the U.S. Department of Labor Office of Inspector General. Employers can expect to see the Labor Department and its component agencies acting to tighten oversight and enforcement in these areas in response to the OIG list.
For 2013, the OIG identified the following as the most serious management and performance challenges facing the Department:
Protecting the Safety and Health of Workers
Protecting the Safety and Health of Miners
Improving Performance Accountability of Workforce Investment Act Grants
Ensuring the Effectiveness of the Job Corps Program
Reducing Improper Payments
Ensuring the Security of Employee Benefit Plan Assets
Securing and Protecting Information Management Systems
Ensuring the Effectiveness of Veterans’ Employment and Training Service Programs
In the report accompanying the OIG list, the OIG presents the challenge, the OIG’s assessment of the Department’s progress in addressing the challenge, and what remains to be done. These top management challenges are intended to identify and help resolve serious weaknesses in areas that involve substantial resources and provide critical services to the public. Typically, the identification of an area of concern by the OIG prompts tightening of processes and enforcement.
For Assistance or More Information
If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Helpful Resources & Other Information
We hope that this information is useful to you. If you found these updates of interest, you also 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 . You also can get access to information about how you can arrange for 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. 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. You can reach other recent updates and other informative publications and resources.
A week before the September 23, 2013 deadline for all health care providers, health plans, health care clearinghouses (Covered Entities) and their business associates to have updated their business associate agreements to comply with the Final Omnibus HIPAA Rule, the Department of Health & Human Services Office of the National Coordinator for Health Information Technology (ONC) and the Office for Civil Rights (OCR) today (September 16, 2013) released Model Notices of Privacy Practices (Notices) for health care providers and health plans to use to communicate with their patients and plan members. With penalties and enforcement continuing to rise, Covered Entities and their business associates should take appropriate steps to review and update their privacy and breach notification policies and procedures, privacy officer appointments, notices of privacy practices, business associate agreements and other HIPAA compliance and risk management documentation, practices, procedures and coverage, breach notification and other HIPAA compliance and risk management practice.
Model HIPAA Notices
Developed collaboratively by ONC and OCR the Notices available here designed in the following three different styles are designed for users to customize to fit their specific needs and practices:
A notice in the form of a booklet;
A layered notice with a summary of the information on the first page and full content on the following pages; and
A notice with the design elements of the booklet, but that is formatted for full-page presentation.
Use of these model Notices is optional. While the agencies designed the Notices to let Covered Entities to use these models by entering some of their own information into the model, such as contact information, and then printing for distribution and posting on their websites, Covered Entities should consult with legal counsel to determine the suitability of the Notices generally for their entity’s use and any customization, if any, that may be recommended or required to a Notice if the Covered Entity decides rely upon a model Notice to prepare its Notice of Privacy Practices. To facilitate any tailoring, the agencies provided a text-only version for Covered Entities wishing only wish to use the content with or without tailoring.
September 23 Business Associate Agreement Update Deadline
September 23, 2013 also is the final deadline established in the Final Omnibus HIPAA Rule for Covered Entities and their business associations to update the business associate agreements required by HIPAA to reflect application of the breach notification, business associate, and many of HIPAA’s requirements to directly cover business associates and other aspects of the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted as part of the American Recovery and Reinvestment Act of 2009. While HHS published a Sample Business Associate Agreement last June to aid Covered Entities and their business associates with understanding the business associate agreement requirements as impacted by the Omnibus Final HIPAA Rule, it also made clear that Covered Entities and their business associates should tailor their business associate agreements to fit their specific circumstances and relationships. OCR National Office and regional officials speaking about their findings about past business associate agreement compliance have indicated that their audit and enforcement activities show widespread compliance issues among Covered Entities and business associates with the original business associate agreements. OCR clearly expects Covered Entities and their business associates to address and resolve these compliance issues going forward.
In response to the updated Final Regulations and these expanding HIPAA enforcement and exposures, all Covered Entities should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses; and other developments to decide if additional steps are necessary or advisable. In response to these expanding exposures, all covered entities and their business associates should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses, and other developments to decide if tightening their policies, practices, documentation or training is necessary or advisable.
For Help or More Information
If you need assistance responding to HIPAA or other health industry regulatory, enforcement or other developments, reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement actions; with 2014 health plan decision-making, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer for help.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer is widely recognized for her extensive work, publications, and thought leadership on HIPAA and other privacy and data security issues. Scribe for the ABA JCEB annual Technical Sessions meeting with OCR for the past three years, Ms. Stamer’s experience includes extensive work advising, representing and training health plan, health insurance, health IT, health care and other clients on HIPAA and other privacy, data protection and breach and other related matters and represents and advises these and other clients in responding to OCR Privacy and Civil Rights and other HHS agencies, Labor Department, IRS regulations, investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. She also is recognized for her extensive publications and programs including numerous highly regarding publications and programs on HIPAA and other privacy and data security concerns as well as a wide range of other workshops, programs and publications.
Beyond her HIPAA involvement, Ms. Stamer also continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication see here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Nonexclusive license to republish granted to Solutions Law Press, Inc. All other rights reserved.
[*] On January 24, 2013, the Department of Labor (the Department) issued guidance stating the Department’s conclusion that the notice requirement under FLSA section 18B will not take effect on March 1, 2013 for several reasons until further guidance setting the extended deadline was published.
Starting in 2014, the Individual Shared Responsibility mandate of the Patient Protection & Affordable Care Act (ACA) dictates that each individual American either have minimum essential coverage for each month, qualify for an exemption, or make a payment when filing his or her federal income tax return. In anticipation of the implementation of this Individual Shared Responsibility mandate, the Department of the Treasury and the Internal Revenue Service (IRS) published final regulations implementing the Individual Shared Responsibility mandate in the Internal Revenue Code. The guidance contained in these final regulations provide each American with critical information about their families’ potential exposure to liability for the individual shared responsibility tax in 2014 as well as key insights for employers. Solutions Law Press, Inc. authors are finalizing various articles on certain key aspects of these new regulations for publication over the next few days. Stay tuned for more details!
For each month beginning after December 31, 2013, Internal Revenue Code Section 5000A’s Individual Shared Responsibility mandate requires that individual Americans either qualify as exempt, maintain minimum essential coverage for themselves and any nonexempt family members, or pay an individual shared responsibility payment when paying their Federal income tax return. A taxpayer will be obligated to pay the individual shared responsibility tax under Internal Revenue Code Section 5000A for any non-exempt individual the taxpayer claims on his or her individual tax return as a dependent who is not exempt or enrolled in minimum essential coverage.
Under § 5000A(f)(2), minimum essential coverage includes coverage under an eligible employer-sponsored plan.
The final regulations set the rules that the IRS will use to decide when an individual American will become liable for paying the tax imposed by ACA for failing to maintain the minimum required health insurance coverage mandated by ACA beginning January 1, 2013 and other related rules. While specifically addressing the obligations of individual Americans to pay the Individual Shared Responsibility payment, the final rules coupled with the availability of the new option for individual Americans to buy coverage through an ACA-qualified federal health care exchange and, depending on the adjusted household income of the individual, potentially also to receive tax credits for enrolling in coverage through an exchange is likely to impact the enrollment choices that employed individuals make about enrolling in coverage offered by their employer versus in coverage through a federally qualified health insurance exchange. Accordingly, both individual Americans and the businesses that employ them should act quickly to understand the key aspects of the final regulations and their implications.
When considering the effect of these final regulations, employers and individual Americans should keep in mind that Notice 2013-42, issued on June 26, 2013, provides limited transition relief from the Individual Shared Responsibility mandate for employees and their families who are eligible to enroll in certain employer-sponsored health plans with a plan year other than a calendar year if the plan year begins in 2013 and ends in 2014. For additional information on the Individual Shared Responsibility provision, the final regulations and Notice 2013-42, see the IRS questions and answers.
Coming slightly less than a month before the October 1, 2013 scheduled opening of the first enrollment period for individual Americans to enroll in health care coverage through a federally qualified health insurance exchange created pursuant to ACA and the deadline for employers to deliver the notice of the availability of this option dictated by Fair Labor Standards Act 18B, the final regulations and Obama Administration’s announced plans to enforce its provisions has drawn criticism from a number of groups. While the Obama Administration has indicated that it still plans to enforce the Individual Shared Responsibility mandate against individual Americans, it announced in July, 2013 that it would delay enforcement of the Employer Shared Responsibility Mandate rules of Internal Revenue Code Section 4980H until 2015. Many consumer rights groups and others are arguing that the Administration should also delay its enforcement of the Individual Shared Responsibility Mandate in light of its delay of enforcement of Internal Revenue Code Section 4980H against businesses. Pending a reversal of its position or Congressional relief, the final regulation signal to individual Americans and their employers to prepare to deal with the new Individual Shared Responsibility Mandate beginning in January, 2014.
While the delay in enforcement of the Section 4980H employer shared responsibility payment until 2015 means that employers will not incur liability for failing to provide coverage meeting the minimum essential coverage, minimum value and affordability standards of Internal Revenue Code Section 4980H, the impending implementation of the Individual Shared Responsibility mandate of Internal Revenue Code Section 5000A and the impending availability of tax credits for certain individuals with Household Adjusted Gross Incomes of less than 400 percent of the poverty level almost certainly will influence enrollment decisions that employees make concerning coverage offered by their employer, if any. Employers can expect that employee choices about enrolling in employer-sponsored group health coverage will be influenced by the impending obligation to enroll in coverage or pay the individual shared responsibility tax in 2014 governed by the final regulations. Employers can expect that employee concern about these exposures will prompt many employees to carefully scrutinize and in some cases question the information and implications of information provided by the employer or its plan such as the Section 18B notice that employers must provide by October 1, 2013, the summary of benefits and coverage (SBC) that the Affordable Care Act obligations the employer or plan to provide as the employees work to sort out their choices. As these and other plan communications are likely to face significant scrutiny, employers and their employee benefit plan fiduciaries and administrators should use extra care to ensure that these and other plan documents and communications are carefully and precisely tailored to accurately convey all material plan terms.
For Help or More Information
If you need help understanding or dealing with these impending notification requirements, with other 2014 health plan decision-making or preparation, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication see here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Nonexclusive license to republish granted to Solutions Law Press, Inc. All other rights reserved.
[*] On January 24, 2013, the Department of Labor (the Department) issued guidance stating the Department’s conclusion that the notice requirement under FLSA section 18B will not take effect on March 1, 2013 for several reasons until further guidance setting the extended deadline was published.
Employer and union group health plan sponsors and insurers of group and individual health plans (Health Plans) agonizing over 2014 plan design decisions are running out of time. Impending deadlines to update and deliver the initial Exchange Notice by October 1, 2013, the Summary of Benefits and Communications (SBC) disclosure before their next enrollment period begins, and 60-day prior notice of material reductions in benefits or services under the plan mandated by the Patient Protection and Affordable Care Act (ACA) require employers or other sponsors to finalize design decisions and amendments well in advance of January 1, 2014. These new notification obligations create added urgency and pressure for Health Plans and their employer and other sponsors to finalize and implement their decisions on their Health Plans 2014 plan designs and coverages and make the necessary determinations to prepare and timely deliver the required notifications in accordance with these new notification mandates well before the start of the 2014 plan year or its enrollment period. Employers who in the past have put off these decisions until the last month of the plan year no longer can legally do so.
ACA Exchange Notices Due By October 1
One of the biggest time constraints for finalizing 2014 plan designs, contracts and terms is the impending October 1, 2014 deadline for employers to provide the notice required by Fair Labor Standards Act Section 18B.
Regardless of if the employer sponsors a health plan or when the next plan enrollment period begins, all employers covered by the FLSA generally are required deliver a notice to employees about the new option beginning January 1, 2014 to get health care coverage through a health care exchange (now rebranded by the Obama Administration as a “Marketplace”)(Marketplace) created by ACA that meets the requirements of new FLSA Section 18B enacted Section 1512 of ACA.
Absent a delay or other reprieve from the Obama Administration or Congress, Open enrollment for health insurance coverage through the Marketplace begins October 1, 2013. Individuals and employees of small businesses beginning October 1, 2013 can apply for and, beginning January 1, 2014 to buy health care coverage offered through the Marketplace established under ACA for their state (including the Federal Marketplace for states that did not elect to establish their own Marketplace). Some individuals who earn less than 400% of the federal poverty level and meet certain other conditions also are slated to qualify to receive federal subsidies that will pay all or part of the cost of buying coverage through a Marketplace.
To promote awareness among employees of the Marketplace as an option for getting health coverage, creates a new FLSA Section 18B requiring a notice (Exchange Notice) to employees of coverage options available through the Marketplace. Originally required by March 1, 2013,[*] the Department of Labor (DOL) extended the deadline for providing the Exchange Notice to October 1, 2013. Employers must provide a notice of coverage options to each employee, regardless of plan enrollment status (if applicable) or of part-time or full-time status. Employers are not required to provide a separate notice to dependents or other individuals who are or may become eligible for coverage under the plan but who are not employees.
All FLSA-Covered Employers Must Provide Exchange Notices Beginning October 1, 2013
Under FLSA Section 18B of the FLSA, each applicable employer must provide each employee at the time of hiring (or with respect to current employees, by October 1, 2013), a written notice that fulfills the applicable Exchange Notice requirements as set forth in the DOL Regulations.
The FLSA section 18B requirement to provide a notice to employees of coverage options applies to all employers subject to the FLSA. In general, the FLSA applies to employers that employ one or more employees who are engaged in, or produce goods for, interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies. The FLSA also specifically covers the following entities: hospitals; institutions primarily engaged in the care of the sick, the aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state and local government agencies. Employers questioning whether their business is subject to the FLSA should seek the assistance of legal counsel experienced with the FLSA.
Timing and Delivery of Notice
Employers are required to provide the Exchange Notice to each new employee at the time of hiring beginning October 1, 2013. For 2014, the Department will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee’s start date.
For employees who are current employees before October 1, 2013, employers must provide the Exchange Notice no later than October 1, 2013.
The Exchange Notice must be provided in writing in a manner calculated to be understood by the average employee. Employers may deliver the Exchange Notice by first-class mail or, if the electronic notification requirements of the Department of Labor’s electronic disclosure safe harbor at 29 CFR 2520.104b-1(c) are met, electronically.
Required Content of Exchange Notice
The Exchange Notice content mandated by FLSA Section 18B is fairly limited. Section 18B requires that the Exchange Notice only dictates three required elements:
Inform employees of coverage options, including information about the existence of the new Marketplace as well as contact information and description of the services provided by a Marketplace;
Inform the employee that the employee may be eligible for a premium tax credit under Section 36B of the Code if the employee purchases a qualified health plan through the Marketplace; and
Include a statement informing the employee that if the employee purchases a qualified health plan through the Marketplace, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes. At minimum, this generally requires that the Exchange Notice distributed by an employer must inform the employee.
Interim DOL guidance implementing these requirements construes the content requirements as requiring that the Exchange Notice tell the employee:
Of the existence of the Marketplace (referred to in the statute as the Exchange) including a description of the services provided by the Marketplace, and the way the employee may contact the Marketplace to request assistance;
That the employee may be eligible for a premium tax credit or subsidy under Section 36B of the Internal Revenue Code (the Code) if the employee purchases a qualified health plan through the Marketplace and the employer does not offer coverage to the employee under a group health plan that is considered to provide “Minimum Value” for purposes of ACA; and
That if the employee purchases a qualified health plan through the Marketplace, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes.
Allow Adequate Time To Do Analysis, Complete Other Steps To Prepare Exchange Notices
Employers should resist the urge to allow the shortness of the list of information required that FLSA Section 18B requires in the Exchange Notice lure them into underestimating the time and effort required to prepare the Exchange Notification. For many employers, determining if the Health Plan provides Minimum Value can be time-consuming and complex.
For this, the SBC notice discussed later in this update and other purposes, Code Section 36B(c)(2)(C)(ii) provides that an employer-sponsored Health Plan provides Minimum Value if the ratio of the share of total costs paid by the Health Plan relative to the total costs of covered services is no less than 60% of the anticipated covered medical spending for covered benefits paid by a group health plan for a standard population, computed in accordance with the plan’s cost-sharing, and divided by the total anticipated allowed charges for covered benefits provided to a standard population is no less than 60%. See Patient Protection and ACA: Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation Regulation.
Existing regulations require the employers to get an actuarial certification to determine if its Health Plan provides Minimum Value unless the employer can show that the Health Plan fits the criteria to use and satisfies this test using either the Minimum Value Calculator or an applicable safe harbor design approved by HHS, Treasury and DOL. These determinations often are time consuming and complex requiring careful review and analysis of the group health plan coverage and benefits. Many self-insured or other group health plans have plan designs that prevent the employer from relying on the Minimum Value Calculator or design safe harbors. If the employer cannot rely upon the Minimum Value Calculator or one of the design safe harbors, an actuarial certification will be needed. Employers need to allow sufficient time to make these determinations in time to complete and deliver the Exchange Notices.
Employers should particularly expect to need to obtain an actuarial certification to determine if the Health Plan provides Minimum Value determination if the Health Plan is taking advantage of temporary relief from the cost sharing limitations of ACA for 2014 announced by the Obama Administration in February and reconfirmed in July, that for 2014 allows Health Plans to apply a separate ACA-compliant out-of-pocket maximum to prescription drug benefits from the ACA-compliant out-of-pocket maximum applied to all other benefits subject to ACA’s cost sharing restrictions. Since the Minimum Value Calculator cannot take into account this option, however, employers planning to apply a separate out-of-pocket maximum for prescription drug coverage versus other plan benefits should be prepared to get an actuarial certification of whether the plan provides Minimum Value.
DOL Model Exchange Notices Not Panacea
Employers may want to use some or all of the language that the DOL included in Model Notices that DOL published in conjunction with its publication of interim guidance on FLSA Section 18B in Technical Release No. 2013-02 on May 8, 2013 here. Because employers must tailor the content of the Exchange Notice for their group health plan based on specific information about their group health plan, employers are cautioned not to underestimate the time or effort that will be required to properly prepare the Exchange Notice for their group health plan, whether or not the employer makes use of the Model Notices in whole or part.
DOL published three model exchange notices (Model Notices) to assist employers in preparing the Exchange Notice for their Health Plan for 2014. One Model Notice is intended for employers who do not offer a Health Plan. The second Model Notice is designed for employers who offer a health plan to some or all employees. The third Model Notice is designed for employers to use to notify individuals who are enrolled or eligible to enroll in continuation coverage under the Health Plan under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Technical Release No. 2013-02 says employers may use the applicable of these models or a modified version, provided the Exchange Notice meets the content requirements described above.
Despite the availability of these Model Notices, preparing and providing the required Exchange Notices required by Section 18B typically requires significant evaluation and presents a variety of challenges for most employers. While intended to facilitate the ability of employers to prepare and provide the required Exchange Notices, preparing the Model Notices generally is challenging for many employers.
First, even using the Model Notices, the employer must decide if the Health Plan provides Minimum Value.
Another challenge with wholesale use of the Model Notices involves deciding how much of the optional language contained in the Model Notices to include in the Exchange Notice and what optional information, if any, to provide as part of that Notice.
For one thing, the Model Notices propose that the Exchange Notice include statements that many critics view as inappropriately promoting enrollment in coverage through the Marketplace rather than employer sponsored group health plans. Critics complain, for instance that the Model Notice’s statement that the Marketplaces offer “one-stop shopping” that allows the employee to get coverage that the Model Notice states is more “affordable” are inaccurate or misleading. Many critics view the assertion that coverage obtained through the exchange is more “affordable” to be inaccurate as it does not take into account a comparison of the actual benefits and costs of the respective plan options and whether the employee can afford the typically richer (and therefore often more expensive) benefit packages ACA’s essential health benefits mandates require be included in coverage offered for sale through the Marketplaces and presumes that these higher costs will be defrayed by tax credits or subsidies that are only available if the employee earns less than 400% of the federal poverty level and is not offered the option to enroll in an employer sponsored group health plan coverage that provides “minimum essential coverage” (MEC) and Minimum Value and is “affordable” within the meaning of ACA.
Employers considering using the Model Notices also need to decide if their Exchange Notices will include the optional factual disclosures about their group health plan suggested in the Model Notices, but not required to fulfill the requirements of FLSA Section 18B.
The Model Notices propose that an employer also voluntarily provide a significant amount of other information about its group health plan that FLSA Section permits, but does not require that the Exchange Notice include. The DOL says it designed the Model Notices to help employers to identify and disclose information that the DOL expects employees interested in the tax credit to subsidize the employee’s cost of enrolling in coverage through the Marketplace will need to get from employers to show eligibility. DOL assumes that many employers might want to voluntarily provide this information in the Exchange Notice to avoid receiving a multitude of anticipated inquiries from employees interested seeking tax credits to subsidize their enrollment in coverage through the Marketplace. Since collection the data necessary to make these optional disclosures can add significant complexity and time to the preparation of the Exchange Notice, employers should carefully weigh the pros and cons of making the optional disclosures. The anticipated demand for this information has declined since the Obama Administration announced it plans to use an “honor system” approach to determine if individuals can claim eligibility for tax credit subsidies for buying coverage through the Marketplaces in 2014. Meanwhile, the interim nature of the existing guidance on the Exchange Notice and other key aspects of ACA make it reasonable to expect further changes in the expected content of the Exchange Notice, ACA requirements that it is intended to communicate or both which could impact the need for or accuracy of these disclosures. For this reason, employers should carefully consider whether and what optional disclosures to include in their Exchange Notices.
Don’t Forget To Notify COBRA Qualified Beneficiaries
Technical Release No. 2013-02 indicates that in addition to sending an Exchange Notice to employees, employers or their group health plan administrators also must notify COBRA eligible or enrolled individuals.
In general, under COBRA, an individual who was covered by a group health plan on the day before a qualifying event occurred may be able to elect COBRA continuation coverage upon a qualifying event (such as termination of employment or reduction in hours that causes loss of coverage under the plan). Individuals with such a right are called qualified beneficiaries. A group health plan must provide qualified beneficiaries with an election notice, which describes their rights to continuation coverage and how to make an election. The election notice must be provided to the qualified beneficiaries within 14 days after the plan administrator receives the notice of a qualifying event.
Technical Release No. 2013-02 says that the DOL considers the required disclosures for the Exchange Notice information to be disclosed to qualified beneficiaries and that the DOL is revising previously published model COBRA notices to incorporate this information.
DOL says in Technical Release No. 2013-02 that the group health plans can use the revised model COBRA election notice to satisfy the requirement to provide the election notice under COBRA including the disclosure of information required by FLSA Section 18B. The DOL cautions that as with the earlier model COBRA notices, in order to use this model election notice properly, the plan administrator must complete it by filling in the blanks with the appropriate plan information. Technical Release 2013-02 states that use of the model election notice, appropriately completed, will be considered by the Department of Labor to be good faith compliance with the election notice content requirements of COBRA.
ACA SBC Mandate Overview
In addition to the Exchange Notice requirement, the need to prepare and timely delivery the “Summary of Benefits and Coverage or “SBC”) required by ACA also pressures employers to finalize their health plan terms and contracts for 2014 as soon as possible.
ACA amended the Public Health Services Act (PHS) Section 2715, Employee Retirement Income Security Act (ERISA) Section 715 and the Internal Revenue Code (Code) Section 9815 to require that Health Plans and health insurance issuers provide a SBC and a “Uniform Glossary” that “accurately describes the benefits and coverage under the applicable plan or coverage” in a way that meets the format, content and other detailed SBC standards set for ACA as implemented by the Departments regulatory guidance.Like the Exchange Notice, proper preparation of the SBC requires determination of whether the Health Plan provides Minimum Value, as well as other detailed analysis of the plan terms and coverages to complete the other disclosures required in the SBC.
The Summary of Benefits and Coverage and Uniform Glossary Final Regulation (Final Regulation) implementing this requirement published February 14, 2012 generally requires Health Plans at specified times including before the first offer of coverage under the Plan as well as following certain material changes to the Plan. For Health Plans providing group health plan coverage, FAQs About ACA Implementation (Part VII)[*] set the deadline for Health Plan to deliver a SBC as follows, while at the same time indicating that the Departments would not impose penalties on plans and issuers “working diligently and in good faith” to provide the required SBC content in an appearance consistent with the Final Regulations:
To covered persons enrolling or re-enrolling in an open enrollment period (including late enrollees and re-enrollees) as the first day of the first open enrollment period that begins on or after September 23, 2012; and
For individuals enrolling in coverage other than through an open enrollment period (including individuals who are newly eligible for coverage and special enrollees) as the first day of the first plan year that begins on or after September 23, 2012. See FAQs About ACA Implementation (Part VIII).
While the SBC doesn’t prohibit an employer from amending its Health Plan terms after the enrollment period begins, employers that change Health Plan terms or designs after distributing a SBC must incur the expense and effort to prepare and redistribute an updated SBC. Accordingly, most Health Plans and their sponsors or insurers will want to finalize Health Plan terms before the enrollment period begins to avoid the need to and expense of sending updated SBCs as a result of a later change in Health Plan terms.
The Final Regulation and other existing guidance generally dictates that Health Plans follow a required template for providing the SBC and accompanying glossary. When publishing the Final Regulation, the Departments also published the required SBC template form (2013 SBC Template) and instructions for Health Plans to use to prepare and provide the required SBC for coverage beginning before January 1, 2014 and promised updated guidance and templates for use in providing SBCs for post-2013 coverage. While the Agencies clarified certain other details about the SBC rules, they did not materially change the required content or form of the 2013 SBC Template until their April 23, 2013 release of FAQs About ACA Implementation (Part XIV). See e.g. FAQs About ACA Implementation Part IXand Part X.
FAQ Part XIV Requires MEC and Minimum Value Disclosures In SBC
FAQs About ACA Implementation (Part XIV) published April 23, 2013 announces the updated required 2014 SBC Template that the Agencies are requiring to SBCs for periods of health coverage from January 1, 2014 to December 31, 2014. Along with the 2014 SBC Template, the Agencies also published2014 Sample Completed SBC, which provides an example of a SBC completed for a hypothetical health plan prepared by the Agencies.
The 2014 SBC Template updates the 2013 SBC Template and Sample Completed Template to add information the Agencies believe individuals eligible for Health Plan coverage should know in light of the impending implementation of the individual shared responsibility requirements of Internal Revenue Code (Code) Section 5000A and the employer shared responsibility rules of Code Section 4980H commonly called ACA’s “pay-or-play” rules. These were the “penalty” provisions that the Supreme Court ruled are taxes in 2013.
The April 23, 2013 FAQ expressly requires that SBCs for periods of coverage after December 31, 2013 disclose if the Health Plans provide MEC and Minimum Value to enable participants and beneficiaries to understand if enrollment in the Health Plan will suffice to allow the employee to avoid paying the individual penalty under Code Section 5000(a)’s individual “shared responsibility” rules, to compare the coverage and costs to enroll in the employer’s Health Plan versus to enroll in health care coverage through a Marketplace and to predict how their eligibility for enrollment in the employer’s Health Plan will impact their eligibility to qualify to claim tax credits under Code Section 32G to help subsidize the cost to purchase coverage through a Marketplace.
Code Section 5000A generally imposes a penalty tax on individuals that fail to maintain enrollment in MEC within the meaning of Code Section 5000A(f) and not otherwise exempt under Code Section 5000A(d). As of the publication of this update, the Obama Administration has not announced any delay in the enforcement of this penalty against individuals, but legislation is pending in Congress that would delay its applicability, along with approving the delay of enforcement of the Code Section 4980H penalties previously announced by the Obama Administration.
Although the Obama Administration announced in early July, 2013 that it will not enforce collection of the Code Section 4980H provisions against employers until 2015, Code Section 4980H generally requires employers of 50 or more full-time employees to pay a penalty if the employer fails to offer a group health plan providing MEC and Minimum Value Minimum Value is determined for this purpose in the same manner that it is determined for purposes of making the required disclosure in the Exchange Notice.
60-Day Advance Notice of Material Changes Requirement
In addition to providing the required Exchange Notice and SBCs, employers, group health plans and their plan administrators also must ensure that participants and beneficiaries are given at least 60 days prior notice before the effective date of any “material reduction in covered services or benefits.” See 29
CFR Section 2520.104b-3(d)(3); also see 29 CFR Section 2520.104b-3(d)(2) regarding a 90-day alternative rule.
Section 102 of ERISA has been amended to require 60-day advance notice of material plan changes for plan years beginning on or after September 23, 2012 before the change can be effective. The 60-day advance notification requirement is a modification to the summary plan description/summary of material modification requirements generally applicable to employee benefit plans under ERISA.
The rule’s definition of “material modification” is the same as the definition in the summary of material modifications rule generally applicable to employee benefit plans under ERISA Section 102.
DOL guidance indicates that group health plans can meet the 60-day advance notice requirement by providing an updated Summary of Benefits and Coverage if the change is reflected on the summary or by sending a separate written notice describing the material modification.
Group health plan issuers or sponsors that willfully (intentionally) fail to provide the notice of material modification can face a fine of up to $1,000 for each failure. Each covered individual equates to a separate offense for purposes of these penalties.
Employer and other group health sponsors, issuers, fiduciaries and administrators also should keep in mind that courts historically refuse to enforce reductions in benefits or services provided under the plan until participants and beneficiaries are notified of the change. For purposes of the ERISA notification rules, group health plans, their sponsors, insurers, administrators and fiduciaries are cautioned to take into account whether health care providers or other parties who have assignments of benefits should be provided with notification under these or other ERISA rules in addition to the employees and dependents who are enrolled in coverage under the group health plan.
Notice Deadlines Mean Time Short To Adopt & Communicate 2014 Plan Terms
Employer and other health plan sponsors, insurers, administrators and others involved in 2014 group health plan decisions and preparations must take into account these notification deadlines and allow adequate lead time to properly finalize, adopt and communicate their 2014 health plan terms.
Since group health plan design decisions must be finalized to properly prepare the Minimum Value disclosures required in the Exchange Notice and the SBC and any material reductions required by the 60-day advance notice requirement, time running short to finalize 2014 plan designs.
Employer and other plan sponsors, fiduciaries, administrators, and insurers are cautioned that their preparations should ensure both the necessary disclosures are made and that all disclosures are carefully prepared so that the notifications and the plan terms are consistent.
These preparations should include the critical review and coordination of the language of health plan documents and summary plan descriptions in light of these other notifications to identify and address potential differences between the government-mandated terms and language in the Glossary and SBC, the Exchange Notice and 60-day notice and the plan terms and summary plan description.
Arrangements also must include proper structuring and formatting of all of these documents and timely distribution in accordance with applicable regulations to participants and beneficiaries entitled to receive these documents in a manner that positions the employer, the group health plan and its fiduciaries and insurers to show compliance. In regard to distributions, parties planning to distribute notifications electronically need to ensure that any electronic or other methods of distribution meet applicable requirements and that the Health Plans timely send copies to all entitled parties – employees and dependents – in accordance with the applicable rules.
When planning these activities, group health plans, their sponsors, insurers and administrators also generally will want to minimize distribution costs by coordinating distribution of these ACA mandated notices with other notifications required for group health plans about privacy, coverage for newborns and mothers, mental health coverage, post-mastectomy reconstructive surgery and the like.
For Help or More Information
If you need help understanding or dealing with these impending notification requirements, with other 2014 health plan decision-making or preparation, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication see here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Nonexclusive license to republish granted to Solutions Law Press, Inc. All other rights reserved.
[*] On January 24, 2013, the Department of Labor (the Department) issued guidance stating the Department’s conclusion that the notice requirement under FLSA section 18B will not take effect on March 1, 2013 for several reasons until further guidance setting the extended deadline was published.
Affinity Health Plan, Inc. (Affinity) will pay $1,215,780 and take other corrective actions to settle alleged violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules under the Affinity Resolution Agreement and CAP(Affinity Settlement) with the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR). The settlement comes as the September 24, 2013 deadline for health plans, health care providers, health care clearinghouses (Covered Entities) and their business associates to update the written business associate agreements that HIPAA requires exist before business associates can be allowed to create, use, access or disclose personally identifiable health care information protected by HIPAA (PHI) to carry out HIPAA-covered functions on behalf of a Covered Entity to comply with changes to HIPAA’s implementing regulations adopted by OCR earlier this year. Health plans and other Covered Entities should take timely action to confirm that their existing procedures appropriate safeguards to protect PHI when using or disposing of copiers or other equipment or media as well as to implement business associate or other policy, procedures or training updates required to comply with the updated HIPAA rules.
HIPAA Updates Require Breach Notification, Tightened Other HIPAA Requirements
HIPAA generally requires that Covered Entities (and after September 24, 2013, their business associates) safeguard and restrict the use, access or disclosure of PHI as required by HIPAA. The HITECH Act amended these requirements to tighten certain of these requirements and restrictions, to expand the sanctions for violation of these requirements, to require Covered Entities and their business associates to provide notification of breaches of unsecured PHI to individuals whose information was breached, OCR and in some cases, the media, and made certain other changes to the original requirements of HIPAA. Earlier this year, OCR amended and restated its original Privacy and Security Rules here (2013 Final Rule) to comply with changes in the regulations resulting from these HITECH Act amendments beginning last March, but set the deadline for updating business associate agreements to meet these updated requirements at September 23, 2013.
The 2013 Final Rule and other OCR guidance makes clear that OCR expects Covered Entities and their business associates appropriately to safeguard PHI stored in computers, hard drives, and other digital media until it is properly disposed in accordance with the updated standards required by HIPAA as implemented under the 2013 Final Rule. HITECH Breach Notification Rule requires HIPAA-covered entities to tell HHS of a breach of unsecured protected health information, including breaches resulting from failure to properly secure PHI stored in digital format until it has been destroyed in accordance with the standards established by the 2013 Final Rule. OCR previously has sanctioned other Covered Entities for failed to properly destroy or safeguard PHI stored in digital format on computer or other equipment before abandoning or disposing of that equipment. The Affinity Settlement reaffirms OCR’s concern that Covered Entities meet these disposal requirements when replacing or abandoning equipment containing electronic PHI.
Affinity Settlement Highlights
According to the August 14, 2013 OCR announcement of the settlement, the settlement resulted from an investigation initiated after Affinity filed a breach report with OCR on April 15, 2010, as required by the Health Information Technology for Economic and Clinical Health Act (HITECH Act.)
In its breach report, Affinity indicated that a representative of CBS Evening News told Affinity that, as part of an investigatory report, CBS had purchased a photocopier previously leased by Affinity. CBS informed Affinity that the copier that Affinity had used contained confidential medical information on the hard drive.
Affinity estimated in its breach report that up to 344,579 individuals may have been affected by this breach. OCR’s investigation indicated that Affinity impermissibly disclosed the protected health information of these affected individuals when it returned multiple photocopiers to leasing agents without erasing the data contained on the copier hard drives. In addition, OCR reports its investigation revealed that Affinity failed to incorporate the electronic protected health information (ePHI) stored on photocopier hard drives in its analysis of risks and vulnerabilities as required by the Security Rule, and failed to implement policies and procedures when returning the photocopiers to its leasing agents.
In addition to the $1,215,780 payment, the Affinity Settlement includes a corrective action plan requiring Affinity to use its best efforts to retrieve all hard drives that were contained on photocopiers previously leased by the plan that remain in the possession of the leasing agent, and to take certain measures to safeguard all ePHI.
Learn From Affinity Lesson On Proper Disposal Procedures
Like prior OCR settlements stemming from inadequate security for PHI when transitioning equipment, media or facilities, the Affinity Settlement sends another reminder to Covered Entities and their business associates again of the importance of using appropriate procedures to protect or dispose of PHI when replacing or redeploying equipment or media that may contain PHI.
“This settlement illustrates an important reminder about equipment designed to retain electronic information: Make sure that all personal information is wiped from hardware before it’s recycled, thrown away or sent back to a leasing agent,” said OCR Director Leon Rodriguez. “HIPAA covered entities are required to undertake a careful risk analysis to understand the threats and vulnerabilities to individuals’ data, and have appropriate safeguards in place to protect this information.”
OCR has published guidance concerning HIPAA’s requirements for the proper safeguarding and disposal of media and equipment in the 2013 Final Rule and other guidance. Concerning the proper disposition of copiers that may have PHI stored on their hard drives or in other digital formal, OCR in the Affinity Settlement recommended that Covered Entities and their associates also review the Federal Trade Commission’s Guidance On Safeguarding Sensitive Data Stored In The Hard Drives Of Digital Copiers and the National Institute of Standards and Technology has issued Guidance On Assessing The Security Of Multipurpose Office Machines. Covered Entities and their business associates should use this and other guidance to ensure that they can demonstrate that appropriate practices and procedures have been used to when disposing of or repurposing copies or other equipment that may contain electronic PHI.
HIPAA Regulation Updates Require Other Updates Beyond Disposal Procedures
In addition to addressing the concerns that lead to the Affinity Settlement, Covered Entities and their business associates also should verify that their practices, policies, privacy notices, business associate agreements, and training also are updated to comply with updates to the updated 2013 Final Rule adopted by OCR earlier this year here.
Since passage of the HITECH Act, OCR officials have warned Covered Entities to expect an omnibus restatement of its original regulations. While OCR had issued certain regulations implementing some of the HITECH Act changes, it waited to publish certain regulations necessary to implement other HITECH Act changes until it could complete a more comprehensive restatement of its previously published HIPAA regulations to reflect both the HITECH Act amendments and other refinements to its HIPAA Rules. The 2013 Regulations published today fulfill that promise by restating OCR’s HIPAA Regulations to reflect the HITECH Act Amendments and other changes and clarifications to OCR’s interpretation and enforcement of HIPAA.
In response to the updated Final Regulations and these expanding HIPAA enforcement and exposures, all Covered Entities should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses; and other developments to decide if additional steps are necessary or advisable. In response to these expanding exposures, all covered entities and their business associates should review critically and carefully the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration OCR’s investigation and enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses, and other developments to decide if tightening their policies, practices, documentation or training is necessary or advisable.
For Help or More Information
If you need help monitoring or providing input on this legislation or to understand and respond to these or other legislation, laws and regulations, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues. Author of numerous prominent publications on HIPAA and other data security and privacy concerns impacting health plans, health care providers, employers, financial services providers and others, Ms. Stamer also serves as the scribe for the ABA JCEB annual Technical Sessions meeting with OCR and has represented numerous health plans, employers, health care providers and others in investigating, redressing, reporting data breach, identity theft and other compliance concerns.
She advises clients on, publishes, and speaks on HIPAA and other health plan, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Businesses and workers concerned that the definition of “full-time” employment as 30 hours per week in the “pay-or-play” penalties of the Patient Protection and Affordable Care Act (commonly referred to by the public as “Obamacare”) is hurting American workers may want to share their input on recently introduced legislation that would raise the number of hours an employee must work to qualify as “full-time” for purposes of the pay-or-pay penalty from 30 to 40 hours per week with members of the key Congressional Committees that will decide whether this legislation advances when Congress returns from its Summer vacation.
Growing concern about the costs and other implications of Obamacare are fueling renewed debate in Congress about the pay-or-play and other provisions of Obamacare. Only 57 days before enrollment in coverage slated to be available as an alternative to employer coverage beginning January 1, 2014 through new federally mandated health insurance exchanges is prompting renewed debate in Congress about the full-time employee, pay-or play and other provisions of Obamacare. As Congress takes its summer break, both sides are talking and listening to voters about health care reform. Concerned parties should share their input on Congress during this break to help shape the decisions Congress makes when it returns to work in September.
“Full-Time Employee” Definition Key Element Of Employer’s “Pay-Or Play” Liability
Originally scheduled to take effect on January 1, 2014 until the Administration on July 2, 2013 announced it would not enforce its provisions until 2015, the employer “shared responsibility” or “pay-or-play” rules of Internal Revenue Code (Code) Section 4980H enacted as part of Obamacare have been widely criticized as killing jobs and reducing employment.
When effective, Code Section 4980H will require that businesses employing 50 or more “full-time” employees (Large Employers”) pay a tax penalty calculated in accordance with Code Section 4980H unless the Large Employer offers each “full-time employee” the opportunity to enroll himself and each of his dependent children in coverage under a qualifying health plan that meets the minimum essential coverage, minimum value and affordability standards of Obamacare.
Under the current provisions of Code Section 4980H, the amount of the penalty that a Large Employer must pay is:
$168 per employee per month for any month that the employer doesn’t offer minimum essential coverage to each full-time employee and has at least one full-time employee who receives a subsidy or tax credit for enrolling in coverage under one of the health insurance exchanges created by Obamacare (Subsidized Employee);
$250 per employee month multiplied by the number of full-time employees of the business that are Subsidized Employees if the employer offers coverage under the health plan that provides minimum essential coverage but the health plan fails to meet the minimum value or affordability standards of Code Section 4980H; or
$0 if the employer either offers health plan coverage that meets the minimum essential coverage, minimum value and affordability requirements of Code Section 4980H or doesn’t have any full-time employees who are Subsidized Employees.
As businesses already struggling to deal with a tough economy moved to minimize the number of their full-time employees, even labor unions that originally supported Obamacare joined the cry for reform of its provisions to mitigate employment losses resulting from employer efforts to minimize Code Section 4980H exposures. See Companies Cut Hours Of Full-Time Employees To Avoid Providing Health Care Under New Rules.
S. 1188/H.R. 2575 Would Make Full-Time Mean 40 Hours Per Week
Prompted by growing concern about the apparent adverse impact of Obamacare on job opportunities for hourly workers, legislation now is pending in both the House and Senate to amend the Obamacare’s definition of “full-time.” In June, Senators Susan Collins (R-ME) and Joe Donnelly (D-IN) Collins introduced a bill to amend Code Section 4980H to change the definition of full-time employee for purpose of the shared responsibility provisions of Obamacare, S. 1188: Forty Hours Is Full Time Actto change the definition of “full-time” from 30 to 40 hours per week and the number of hours counted toward a “full-time equivalent” employee to 174 hours per month. Representative Todd Young (R-IN) then introduced a similar provision in the House on June 28, 2013, H.R. 2575, Save American Workers Act of 2013.
This past weekend, S. 1188’s sponsor, Maine Senator Susan Collins sought to beef up support for the bill. In urging support for her bill, Senator Collins said the health care law’s 30-hour per week definition kills jobs. “Obamacare is actually discouraging small businesses from creating jobs and hiring new employees,” she said. “The law also has perverse incentives for employers to reduce the number of hours that their employees can work.”
How To Contact Key Committees To Show Support or Share Other Feedback
Individuals wishing to share their support or other input about S. 1181 with the Senate Finance Committee can call (202) 224-4515 or send their written input to the Senate Committee on Finance members via fax to (202) 228-0554.
Support or other input on H.R. 2575 should be sent via fax to House Ways & Means Committee members via fax to (202) 225-2610 or by calling the Committee office at (202) 225-3625.
Committee members and other members of Congress also generally can be contacted via e-mail through the link provided on each member’s webpage. Because security precautions generally delay delivery of mail to members of Congress for 7-10 days, concerned individuals generally are encouraged to contact the Committee or other members of Congress via fax or e-mail.
Stay In Touch & Join The Discussion On Health Care Reform
Want to stay in touch with the latest developments on health care reform and get involved with helping to share meaningful improvements in U.S. health care and workforce policy and our health care and health care insurance system? The Coalition For Responsible Health Care Policyprovides 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. We also encourage you to participate in our Project COPE: Coalition for Patient Empowerment initiative here to share ideas, discuss issues, and access and share tools and other resources.
For Help or More Information
If you need help monitoring or providing input on this legislation or to understand and respond to these or other legislation, laws and regulations, or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Employers sponsoring self-insured group health plans and insurers are reminded that the deadline to report and pay the fee new fees required by the Patient Protection and Affordable Care Act (ACA) to help fund the Patient-Centered Outcomes Research Institute (PCORI) is July 31, 2013.
The PCORI fee, required to be reported annually on the second quarter Form 720 and paid by its due date, July 31, is based on the average number of lives covered under the policy or plan. The annually required PCORI fee applies to policy or plan years ending on or after October 1, 2012, and before October. 1, 2019.
The PCORI fee is just one of a number of new fees and costs that ACA imposes upon employers and individuals as part of the health care reforms enacted under ACA.
Employers of more than 50 full-time employees recently received a temporary retrieve from another of these looming potential fees, the employer “shared responsibility” payment that ACA added to the Internal Revenue Code (Code) under new Code Section 4980H.
Earlier this month, the Internal Revenue Service (IRS) announced that it will delay until 2015 enforcement of the employer shared responsibility or “pay-or-play” rules of Code Section 4980H. See July 2 Blog and Notice 2013-45. Slated prior to the delayed enforcement announcement to take effect January 1, 2014, the employer shared responsibility rules generally will require employers which individually or collectively with other commonly controlled or affiliated employers employee 50 or more full-time employees that do not offer group health coverage that meets the minimum essential coverage, minimum value and affordability standards of the Affordable Care Act to pay an “assessment” that the Supreme Court ruled last year to be a tax, as well as to comply with certain reporting requirements.
While Notice 2013-45 gives large more time to prepare to comply with Code Section 4980H, it provides no relief from the obligation to pay the PCORI fee or from other group health plan mandates imposed by ACA or other applicable federal laws. Consequently, as businesses continue to prepare for the delayed implementation of Code Section 4980H in 2015, they also need to ensure that they timely pay any required PCORI fees and meet other applicable federal group health plan mandates as they continue to diligently prepare to deal with Code Section 4980H.
While businesses work to meet current and impending federal health plan responsibilities, most business leaders also will want to continue to closely monitor and provide regular input to members of Congress and regulators on proposed regulatory and enforcement guidance and potential Congressional amendments to the Affordable Care Act or other health care or tax policy reforms.
For Help or More Information
If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
The Internal Revenue Service (IRS) yesterday (July 10, 2013) shared its first “formal” guidance officially implementing the Obama Administration’s decision to delay until 2015 enforcement of certain of the employer shared responsibility or “pay-or-play” rules of new Internal Revenue Code (Code) Section 4980H first informally announced by Department of Treasury Assistant Secretary for Tax Policy Mark Mazar in this July 2 Blog.
Notice 2013-45outlines the specific “transition relief” rules under which the IRS says it will forego during 2014 enforcement of the employer shared responsibility penalty tax rules and associated and information reporting requirements that are slated to take effect for single employers or groups of commonly controlled or affiliated employers that employ 50 or more full-time employees (Large Employers) beginning January 1, 2014 as part of the sweeping health care reforms enacted under the Patient Protection and Affordable Care Act (Affordable Care Act). Even with the extension of time allowed by Notice 2013-45 to prepare to comply with Code Section 4980H, however, employers and insurers have much to do to prepare.
The first priority for employers wishing to take advantage of added time to comply with Affordable Care Act’s pay or play penalty to maximize their planning opportunities and to minimize their potential Code Section 4980H consequences should be to clean up worker classifications, to track all hours worked for all employees and collect all other relevant employee data.
The transitional relief in Notice 2013-45 comes as businesses have struggled to understand and come to grips with the requirements of new Internal Revenue Code Section 4980H that beginning January 1, 2014, a Large Employer calculate and pay the applicable “assessable payment” tax under Section 4980H for each month that it fails to offer each full-time employee group health plan coverage meeting Code Section 4980H’s “minimum essential coverage,” “minimum value” and “affordability standards” if any full-time employee receives a subsidy for enrolling in coverage through a health insurance exchange.
Specifically, Notice 2013-45 waives IRS enforcement only for 2014 and only of:
The information reporting requirements applicable to insurers, self-insuring employers, and certain other providers of minimum essential coverage (MEC) under Code Section 6055 (6055 Reporting);
The information reporting requirements applicable to applicable large employers under Code Section 6056 (6056 Reporting); and
The obligation to pay tax penalties under the employer shared responsibility provisions under Code Section 4980H (4980H Tax).
This relief is limited in both scope and duration. Notably, Notice 2013-58 states:
Its provisions have no effect on the effective date or application of the multitude of other new mandates that have or will kick in coming months in connection with the impending 2014 Affordable Care Act reforms; and
The IRS plans that the tax penalty provisions of Code Section 4980H and the information reporting requirements of Code Sections 6055 and 6056 “will be fully effective for 2015.”
While the IRS is promising in Notice 2013-45 that the IRS will not require any payments by any employer under Code Section 4980H for 2014, it also urges Large Employers other affected entities to prepare for 2015 by voluntarily complying with the information reporting provisions (once the information reporting rules have been issued) in 2014 including conducting “real-world testing of reporting systems and plan designs” and continuing employer-provided coverage.
Relief Leaves Large Employers & Other Employers With Much Work To Do
While Notice 2013-45 gives Large Employers more time to prepare to comply as well as to communicate with the IRS about the need and options for simplification, employers should continue to aggressively prepare for compliance. The IRS says it intends to fully enforce the rules against Large Employers beginning in 2015 and to implement other Affordable Care Act provisions. Consequently, employers that know or question if they may be Large Employers, their insurers, service providers and advisors should continue to diligently prepare to deal with Code Section 4980H, as well as other federal health plan rules. Accordingly, Large Employers, their insurers and advisors could continue to diligently prepare to prepare to manage their impending Code Section 4980H responsibilities and liabilities.
1. Start With Worker Classification, Time & Income Data Collection & Recordkeeping
Employers wishing to use this reprieve to their best advantage should start by ensuring that they clean up and tighten their worker classification and time tracking practices. This should start with auditing the classification of all workers providing services as employees, contractors or otherwise to be sure that they are properly classified. Code Section 4980H takes into account all workers who are under they facts and circumstances test applied by the Code “common law employees” for purposes of deciding what employers are covered by Code Section 4980H and calculating the penalties, if any owning. Many businesses mistakenly fail to recognize a wide range of workers considered by the business to work as contractors, leased employees or in other capacities are likely to be considered by the IRS to be common law employees for purposes of these rules. Ensuring that the business has properly accounted for all workers that the IRS is likely to view as common law employees is essential to any reliable planning or cost projection.
Beyond having an appropriate understanding of what individuals are considered common law employees, businesses also should seek to track accurately all hours worked, regardless of whether the employees are non-exempt workers that the Fair Labor Standards Act (FLSA) requires the employer pay hourly, or exempt employees under the FLSA that the employer pays on a salaried, commission or other non-hourly basis. Under existing Code Section 4980H rules, employers that don’t have accurate time records for employees must rely upon safe-harbor rules for identifying workers that are considered full-time. These safe harbor rules credit hours in such a way that tends to overstate the number of full-time employees and full-time equivalent employees.
In workforces where many employees many receive significant additional family income from the earnings of a spouse, another job or other sources, employers also may want to add processes to verify actual household adjusted gross income (HAGI) for purposes of identifying which of its full-time employees, whose HAGI actually is below the 400 percent of the poverty level required to qualify to receive subsidies when enrolling in coverage through a Health Insurance Exchange.
2. Other To Dos
Other helpful preparations also generally will include:
Seeking and monitoring developing guidance about the meaning of minimum essential coverage and other associated rules;
Providing meaningful input to the IRS, the Department of Health & Human Services, Congress and others on the need for and options to simplify time and other data and reporting requirements, employer interactions and data requests for verification of exchange subsidy eligibility and other purposes;
Evaluating and adjusting workforce and benefit practices, time and other record keeping systems, and plan designs;
Evaluating workflow and staffing practices to determine the potential advantages of using certain measurement, stability or administrative periods, safe harbors and other options for purposes of applying Code Section 4980H, making changes in workforce or staffing practices, redesigning benefits or other adjustments; and
Working with management, vendors and others to identify and change plan designs; and
Completing other preparations to cope with the rules.
While continuing these preparations to comply with Code Section 4980H in 2015, Large Employers as well as other businesses also need to get busy finalizing preparations for the upcoming 2014 plan year, particularly in the face of fast approaching notice deadlines. Employers are under the gun to finalize and implement plan design, vendor and other decisions and complete other preparations to prepare and deliver these and other materials on time, updated in time to meet new or revised federal health plan requirements under the Affordable Care Act and other laws. The impending Affordable Care Act-imposed deadlines to deliver newly mandated exchange notices by October 1 and updated “Summaries of Benefits and Coverage” or “SBCs” by the beginning of their next enrollment period significantly shortens the time for employers to finalize their plan designs. Under existing SBC rules, employers that amend their plans after the beginning of an annual enrollment period must update and resend SBCs to plan members. Furthermore, Federal rules also now generally require health plan administrators provide 60 days advance notice to plan members of plan amendments that materially reduce coverage or benefits. Therefore all employers regardless of size will want to ensure that their plans and associated contracts are finalized quickly to adequately meet these requirements without incurring the added expense of updating and redistributing their SBCs.
As part of these efforts, all businesses generally should act quickly and diligently to:
Carefully credential and contract with insurers, administrators, consultants and other plan service providers and advisors to document expectations and commitments about compliance, quality assurance, fiduciary and other responsibility and status, indemnification and other accountability and other matters including updated business associate commitments where required to comply with recently changes in the privacy rules of the Health Insurance Portability & Accountability Act generally required no later than September 24, 2013 for all existing plan business associates);
Audit within the scope of attorney-client privilege all existing employee and alternative workforce arrangements and patterns to confirm that all common law employees properly are identified and classified and that appropriate arrangements are in place to track and document time and other relevant information to position the business reliably its responsibilities and defend its action for Code Section 4980H and other federal health plan, Fair Labor Standards Act and other compliance purposes;
Consult with legal counsel within the scope of attorney-client privilege about any legally required or otherwise desired adjustments to worker classification or other workforce practices to minimize Affordable Care Act or other liabilities;
Finalize decisions about what health benefits, if any that their business will offer to what employees in the upcoming plan years and carefully contract with vendors, update plan documents, the SBCs, summary plan descriptions and other materials for the upcoming plan year before the first day of the next enrollment period;
Carefully amend and update plan documents, summary plan descriptions, SBCs, privacy practices notices and other required notices, communications and forms to the extent possible, before the upcoming enrollment period to minimize inconsistencies, and to be able to package required notices, summary plan descriptions and other communication and enrollment materials to take advantage of the opportunity to minimize distribution expenses;
Complete the necessary decisions and arrangements to prepare and send the exchange notice that the Affordable Care Act requires be delivered for the first time by October 1, 2013; and
Finalize other preparations for the upcoming plan year.
Monitor & Provide Input On Proposed Tax & Health Care Reform
While businesses work to meet current and impending federal health plan responsibilities, most business leaders also will want to continue to closely monitor and provide regular input to members of Congress and regulators on proposed amendments to the Affordable Care Act or other health care or tax policy reforms.
Despite a projected $ 5 billion reduction in federal budget revenue from non-enforcement of Code Section 4980H in 2014, the Administration is moving ahead aggressively to implement other Affordable Care Act reforms as scheduled. Notice 2013-45 states that the Administration plans to continue to provide subsidies pursuant to the Affordable Care Act for individuals earning less than 400% of the Federal poverty level who enroll in health coverage through a Health Insurance Exchange, which the Administration has rebranded and now refers to as “Marketplaces.” Furthermore, the Administration separately announced on July 5, 2013 that individuals will be allowed to apply for and claim these subsidies based on an “honor system” in 2014; the Administration will not require verification of eligibility.
Even before the IRS announced the relief now formalized by Notice 2013-45, the rising federal budget costs of the Affordable Care Act was fueling concern. In March, the General Accounting Office (GAO) reported that after having already spent more than $394 million on exchange efforts, the Obama administration needs Congress to approve an extra $1.5 billion added to the budget to cover the additional $2 billion that the GAO projects the Administration will need over the next fiscal year to create and run the federal exchanges. See GAO Report and GAO Report. Foregoing enforcement of Code Section 4980H, verification of subsidy eligibility and other unexpected costs resulting from glitches in the preparation and rollout of the Affordable Care Act reforms for 2014 are adding to the growing costs and projected budgetary impact of the Affordable Care Acts on the federal budget. With existing budget shortfalls already fueling pressure for increased tax revenues, businesses and individuals concerned about tax liability will want to carefully monitor and provide input to Congressional leaders on health care and tax reform.
For Help or More Information
If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
As part of its continuing efforts to promote enrollment in the Health Insurance Marketplace slated to take effect January 1, 2014, the Department of Health and Human Services (HHS) today (July 2, 2013) announced the award of nearly $32 million in grants for efforts to identify and enroll children eligible for Medicaid and the Children’s Health Insurance Program (CHIP). The Connecting Kids to Coverage Outreach and Enrollment Grants were awarded to 41 state agencies, community health centers, school-based organizations and non-profit groups in 22 states; two grantees are multistate organizations. The announcement comes as employers and others continue to express concern about the sufficiency of preparations and HHS’ recent rollout of online tools to aid consumers enroll in the new Health Care Marketplace scheduled to launch January 1, 2014 as part of the continuing implementation of reforms enacted as part of the Patient Protection & Affordable Care Act (Affordable Care Act).
Announced Grants Target Increased CHIP & Medicaid Enrollment In Preparation For Health Care Marketplace
In amounts ranging from $190,000 to $1 million out of the $140 million included in the Affordable Care Act and the Children’s Health Insurance Program Reauthorization Act (CHIPRA) of 2009 for enrollment and renewal outreach, HHS Reports the grants awarded to the grantees listed here focus on 5 areas:
Engaging schools in outreach, enrollment and retention activities (9 awards);
Reducing health coverage disparities by reaching out to subgroups of children that are less likely to have health coverage (8 awards);
Streamlining enrollment for individuals participating in other public benefit programs such as nutritional or other assistance programs (3 awards);
Improving application assistance resources to provide high quality, reliable Medicaid and CHIP enrollment and renewal services in local communities (13 awards); and
Training communities to help families understand the new application and enrollment system and to deliver effective assistance to families with children eligible for Medicaid or CHIP (8 awards).
According to HHS, the grants will build on the Secretary’s Connecting Kids to Coverage Challenge to find and enroll all eligible children and support outreach strategies that have been shown to be successful.
According to HHS, Connecting Kids to Coverage Outreach and Enrollment Grant Awards (Cycle III) Efforts to streamline Medicaid and CHIP enrollment and renewal practices, combined with robust outreach activities, have helped reduce the number of uninsured children. Since 2008, HHS claims 1.7 million children have gained coverage and the rate of uninsured children has dropped to 6.6 percent in 2012
“Today’s grants will ensure that more children across the nation have access to the quality health care they need,” said Secretary Sebelius. “We are drawing from successful children’s health coverage outreach and enrollment efforts to help promote enrollment this fall in Medicaid and the new Health Insurance Marketplace.”
Continuing Preparations For New Health Care Marketplace
The grant awards are part of a much broader effort by HHS to prepare Americans to enroll in the newly reformed Health Insurance Marketplace that the Obama Administration is working to implement as part of the sweeping reforms enacted by the Affordable Care Act.
Enrollment is the Health Insurance Exchanges also to be included in the new federal health care marketplace is scheduled to begin October 1, 2013. In anticipation of this deadline, HHS recently also announced its rollout of new consumer health care education and decision-making tools on its newly designed www.healthcare.gov website.
In announcing its launch of its Health Insurance Marketplace educational tools hereon June 24, 2013, the Department of Health & Human Services (HHS) repeated recent claims that HHS and the states are on target to begin enrollment on October 1, 2013 in the federal and state health care exchanges now retitled “Health Insurance Marketplace” by the Administration, to meet other key milestones and to the beginning coverage under the newly created Health Insurance Marketplaces beginning January 1, 2014.
As part of these preparations, HHS kicked off an aggressive Health Insurance Marketplace education effort by announcing the deploying of with newly designed “consumer-focused” HealthCare.gov website and the 24-hours-a-day consumer call center that HHS claims provide all the necessary tools to prepare Americans for open enrollment and ultimately sign up for private health insurance.
While HHS says its tools and other preparations will get the Health Care Marketplaces and Americans ready for the conversion of the U.S. health care system slated to begin January 1, 2014, others are less confident. For instance, GAO officials recently found that major work that federal and state officials must complete to timely begin enrollment by October 1 remains unfinished, making it unclear if they will meet the impending October 1, 2013 enrollment kickoff deadline. See GAO Report and GAO Report.
Meanwhile, employers of 50 or more full-time employees and others also have complained that delayed and incomplete guidance has prevented them from understanding their obligations and moving to complete preparations to comply with the new employer mandates by delaying private market reforms and employer preparations. These problems have been further complicated by recent media coverage and public debate about the access to sensitive personal health care, financial information and the role of the Internal Revenue Service and other government agencies under the Affordable Care Act following recent charges that certain Internal Revenue Service officials improperly targeted certain charitable organization and their organizers as part of application approval and audits.
Despite these concerns, HHS is marching ahead on its efforts to implement the law by launching these and other enrollment and educational outreach.
For Help or More Information
If you need help with preparing these or other Affordable Care Act compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Despite growing concerns expressed by the General Accounting Office (GAO) and others about arrangements and the need for added funding to prepare for the massive conversion in the U.S. health care system slated to take effect January 1, 2014 under the Patient Protection & Affordable Care Act (“ACA), Obama Administration officials are continuing to claim readiness to begin enrollment of Americans In federal health care marketplace on schedule on October 1, 2013 and to meet other crucial deadlines necessary to effectively implement the next wave of ACA’s health care reforms in the Department of Health & Human Service’s rollout of new consumer health care education and decision-making tools on its newly designed healthcare.gov website.
In announcing its launch of its Health Insurance Marketplace educational tools hereon June 24, 2013, the Department of Health & Human Services (HHS) repeated recent claims that HHS and the states are on target to begin enrollment on October 1, 2013 in the federal and state health care exchanges now retitled “Health Insurance Marketplace” by the Administration, to meet other key milestones and to the beginning coverage under the newly created Health Insurance Marketplaces beginning January 1, 2014.
As part of these preparations, HHS kicked off an aggressive Health Insurance Marketplace education effort by announcing the deploying of with newly designed “consumer-focused” HealthCare.gov website and the 24-hours-a-day consumer call center that HHS claims provide all the necessary tools to prepare Americans for open enrollment and ultimately sign up for private health insurance.
According to HHS, “The new tools will help Americans understand their choices and select the coverage that best suits their needs when open enrollment in the new Health Insurance Marketplace begins October 1.”
According to Centers for Medicare & Medicaid Services Administrator Marilyn Tavenner, “In October, HealthCare.gov will be the online destination for consumers to compare and enroll in affordable, qualified health plans.”
Between now and the start of open enrollment, HHS says the Marketplace call center will provide educational information and, beginning Oct. 1, 2013, will help consumers with application completion and plan choice. In addition to English and Spanish, the call center provides assistance in more than 150 languages through an interpretation and translation service. Customer service representatives are available for assistance via a toll-free number at 1-800-318-2596 and hearing impaired callers using TTY/TDD technology can dial 1-855-889-4325 for assistance.
While HHS says its tools and other preparations will get the Health Care Marketplaces and Americans ready for the conversion of the U.S. health care system slated to begin January 1, 2014, others are less confident. For instance, GAO officials recently found that major work that federal and state officials must complete to timely begin enrollment by October 1 remains unfinished, making it unclear if they will meet the impending October 1, 2013 enrollment kickoff deadline. See GAO Report and GAO Report such as::
17 states committed to run their own exchanges have missed March 2013 deadlines on 44% of key activities;
Officials creating the small business exchanges still must review plans and train and certify the “navigators” that are supposed to help companies and individuals enroll in plans and complete other key arrangements;
A federal the “data hub” designed to help individuals determine their eligibility and enroll in plans offered through the exchanges has only undergone initial testing; and
The current planned process for coordination of data between employer and insurer plans and the health care exchanges to evaluate eligibility of the millions of Americans expected to apply for subsidies for enrolling in coverage through the exchange presently is for HHS to contact employers by telephone employers to ask if that employer asked that employee enrollee minimum essential coverage providing minimum essential value at an affordable cost that would disqualify the applicant for the subsidy.
Meanwhile, the GAO Reports also provide a glimpse at what the federal government has spent so far on preparing the federal exchanges and the data hub. They indicate that hat the Obama Administration had approximately $394 million on exchange efforts as of March 2013 including:
$84 million to CGI Federal, which is building the federal exchange computer infrastructure;
$55 million to Quality Software Services, which is building the data hub; and
$38 million to Booz Allen Hamilton to provide technical assistance for enrollment and eligibility.
Contractor Booz Allen Hamilton recently has drawn attention as the National Security Association contractor through which the notorious fugitive Edward Snowden allegedly accessed information he disclosed to the public about NSA surveillance of “big data” on Americans and others through the internet.
The GAO also estimated the Obama administration needs Congress to approve an extra $1.5 billion from the budget to provide the Administration with the additional $2 billion that the GAO projects the Administration will need over the next fiscal year to create and operate the federal exchanges. Existing budget concerns make it unlikely that Congress will approve these extra funds.
For Help or More Information
If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Register Now For 6/4 Solutions Law Press, Inc. Virtual Briefing
Employer, union and sponsors of employment-based group health plans that include health risk assessment (HRA) or other wellness plan features that reward participants for engaging in certain assessments or other activities designed to promote wellness or disease management, and fiduciaries insurers, and administrators of these health plans should review and update their programs in light of final wellness program rules jointly published by the Department of Health and Human Services (HHS), Department of Labor Employee Benefit Security Administration (EBSA) and the Department of Treasury (collectively the “Agencies”) today (May 29, 2013) here (Wellness Regulations).
While these final Wellness Regulations implementation of changes to the “bona fide wellness program exception” to nondiscrimination rules contained in the Portability Rules of the Health Insurance Portability & Accountability Act (HIPAA) as amended by the Patient Protection and Affordable Care Act (ACA) allow group health plans to provide bigger rewards to members for cooperating in wellness activities required under a “bona wellness program” within the meaning of the Wellness Regulations, the Wellness Regulations and other federal rules still need care to design and administer these health plan features meet all applicable Wellness Regulations for qualification as a “bona fide wellness program while also safeguarding the use of “personal health information” and “genetic health information in accordance with the privacy rules of HIPAA as amended by the Genetic Information Nondiscrimination Act (GINA) managing potential employment disability discrimination exposures under the Equal Employment Opportunity Commission’s (EEOC’s) current interpretation of the employment discrimination rules of Americans With Disabilities Act (ADA) and GINA.
Wellness Rules Implement ACA Changes To HIPAA “Bona Fide Wellness Program Rules
The nondiscrimination prohibitions of the Health Insurance Portability & Accountability Act (HIPAA), as amended by the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA) generally prohibit health plans from discriminating against an individual based on eligibility or premium based on a health factor. Wellness or disease management programs that vary premiums or contributions, cost-sharing or other benefit mechanisms, or provide other rewards or inducements can run afoul of this HIPAA nondiscrimination prohibition if not properly designed and administered to fall within the “bona fide wellness program” exception.
The Wellness Regulations as finalized continue to interpret HIPAA’s general prohibition against group health plan provisions that discriminate based on a health factor to prohibit group health plans to vary benefits (including cost-sharing mechanisms) or the premium or contribution for similarly situated individuals when wellness program that satisfies the requirements of the Wellness Regulations for a “bona fide wellness program
The Affordable Care Act generally increased the maximum permissible reward under a health-contingent wellness program from 20 percent to 30 percent of the cost of health coverage for qualifying bona fide wellness programs and to as much as 50 percent of the cost of health coverage for bona fide wellness programs designed to prevent or reduce tobacco use. In keeping with these ACA amendments to HIPAA, the Wellness Regulations allow group health plans and insurers to offer these greater rewards as long as the wellness program otherwise meets the conditions that the Wellness Regulations set for qualification as a bona fide wellness program.
In order to offer these incentives, however, the Wellness Regulations make clear that group health plans, their insurers and fiduciaries still need to tread carefully to properly design and administer these arrangements to ensure that their wellness program meet the applicable conditions of the Wellness Regulations for qualification as a bona fide wellness program.
In keeping with the approach announced in proposed regulations the Agencies previously published herelast Fall, the Wellness Regulations have different requirements for “participatory wellness programs” versus “health contingent wellness programs.”
“Participatory wellness programs” generally are programs that reward plan members for participating in wellness activities based on participation in specified activities without regard to an individual’s health status. These include programs that reimburse for the cost of membership in a fitness center; that provide a reward to employees for attending a monthly, no-cost health education seminar; or that reward employees who complete a health risk assessment, without requiring them to take further action
“Health-contingent wellness programs” generally are programs where individuals must meet a specific standard related to their health to qualify for the specified reward or avoid a specified penalty. Examples of health-contingent wellness programs include programs that provide a reward to those who do not use, or decrease their use of, tobacco, or programs that reward those who achieve a specified health-related goal, such as a specified cholesterol level, weight, or body mass index, as well as those who fail to meet such goals but take certain other healthy actions.
Group health plan sponsors, fiduciaries, insurers and administrators should use care to properly understand which type of program or programs their group health plans contain and ensure that their programs are properly designed and administered to meet these conditions. While fulfillment of these requirements can allow the arrangement to avoid violation of HIPAA’s nondiscrimination rules, however, it is important also to ensure that other applicable federal requirements for the use of these arrangements also are fulfilled along with these HIPAA nondiscrimination requirements.
Meeting Other Federal Rules For Wellness Programs Also Important
In addition to fulfilling the Wellness Regulations, health plans, their sponsors, fiduciaries, insurers and administrators also need to ensure that any wellness program included in a group health plan also meets other federal rules about the protection of sensitive personal health information and genetic health information and do not violate the employment discrimination rules of the ADA and GINA
Update Privacy Compliance
.Since wellness programs generally inherently involve some collection, use, access or disclosure of “protected health information” within the meaning of the Privacy Rules of HIPAA, it is particularly important to review and tighten plan provisions and other documentation, processes, procedures, and training to reduce the risk of violating HIPAA. A review of the adequacy of these arrangements is made particularly important in light of recent changes to in the implementing regulations of these HIPAA Privacy Rules adopted earlier this year to implement changes enacted by the HITECH Act. Among other things, these changes may require updates to the health plan’s definition of personal health care information to clarify that it includes family health information and other “genetic information” that wellness programs often collect. Other updates to plan provisions, privacy policies, vendor agreements or other practices also may be needed to comply with modifications to the HIPAA Privacy Rules on business associates, marketing, breach notification, training or other rules.
Manage Disability Discrimination Risks
In addition to ensuring compliance with current requirements about privacy, group health plans, their sponsors, fiduciaries, insurers and vendors also should take steps to minimize potential employment discrimination challenges under the ADA and GINA.
The ADA is not the only employment discrimination risk to manage, however. In addition to the amendments to the group health plan nondiscrimination and Privacy Rules of HIPAA, GINA’s employment discrimination rules generally prohibit employment discrimination based on “genetic health information.” For instance, GINA’s genetic information nondiscrimination rules:
Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
EEOC officials have stated publicly on certain occasions and reportedly have challenged health risk assessments or other wellness program features that request or collect family medical history or other genetic information as violating GINA’s employment discrimination rules.
Learn More At 6/4 Solutions Law Briefing
Solutions Law Press, Inc. invites employer and other employment-based group health plan sponsors, fiduciaries insurers, administrators, brokers, consultants and others to learn the key details of new Final Wellness Program regulations jointly published May 29, 2013 by the Departments of Health and Human Services, Labor and Treasury (collectively the “Agencies”) by participating in an informative and timely virtual briefing on “Making Wellness Programs Work Under New Final Tri-Agency Regulations” on June 4, 2013 beginning at Noon Central Time. To register or for additional details, seehere.
For Help or More Information
If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Solutions Law Press, Inc. Invites Employer & Other Group Health Plan Sponsors, Insurers, Administrators, Brokers, Advisors & Consultants to A Virtual Briefing On
Making Wellness Programs Work Under New Tri-Agency Final Wellness Regulations
Solutions Law Press, Inc. invites employer and other employment-based group health plan sponsors, fiduciaries insurers, administrators, brokers, consultants and others to learn the key details of new Final Wellness Program regulations jointly published May 29, 2013 by the Departments of Health and Human Services, Labor and Treasury (collectively the “Agencies”) by participating in an informative and timely virtual briefing on “Making Wellness Programs Work Under New Final Tri-Agency Regulations” on June 4, 2013.
New final wellness program regulations jointly published May 29, 2013 by the Departments of Labor, Health & Human Services and Labor tell employers and insurers how to design health risk assessment and other wellness and disease management tools in their group health plans and policies to incentivize and reward employees and other plan members to better manage their health and help manage health plan costs without violating the HIPAA Portability Rules against group health plan discrimination in premiums or eligibility based on health status.
Participants in this briefing will learn key information about:
The final wellness program regulation’s requirements for designing HRA and other group health plan wellness and disease management programs that avoid violating HIPAA’s prohibition against discrimination based on health factors as “bona fide wellness programs;”
How group health plans can take advantage of the option allowed beginning in 2014 to offer greater incentives to plan members to participate in group health plan wellness programs by amendments made under the Patient Protection and Affordable Care Act;
How new Omnibus HIPAA Privacy Rules may require group health plans and insurers to update their marketing and other privacy policies, procedures, documentation, vendor agreements and other practices for collecting, using, disclosing and safeguarding “personal health information” and “genetic health information” when administering wellness programs and other group health plan provisions;
When the EEOC views wellness programs incentives as potentially violating the Americans With Disabilities Act discrimination exposures under the Equal Employment Opportunity Commission’s (EEOC’s) current interpretation of the employment discrimination rules of Americans With Disabilities Act (ADA) and GINA; and
Other tips for designing legally compliant, effective group health plan disease management and wellness programs.
Ms. Stamer also will take questions from virtual audience participants as time permits.
About The Speaker
A Fellow in the American College of Employee Benefits Counsel, recognized in International Who’s Who, and Board Certified in Labor & Employment Law, attorney and health benefit consultant Cynthia Marcotte Stamer has 25 years experience advising and representing private and public employers, employer and union plan sponsors, employee benefit plans, associations, their fiduciaries, administrators, and vendors, group health, Medicare and Medicaid Advantage, and other insurers, governmental leaders and others on health and other employee benefit. employment, insurance and related matters. A well-known and prolific author and popular speaker Board Certified in Labor & Employment Law, Ms. Stamer presently serves as Co-Chair of the ABA RPTE Section Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Committee, an ABA Joint Committee on Employee Benefits Representative, an Editorial Advisory Board Member of the Institute of Human Resources (IHR/HR.com), Insurance Thought Leadership,com and Employee Benefit News, and various other publications. With extensive domestic and international regulatory and public policy experience, Ms. Stamer also has worked extensively domestically and internationally on public policy and regulatory advocacy on health and other employee benefits, human resources, insurance, tax, compliance and other matters and representing clients in dealings with the US Congress, Departments of Labor, Treasury, Health & Human Services, as well as state legislatures, attorneys general, insurance and labor departments, and other agencies and regulators. A prolific author and popular speaker, Ms. Stamer regularly authors materials and conducts workshops and professional, management and other training and serves on the faculty and planning committees of a multitude of symposium and other educational programs. See http://www.CynthiaStamer.com. for more details.
Registration
Registration Fee is $95.00 per person Registration required for each virtual participant. Payment required via website registration in advance of the program.. Payment only accepted via website PayPal. No checks or cash accepted. Participation is limited and available on a first come, first serve basis. Persons not registered at least 24 hours in advance not guaranteed to receive access information or materials prior to commencement of the briefing.
Equipment Requirements For Virtual Briefing Participation
This briefing will be conducted via WebEx over the internet. Participants may have the opportunity to participate via telephone, provided that participants electing to participate may incur added charges for telephone connectivity. Solutions Law Press, Inc. is not responsible for any power or system failures. Solutions Law Press, Inc. also expects to offer the opportunity for individuals unable to participate in the live briefing to listen to a recording of the briefing beginning approximately one week after the program via the Internet by registering, paying the required registration fee and following listening instructions received in response to such registration.
If you have employees that had too much or too little tax taken out of their paychecks, refer them to this new YouTube video about using the IRS withholding calculator at inbox:body:0000000001510000020000000800000000000000:Read#Third.
For Help With These Or Other Matters
If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.
Ms. Stamer has more than 24 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigrations & Customs, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, internal controls and risk management matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.
A featured presenter in the recent “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” teleconference sponsored by the American Bar Association Joint Committee on Employee Benefits, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.
A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications,She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.
You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.
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, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.
For important information concerning this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
The Obama Administration again is proposing that the Board of the Pension Benefit Guaranty Corporation (PBGC) get the power to set premium rates based on the financial soundness of company sponsors to shore up the agency’s finances in hopes of heading off the need for a government bailout of the agency’s liabilities.
PBGC, which insures traditional pensions offered by non-governmental employers continues to struggle for funding to meet the costs of funding its program of insuring failed private defined benefit pension plans. Always challenging, maintaining financial solvency has become particularly problematic with company failures soaring and investment returns down in the ailing economy. On November 16, 2012, the agency said its deficit increased to $34 billion, the largest in PBGC’s 38-year history.
The PBGC currently relies exclusively on premiums set by Congress and assets recovered from failed plans to operate and fund its private pension guarantee obligations. It presently doesn’t receive taxpayer dollars. Premiums, set by Congress, have historically been too low to meet the agency’s needs.
The Government Accountability Office issued a report saying Congress should consider “revising PBGC’s premium structure to better reflect the agency’s risk from individual plans and sponsors
The proposal to give the PBGC authority to determine premiums is intended to shore up the agency’s funding. “Without premium increases PBGC will be faced with requesting a taxpayer bailout or shutting down,” said PBGC Director Josh Gotbaum. “The current system punishes responsible companies by making them pay for the mistakes of others and punishes plans by raising rates just when companies can least afford it. Tha’s why administrations of both parties, and recently GAO, have supported giving PBGC what the FDIC has long had — the ability to set its own rates and to set them in ways that are fair.”
The Administration originally introduced the idea of allowing the PBGC to set its own premiums in 2012. It now has reintroduced the effort that ties premiums to company risk in its 2014 budget. Under the current proposal, the PBGC Board, which consists of secretaries of Labor, Commerce, and Treasury, with the secretary of Labor as chair, wouldn’t get the authority to set rates until 2015. The budget requires the board to perform a one-year study with a public comment period. Additionally, premium increases would be gradually phased in to give company sponsors time to prepare for the new rates.
For Help With These Or Other Matters
If you need help dealing with pension or other employee benefit funding, design or administration challenges, dealing with the PBGC, IRS, Labor Department or other agency or legal challenge to your organization’s existing employee benefit or other practices, or other workforce re-engineering, labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.
Ms. Stamer has more than 26 years experience advising and representing employer, employee benefit and other clients on human resources, employee benefit, internal controls and risk management matters including extensive work on workforce re-engineering and other human resources and employee benefits challenges of distressed and other companies, and related matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.
A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications,She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.
You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.
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, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.
For important information concerning this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Businesses using non-employee workers should heed the recently announced expansion of the Internal Revenue Service (IRS) Voluntary Classification VCS Program (VCS Program) as yet another warning to clean up their worker classification practices and defenses for all workers performing services for the business in any non-employee capacity.
Originally announced on September 22, 2011 in Announcement 2011-64, the VCS Program as modified by Announcement 2012-45 continues to offer businesses a carrot to reclassify as employees workers misclassified for payroll tax purposes as independent contractors, leased employees or other non-employee workers backed by the enforcement stick of the IRS’ promise to zealously impose penalties and interest against employers caught wrongfully misclassifying workers. While the IRS’s VCS Program and stepped up audits of worker classification provide a strong incentive for business to address their worker classification risks, the IRS is only one of many agencies on the alert for worker misclassification exposures. Worker misclassification also impacts wage and hour, safety, immigration, worker’s compensation, employee benefits, negligence and a host of other obligations.
All of these exposures carry potentially costly compensation, interest, and civil and in some cases even criminal penalty exposures for the businesses and their leaders. Consequently, businesses should act prudently and promptly to identify and address all of these risks and move forward holistically to manage their misclassification exposures.
Agencies charged with enforcement of these other laws as well as private plaintiffs also are on the alert for and pursing businesses for aggressive misclassification of workers in these other exposure areas. Since most businesses uniformly classify workers as either employees or non-employees for most purposes, business leaders must understand and manage the full scope of their businesses’ misclassification exposures when charting and implementing their strategy in response to the VCS Program or another voluntary compliance program, responding to an audit or other agency action, addressing a private plaintiff suit or conducting other risk management and compliance activities impacting or affected by worker classification concerns.
VCS Program Offers Limited Worker Misclassification Exposure Relief
Worker misclassification impacts a broad range of tax and non-tax legal obligations and risks well beyond income tax withholding, payroll and other employment tax liability and reporting and disclosure. A worker classification challenge or necessity determination in one area inherently prompts the need to address the worker reclassification and attendant risks in other areas.
Typically, in addition to treating a worker as a non-employee for tax purposes, a business also will treat the worker as a non-employee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, worker’s compensation, workplace safety, tort liability and insurance and other purposes.
Health Care Reform To IncreaseWorker Classification Risks
Businesses can look forward to these risks rising in 2014, when the “pay or play” employer shared responsibility, health plan non-discrimination, default enrollment and other new rules take effect under the Patient Protection & Affordable Care Act (ACA). Given these new ACA requirements and the government’s need to get as many workers covered as employees to make them work, as well as existing laws, IRS and other agencies are expanding staffing and stepping up enforcement against businesses that misclassify workers.
Whether and how ACA’s “pay-or-play” employer shared responsibility payment, default enrollment, insured health plan non-discrimination and other federal health plan rules apply to a business’ health plan requires a correct understanding of what workers considered employed by the business and how these workers are counted and classified for purposes of ACA and other federal health plan mandates.
ACA and other federal health plan rules decide what rules apply to which businesses or health plans based on the number of employees a business is considered to employ, their hours worked, their seasonal or other status, and other relevant classification as determined by the applicable rule. The ACA and other rules vary in the relevant number of employees that trigger applicability of the rule and how businesses must count workers to decide when a particular rule applies. Consequently, trying to predict the employer shared responsibility payment, if any under Internal Revenue Code (Code) Section 4980H or model the burden or cost of any other federal health benefit mandates requires each business know who counts and how to classify workers for each of these rules. Most of these rules start with a “common law” definition of employee then apply rules to add or ignore various workers. Because most federal health plan rules also take into account “commonly controlled” and “affiliated” businesses’ employees when determining rule coverage, businesses also may need to know that information for other related or commonly owned businesses.
For instance, when a business along with all commonly controlled or affiliated employers, if any, employ a combined workforce of 50 or more “full-time” and “full-time equivalent employees” (Large Employer) does not offer “affordable,” “minimum essential coverage” to every full-time employee and his dependents under a legally compliant health plan that provides “minimum essential value” within the meaning of ACA after 2013, the business generally should expect to pay a shared responsibility payment under Code Section 4980H for each month after 2013 that any “full-time” employee receives a tax subsidy or credit for enrolling in one of ACA’s health care exchanges. The amount of this required shared responsibility payment will be calculated under Code Section 4980H based on the plan design and coverage the employer health plan offers and the required employee contribution for employee only coverage.
If the business intends to continue to offer health coverage, it similarly will need to accurately understand which workers count as its employees for purposes of determining who gets coverage and the consequences to the business for those workers that qualify as full-time, common law employees not offered coverage.
In either case, ACA uses the common law employee test as the basis for classification of workers both to determine what businesses have sufficient full-time employees to become covered under these rules, the payment, if any, required under Code Section 4980H’s new employer shared responsibility payment requirements, as well as the workers entitled to benefit from these rules under employer sponsored health plans. Accordingly, These the already significant legal and financial consequences for employers that misclassify workers will rise significantly when ACA gets fully implemented beginning in 2014.
Consider VCP Program Relief In Context Of Other Worker Classification Risks
As part of a broader effort to get businesses properly to classify and fulfill tax and other responsibilities to workers, the IRS is offering certain qualifying businesses an opportunity to resolve payroll liabilities arising from past worker misclassifications under the VCS Program. The VCS Program settlement opportunity emerged in 2011 as worker misclassification amid rising scrutiny and enforcement by the IRS and other agencies against businesses for misclassification related violations of the Code, wage and hour, safety, discrimination, immigration and various other laws.
The IRS hoped the threat of much larger liability if the IRS catches their misclassification in an audit would induce businesses to settle their exposure and come into compliance by participating in the VCS Program.
Part of the low participation stemmed from restrictions incorporated into the VCS Program. Not all businesses with misclassified workers qualified to use the program. The original criteria to enter the VCS Program established in 2011 required that a business:
Be treating the workers as nonemployees;
Consistently have treated the workers in the past as nonemployees;
To have filed all required Forms 1099 for amounts paid to the workers;
Not currently be under IRS audit;
Not be under audit by the Department of Labor or a state agency on the classification of these workers or contesting the classification of the workers in court; and
To agree to extend the statute of limitations on their payroll tax liabilities from three to six years.
After only about 1000 employers used the VCS Program to voluntarily resolve their payroll tax liability for misclassified workers, the IRS modified the program in hopes of making participation more attractive to businesses in Announcement 2012-45. As modified by Announcement 2012-45, employers under IRS audit, other than an employment tax audit, now qualify for the VCS Program. Announcement 2012-45 also eliminates the requirement that employers agree to extend their statute of limitations on payroll tax liability from three to six years.
A business that meets these adjusted criteria for participation now follows the following steps to enter the VCS Program:
Files the Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before the business plans to begin treating the workers as employees;
Adjusts its worker classification practices prospectively with respect to the previously misclassified workers;
Pays the required settlement fee; and
Properly classifies workers going forward.
While these changes may make participation in the VCS Program more attractive to some employers, many employers may view use of the VCS Program as too risky because of uncertainties about the proper classification of certain workers in light of the highly fact specific nature of the determination, as well as concerns about the effect that use of the VCS Program might have on the businesses non-tax misclassification exposures for workers that would be reclassified under the VCS Program.
One of the biggest challenges to getting businesses to change their worker classifications is getting the businesses to accept the notion that long-standing worker classification practices in fact might not be defensible.
Although existing precedent and regulatory guidance makes clear that certain long-standing worker classification practices of many businesses would not hold up if scrutinized, business leaders understandably often discount the risk because these classifications historically have continued with little or no challenge in the past.
Even when business leaders recognize that changing enforcement patterns merit reconsideration of historical worker classification practices, they may be reluctant to reclassify the workers.
The common law employment test applied to decide if a worker is an employee for payroll, income tax, employee benefit plan and other purposes under the Code often relies on a subjective, highly fact-specific analysis of the particular circumstances of the worker. Employment status typically is presumed under the common law test for purposes of the Code and most other laws. This means that the business, rather than the IRS or other agency, generally bears the burden of proving the correctness of its classification of a worker as a non-employee for purposes of these determinations.
Given the business typically bears the burden of proving a worker is not an employee, a business receiving services from workers performing services in a capacity other than as a employee should ensure that the position in structural form and operation will withstand scrutiny under the common law and other applicable tests and retain the necessary evidence to support this characterization in anticipation of a potential future audit or other challenge.
Since the business can expect to bear the burden of proving the appropriateness of a nonemployee characterization, businesses also should exercise special care to avoid relying upon overly optimistic assessment of the facts and circumstances when assessing the defensibility of their characterization of the position.
When the factual evidence creates significant questions about the defensibility of a worker’s classification as a non-employee, an employing business generally should consider reclassifying or restructuring the position to be more defensible pursuant to a process designed to mitigate or resolve risks of the prior classification. Often, it also may be desirable for the business to incorporate certain contractual, compensation and other safeguards into the worker relationship, both to support the nonemployee characterization and to minimize future reclassification challenges and exposures.
Consider Importance of Attorney-Client Privilege As Risk Management Tool
Because of the broad reaching and potentially significant liability exposures arising from misclassification, business leaders generally should work to ensure that their risk analysis and decision-making discussion is conducted in a way that positions these discussions for protection under attorney-client privilege and attorney work product privilege.
The availability of the attorney-client and other evidentiary privilege to help shield the investigation and associated decision-making is particularly important because of the potentially significant civil and even criminal liability exposures that often arise from worker misclassification under various relevant laws.
The interwoven nature of the tax and non-tax risks merits particular awareness by business leaders of the need to use care in deciding the outside advisors and consultants that will help in the evaluation of the risks and structuring of solutions. With the VCS Program and other tax exposures in the limelight, businesses can expect that their accounting and other consultant advisors will recommend and even offer to lead the review. While appropriately structured involvement by these non-legal consultants can be a valuable tool, the blended nature of the misclassification exposures means that the evidentiary privileges that accountants often assert to help shield their tax related discussions from discovery in certain federal tax prosecutions are likely to provide inadequate protection against discovery given the broad non-tax related exposures inherent in the misclassification problem. For this reason, business leaders are urged to require that any audits and other activities by these non-legal consultants to evaluate or mitigate these exposures be engaged and conducted whenever possible within attorney-client privilege to protect and promote the ability to assert evidentiary protections against disclosure and discovery of sensitive discussions. Accordingly, while businesses definitely should incorporate appropriate tax advisors into the evaluation process, most businesses before commencing meaningful discussions with or engaging assessments by their accounting firm or other non-attorney tax advisor will want to engage counsel and coordinate their accounting and other non-attorney tax advisors” involvement and activities through qualified legal counsel to protect and maximize the ability to conduct the analysis of their risks and options within the protection of attorney-client privilege.
For Help With These Or Other Matters
If you need assistance in conducting a risk assessment of or responding to an IRS, Labor, HHS, DOJ, ICE, private claim or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit, compensation practices, compliance, or other internal controls and management concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer has more than 25 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigration & Customs, Justice, and Health & Human Services, the Securities and Exchange Commission, Federal Trade Commission, state labor, insurance, tax and attorneys’ general, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, tax, internal controls, risk management and other legal and operational management concerns.
Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and run legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.
A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations who is published and speaks extensively on worker classification and related matters. She is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.
You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.
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, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.comincluding:
For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Cynthia Marcotte Stamer will be one of the featured panelists discussing “Implications of PPACA” on January 18, 2013 at the American Bar Association Tort Trial & Insurance Practice Section’s (TIPS) 39th Annual TIPS Midwinter Symposium on Insurance and Employee Benefits “Emerging Issues and Litigation Relating to Life, Health, Disability and ERISA” in Fort Lauderdale.
The “Implications on PPACA” program scheduled at 3:30 p.m. on January 18, 2012 is one of many content-rich series of programs on employee benefit and insurance issues that leading practitioners will lead during the Symposium W Hotel Fort Lauderdale in Fort Lauderdale, FL on January 17-19, 2013. To register, review the full agenda or get additional information about the Symposium, seehere.
About Ms. Stamer
Managing Editor of Solutions Law Press, Inc. and a noted Texas-based employee benefits and employment lawyer with extensive involvement in the leadership of the ABA and other professional organizations involved in employee benefits, health care and workforce matters, is nationally and internationally known for her knowledgeable and creative leadership and work as an attorney, consultant, policy advocate, speaker and author helping businesses, governments, and communities on health and other insurance and employee benefits, patient education and empowerment, wellness and disease management, and other programs, policies, and processes. For more than 24 years, Ms. Stamer’s legal practice has focused on advising and representing employers, insurers, health care providers, community leaders and governments about health care and employee benefits policy and process improvement, quality, performance management, education, compliance, communications, risk management, reimbursement and finance, and other related matters. In addition to her legal practice, Stamer also extensively consults and provides leadership to a broad range of clients, professional and civic organizations, and others on strategies for improving the health care system and the ability of health care providers, payers, employers, community organizations, government agencies to promote the ability of patients and their families to access cost-effective, quality, affordable health care and other resource needs. She also has worked extensively with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters.
In addition to her service with TIPS, Ms. Stamer also is active in the leadership of a broad range of other professional and civil organizations. For instance, Ms. Stamer presently serves as Executive Director of Project COPE, the Coalition on Patient Empowerment and the Coalition for Responsible Healthcare Policy; 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 representative to the ABA Joint Committee on Employee Benefits and Vice Chair of its Welfare Benefits Committee; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; and as the Gulf Coast TEGE Council TE Committee Coordinator. 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; on many seminar faculties and in many other professional and civic leadership and volunteer roles.
Author of the hundreds 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, 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. Nationally known for her work on health care reform and related matters, Ms. Stamer also regularly conducts training and speaks on these and other management, compliance and public policy concerns. For more information about Ms. Stamer, upcoming training, publications or other materials or events, see here or contact Ms. Stamer directly via email here or (469) 767-8872.
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 concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.
President Obama’s declaration today (October 1, 2012) of October as National Disability Employment Awareness Month reminds business that U.S. businesses and their leaders need to tighten their disability discrimination risk management and compliance in light of the Obama Administration’s emphasis on aggressively interpreting and enforcing disability discrimination laws, rising private plaintiff lawsuits and other recent regulatory and judicial changes.
In his proclaimation today, President Obama reaffirmed his often stated commitment to the aggressive enforcement of disability laws and other efforts to promote opportunities for disabled individuals, stating:
“[My Administration remains committed to helping our businesses, schools, and communities support our entire workforce. To meet this challenge,… we are striving to make it easier to get and keep those jobs by improving compliance with Section 508 of the Rehabilitation Act.
As the administration marks the month, U.S. employers and other business leaders can expect the Obama Administration will be stepping up its already aggressive outreach to disabled Americans to promote awareness of their disability law rights and tools for asserting and enforcing these rights.
Business Faces Growing Employment Disability Exposures
As part of his administration’s commitment, the Obama Administration has moved to aggressively enforce the disability and accommodations of teh Americans With Disabilities Act, Section 508 of the Rehabilitation Act, and other federal disability discrimination laws. The reach and effectiveness of these efforts has been enhanced by statutory and regulatory changes that require employers to exercise greater efforts to meet their compliance obligations and manage their disability and other discrimination risks.
ADA Exposures Heightened
The ADA, for instance, generally prohibits disability discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship. Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits. Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).
In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to establish disabled status of an individual. Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled. Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA, As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:
Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments. Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have sigificantly stepped up enforcement of the ADA and other federal discrimination laws.
Rehabilitation Act Risks For Government Contractors
Beyond the generally applicable risks applicable to all employers of more than 15 employees under the ADA, federal and state government contractors face additional responsibilities and risks.
Subject to limited exceptions, government contractors providing services or supplies on ARRA or other government funded contracts or projects must comply both with generally applicable employment discrimination requirements and special statutory and contractual nondiscrimination, affirmative action, and recordkeeping requirements applicable government contractors. For instance, federal law generally requires government contractors to comply with the special equal employment opportunity requirements of Executive Order 11246(EO 11246); Section 503 of the Rehabilitation Act of 1973 (Section 503); and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Pursuant to these laws, business with the federal government, both contractors and subcontractors, generally must follow a number of statutory and contractual requirements to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. OFCCP generally audits and enforces these requirements.Memo to Funding Recipients: Compliance with Applicable Nondiscrimination and Equal Opportunity Statutes, Regulations, and Executive Orders.
OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA.
These government contractor disability discrimination risks are particularly acute where the government contractor works on or provides supplies on contacts or projects funded in whole or in part by monies provided under the American Recovery and Reinvestment Act of 2009 (“ARRA”). When the contract or project in question receives any funding out of the $787 billion of stimulus funding provided by ARRA, special OFCCP rules applicable to ARRA funded projects necessitates that federal contractors exercise special care to understand and meet their responsibilities and manage associated exposures. See, e.g. Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.
Businesses Should Act To Manage Risks
The ADAAA amendments, the Rehabilitation Act’s expanded reach, and the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify and claim protection as disabled under the ADA, the Rehabilitation Act, and other disability discrimination laws.
In light of these and other developments and risks, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA, the Rehabilitation Act and other laws. Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope.
Likewise, businesses should be prepared for the EEOC, OFCCP and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions. For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.
Businesses also should consider tightening their documentation regarding their procedures and processes governing the collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information. The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA.
As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008. Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws. For instance, GINA’s employment related provisions include rules that will:
Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.
These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.
If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the Rehabilitation Act, ADA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Board Certified Labor and Employment Attorney and Management Consultant Cynthia Marcotte Stamer at 469..
About The Author
Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource, employee benefits and management experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.
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Employers, job banks, recruiters and other parties that conduct and rely upon criminal background checks for purposes of screening applicants or making other employment decisions should check and update their practices in response to the announced plans of the U.S. Department of Labor to expand and enforce limitations on employment discrimination against individuals with criminal records as well as the criminal background check requirements of the Fair Credit Reporting Act and other applicable laws.
While criminal or other background checks often are mandated or otherwise business justified, employers and others conducting or using background check information need to understand and comply with legal requirements about the use and administration of criminal or other background checks.
Potential Employment Discrimination Exposures From Criminal Background Checks
Over the past several months, Labor Department officials have identified protection of individuals with criminal backgrounds against employment discrimination as a policy and enforcement priority.
In keeping with this goal, the Labor Department Employment and Training Administration (ETA), with the Civil Rights Center (CRC). on May 25, 2012 published updated training guidance for about exclusions based on criminal records, and how they are relevant to the existing nondiscrimination obligations for the public workforce system and certain other entities that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants in Training and Employment Guidance Letter No. 31-11(TEGL) along with the following accompanying guidance documents:
Meet FCRA Criminal & Other Background Check Requirements
When conducting such a criminal or other background check using a third-party or the internet, care should be taken to comply with the applicable purpose, notice and consent requirements for conducting third-party conducted background checks under the Fair Credit Reporting Act (FCRA) and otherwise applicable law.
Since criminal and other background investigations generally qualify as a credit check for purposes of the FCRA, employers, recruiters, job banks and other parties conducting background checks for employment related purposes risk significant liability for conducting these activities without providing the proper notifications and obtaining necessary consents. Additional requirements often also may apply under applicable state laws, labor-management contracts, government contracting requirements or other similar requirements. Consequently, before doing any credit or other background check, employers or others should ensure that they have the policies, disclosures, data security and written consents required to comply with the FCRA and other laws.
With these procedures in place, employers or others planning to use criminal or other background checks then should work to manage discrimination and other potential risks associated with potential challenges to their use of the information.
Among other things, businesses should carefully document the business justification for their use of the background check and restrict the data they request and receive to information relevant to that purpose. The collection and receipt of this information should be structured and managed in such a way to mitigate employment discrimination, privacy and other legal risks and to promote defensibility. For instance, proper procedures should be used to lower the risk of a pattern of prohibited discrimination on race, national origin, disability or other similar employment discrimination laws. Likewise, collection or receipt of information such as bankruptcy history or other liability sensitive information should be avoided unless a legally defensible need and appropriate procedures governing use can be demonstrated in operation. Care also should be taken to apply the criteria uniformly. Given ADA, GINA, FACTA and other privacy concerns, employers also should specifically check their data collection and protection procedures for adequacy.
To help with these and other concerns, consider defining and documenting in advance the relevant criteria for the position and why it is relevant. Where possible, try to avoid getting information beyond that defined as relevant which could raise sensitivities. Since the FCRA requires notice if adverse hiring decisions are made, employers also should carefully evaluate and document the basis of their decisions when deciding not to hire or promote individuals based on this information and appropriately safeguard this information against improper use or disclosure.
For Help Or Additional Information
If you need help reviewing and updating, administering or defending your background check or other employee benefits, human resources, health care or insurance matters, please contact the author of this update, Cynthia Marcotte Stamer.
Board Certified in Labor and Employment Law, a Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on human resources, recruitment, employee benefits, compensation, credentialing, promotion and discipline and related workforce and risk management matters.
Widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend employment and other services arrangements and assocaited employee benefit, compensation, reductions in force and other severance and other human resources, employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s r management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here.
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Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.
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This week’s announcement by the U.S. Justice Department of the largest residential fair lending settlement in history on December 21, 2011 highlights the widening scope of exposures that U.S. businesses face under a broad range of federal Civil Rights and other discrimination laws. The settlement shows that discrimination risks are rising and that employment discrimination is only part of the problem. In addition to managing employment discrimination exposures in their employment practices, many businesses and business leaders also need to take steps to adequately recognize and provide policies, management controls and training to maintain compliance with federal disability and other discrimination laws prohibiting discrimination against disabled or other customers or others with whom they do business.
Human resources and other management leaders should move quickly to help their organizations manage these risks and responsibilities.
Countrywide Settlement
This week’s Justice Department settlement with Countrywide Financial Corporation and its subsidiaries (Countrywide) provides for payment of $335 million in compensation to the more than 200,000 qualified African-American and Hispanic borrowers that Federal officials allege were victims of the widespread pattern or practice of illegal discrimination against qualified African-American and Hispanic borrowers by Countrywide while Countrywide served as one of the nation’s largest single-family mortgage lenders and originated more than 4 million residential mortgage loans. Bank of America now owns Countrywide.
Federal officials charged Countrywide engaged in discriminatory mortgage lending practices against more than 200,000 qualified African-American and Hispanic borrowers from 2004 through 2008. The Justice Department claimed it uncovered a pattern or practice of discrimination involving victims in more than 180 geographic markets across 41 states and the District of Columbia. These discriminatory acts allegedly included widespread violations of the Fair Housing Act and the Equal Credit Opportunity Act, and resulted in African-American and Hispanic borrowers being charged higher rates for mortgage loans – solely because of their race or national origin.
According to Attorney General Eric Holder, today’s settlement will compensate the more than 200,000 African-American and Hispanic borrowers who were victims of discriminatory conduct, including more than 10,000 African-American or Hispanic borrowers who – despite the fact that they qualified for prime loans – were steered into subprime loans. Subprime borrowers pay higher penalties and higher interest rates, have a greater likelihood of default and foreclosure than with prime loans, and other damages.
When announcing the settlement, Attorney General Holder reaffirmed the Obama Administration’s commitment to finding and prosecuting businesses that engage in illegal discriminatory practices. To read Attorney General Eric Holder’s remarks, click here.
Discrimination Obama Administration Priority
Enforcing disability discrimination laws is a high priority of the Obama Administration Business leaders increasingly recognize the need to tighten procedures to manage disability discrimination risks.
These regulatory, audit, enforcement and other actions show that private businesses and state and local government agencies alike should exercise special care to prepare to defend their employment and other business practices against potential disability or other Civil Rights discrimination challenges on a broad range of fronts.
HR Key Player
Human resources professionals are key players to efforts to effectively manage their organization’s overall discrimination risks and responsibilities by managing compliance throughout the organization.
All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws. When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.
Federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes, risk management efforts should begin with an assessment of the adequacy of existing policies and practices in light of the latest rules and enforcement actions. Based on this assessment, business and governmental organizations should update policies and procedures as required, tighten documentation, and conduct ongoing, well-documented audits and training to mitigate exposures.
Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities to persons with disabilities or others with whom the business deals who may be protected under Federal or state disability discrimination laws. In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts. Most businesses also may want to provide and post information about processes that customers or others who may have a concern about the needs of persons with these special needs to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal complaint.
If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.
For Help With Compliance, Risk Management & Defense
If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamerhere or at (469)767-8872. If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available at www.cynthiastamer.com.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.
Multiple and multi-employer health and other welfare plans are subject to special Form M-1 and other reporting and disclosure and other requirements under Federal law as amended by the Patient Protection and Affordable Care Act (“Affordable Care Act”).
The Department of Labor’s Employee Benefits Security Administration (“EBSA”) updated its website with the following new guidance under the Affordable Care Act today:
If you need help reviewing or updating your health benefit program for compliance with ACA or other laws or with any other employment, employee benefit, compensation or internal controls matter, please contact the author of this article, attorney Cynthia Marcotte Stamer.
A 2011 inductee to the American College of Employee Benefits Council, immediate past-Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, the ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, and a widely published speaker and author, Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers. plan administrators and other services providers, and governments on health care, retirement, employment, insurance, and tax program design, administration, defense and policy. Nationally and internationally known for her creative and highly pragmatic knowledge and work on health benefit and insurance programs, Ms. Stamer’s experience includes extensive involvement in advising and representing these and other clients on ACA and other health care legislation, regulation, enforcement and administration.
Widely published on health benefit and other related matters, Ms. Stamer’s insights and articles have been published by the HealthLeaders, Modern Health Care, Managed Care Executive, the Bureau of National Affairs, Aspen Publishers, Business Insurance, Employee Benefit News, the Wall Street Journal, the American Bar Association, Aspen Publishers, World At Work, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others.
For additional information about Ms. Stamer and her experience, see www.CynthiaStamer.com.
HR Key Player In Managing Rising Race & Other Discimination Suits Under Obama Administration Justice Department
The Obama Administration’s December 2 announcement of its revocation and replacement of Bush Administration policies on affirmative action in education highlights the heightened aggressiveness under the Obama Administration on the implementation, interpretation and enforcement of race, sex, disability, national origin and other federal discrimination and Civil Rights laws.
The new guidance discussed in more detail at http://wp.me/p1hsKH-1k makes clear the Administration’s view that schools can and should be doing more to promote integration and other affirmative action efforts in the schools and other organizations. It also gives a number of examples of the types of steps that the Administration believes schools should be pursuing. While specifically directed in schools, it provides insights about the affirmative action expectations of the Administration that merit notice by all public and private organizations and businesses.
The Justice Department under the Obama Administration in making discrimination in schools and other state and local agencies as well as by private businesses a priority. For instance, in addition to tightening and enforcing race discrimination laws, the Justice Department on November 23, 2011 sued the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities.
These and other activities are part of a growing number of regulatory and enforcement actions under the Obama Administation that illustrate the growing risk created for private and public organizations by failing to manage compliance with discrimination or other civil rights laws in the conduct of their business operations, as well as employment practices.
While most governmental agencies and businesses recognize the need to manage compliance with discrimination laws in their employment practices, many fail to adequately recognize and provide policies, management controls and training to maintain compliance with federal discrimination laws prohibiting discrimination in dealing with customers, vendors or other swith whom they do business.
Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities with whom the business deals who may be protected under Federal or state race or other discrimination laws. In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts. Most businesses also may want to provide and post information about processes that customers or others who may have a concern about potential prohibited discrimination to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal complaint.
If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.
For Added Information and Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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.
Latest Action Shows Obama Justice Department Aggressively Enforcing Discrimination Laws
The Justice Department on November 23, 2011 sued the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities. The latest in a growing string of disability and other discrimination suits brought by the Justice Department since the Obama Administration took office, it highlights the growing risk created for private and public organizations by failing to manage compliance with disability or other civil rights laws in the conduct of their business operations, as well as employment practices.
The lawsuit filed in the U.S. District Court for Nebraska, charges that UNK and its employees engaged in a pattern or practice of violating the Fair Housing Act or denied rights protected by the act by denying reasonable accommodation requests by students with psychological or emotional disabilities seeking to live with emotional assistance animals in university housing.
The Justice Department suit also charges that UNK requires students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests.
The latest in a growing series of disability discrimination lawsuits brought by the Justice Department against public and private landlords and a growing list of other businesses, the UNK lawsuit arises from a complaint filed with the Department of Housing and Urban Development (HUD) by a student enrolled at UNK who sought to live with an emotional assistance dog that had been prescribed. The lawsuit seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed by the defendants’ actions, and a civil penalty.
The federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. With regard to disability discrimination, the Fair Housing Act requires housing providers to give reasonable accommodations for people with disabilities so that all have equal housing opportunities and limits the medical information that landlords can require from persons seeking disability accommodation in order to receive an accommodation.
The Obama Administration Justice Department has made enforcement of disability and other federal discrimination laws a key priority. Businesses should tighten policies, practices and training to minimize exposures to Justice Department or private plaintiff complaints for violations under these laws.
While most businesses recognize the need to manage compliance with the ADA and other discrimination laws in their employment practices, many businesses and business leaders fail to adequately recognize and provide policies, management controls and training to maintain compliance with federal disability and other discrimination laws prohibiting discrimination against disabled or other customers or others with whom they do business. Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities to persons with disabilities or others with whom the business deals who may be protected under Federal or state disability discrimination laws. In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts. Most businesses also may want to provide and post information about processes that customers or others who may have a concern about the needs of persons with these special needs to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal complaint.
If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.
For Added Information and Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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.
The Employer Assistance and Resource Network (EARN) will be hosting four weekly webinars in celebration of National Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities in the Workplace; the Employment of Persons with Disabilities; the Work Opportunity Tax Credit; and the Workforce Recruitment Program. To learn more, see Free Webinar Series for Employers Beginning October 6.
For Help With These Or Other Matters
If you would like help reviewing or defending your organization’s labor and employment, health or other employee benefit or insurance programs, need legal representation on health plan or other employment, employee benefits, or other management controls or risk management matters or wish to discuss arranging for Ms. Stamer to conduct training or speak for your organization, please contact Ms Stamer here.
Immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on labor and employment, employee benefit and related workforce, insurance and health care matters.
A board certified labor and employment attorney widely known for her extensive practical knowledge and experienced with human resources and other workforce staffing and management matters, Ms. Stamer has extensive experience helping employer and other management organizations manage and resolve risks arising under employment discrimination and other employment laws. She also works with employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources programs and practices. She works extensively with employers, plan sponsors, insurers, administrators, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals. Ms. Stamer also is a widely published author and highly regarded speaker on these and other human resources, employee benefit, and internal controls matters who is active in many human resources, employee benefits, and other management focused organizations.
You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer here. For important information concerning this communication click 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, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.
THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
Program Another Sign of Growing Audit & Enforcement Risks. Businesses Urged To Strengthen Their Worker Classification Defenses
The September 22, 2011 launch by the Internal Revenue Service of a new Voluntary Worker Classification Settlement Program (“Settlement Program”) is the latest warning to businesses using independent contractors, leased employees or other non-employee workers of the need to review critically within the scope of attorney-client privilege the defensibility of their existing classification and treatment of those workers as non-employees in light of the in light of stepped up scrutiny and enforcement emphasis by the IRS and other federal and state regulators as well as workers and others in private litigation.
Coupled with growing scrutiny and challenges to businesses efforts to avoid employment-related liability and obligations through the use or workers that the business characterizes as non-employees by other federal and state agencies and plaintiff attorneys, the Settlement Agreement announcement is another sign that businesses using workers who are not employees need to be prepared to defend their worker classification and the legality of their dealings with these workers under applicable federal and state laws.
To guard against these and other growing risks of worker classification, employers receiving services from workers who are not considered employees for purposes of income or payroll should review within the scope of attorney-client privilege the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies and consult with qualified legal counsel about the advisability to adjust these practices to mitigate exposures to potential IRS, Labor Department or other penalties associated with worker misclassification.
Settlement Program Establishment Should Prompt Review Defensibility of Worker Classifications
The new Settlement Program established under Announcement 2011-64 reflects the widespread emphasis by the IRS and other federal and state regulators on uncovering and redressing misclassification of workers as non-employees by businesses for purposes of tax and other laws. IRS scrutiny of worker classification practices by businesses has risen significantly over the past decade.
The IRS’ launch of the Settlement Program follows its announcement in September, 2010 of plans to conduct approximately 6,000 payroll tax audits over a three year period focusing on the appropriateness of employer worker classification and other payroll tax practices. The announcement of the new Settlement Program signals that the IRS perceives that worker misclassification by business in violation of Federal tax laws is sufficiently widespread and pervasive to merit both efforts to incentive voluntary correction through participation in the Settlement Program, as well as stiff enforcement against businesses that fail to self-correct worker classification compliance concerns.
Designed to increase tax compliance and provide what the IRS says will be “greater certainty for employers, workers and the government,” the IRS says the Settlement Program offers eligible employers concerned about potential worker misclassification exposures that might arise from a payroll tax audit the opportunity to come into compliance by making the required filing, adjusting their practices and paying the required settlement fee effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. If this settlement fee is paid and the other requirements of the Settlement Program are met, the Settlement Program specifies that employers accepted into the program will not be assessed interest or penalties and not be audited on payroll taxes related to these workers for prior years.
For businesses that can meet applicable requirements for participation, participation in the Settlement Program may offer an attractive option for resolving payroll related tax risks. However, not all employers will qualify for the Settlement Program. Employers must meet the eligibility requirements for participation.
Also, employers electing to use the Settlement Program need to understand the implications of that participation on the Statute of Limitations on their payroll tax liabilities. For the first three years of participation in the program, the Settlement Program specifies that participating employers will be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes. Businesses will need to weigh the benefits of using the Settlement Program, if available, against the risk of reclassification and the availability of other resolution options that may be available under applicable Internal Revenue Code and IRS rules and procedures. Furthermore, many businesses evaluating worker classifications also may find it difficult to determine with certainty the risk of reclassification for certain categories of workers. Whether a worker is properly classified as an employee for most purposes under the Internal Revenue Code’s income tax withholding and reporting, payroll tax and most other employment tax turns on a highly fact specific analysis of under a common law employment test. When an analysis of the evidence reflects a high degree of certainty that the classification of a worker as a non-employee was not defensible under existing tax authorities, use of the Settlement Program or other tools to resolve liability definitely merits consideration. Because of the factual nature of the analysis, however, the decision whether to use the Settlement Program where the circumstances under which the worker renders services are less clear may be more difficult. When making these assessments, businesses should avoid the temptation of being overly optimistic in their assessment of the facts and circumstances given that the Internal Revenue Code generally assigns responsibility to the business to prove the appropriateness of its classification of a worker as a non-employee. While this allocation of the burden of proof means businesses should exercise caution when engaging workers in non-employee capacities, where the facts support this characterization, classification of a worker as a non-employee can be appropriate. When deciding to continue the non-employee characterization for purposes of the Internal Revenue Code, however, businesses are urged to document the evidentiary basis and evidence supporting that determination in anticipation of a potential future audit or other challenge.
Learn more about the Settlement Program and worker classification risk management here.
Businesses Should Address Other Worker Reclassification Risks When Conducting Settlement Program Risk Analysis
As welcome as the opportunity to resolve potential payroll tax exposures through participation in the Settlement Program, businesses considering using the Settlement Program also will need to understand and prepared to address various non-tax legal concerns. Because worker misclassification tends to impact on a broad range of legal obligations and risks, businesses evaluating or planning to use the Settlement Program are act quickly, but carefully, to evaluate and determine whether and how to use the Settlement Program and to identify and take appropriate steps to address both the tax-related liabilities targeted for resolution under the Settlement Program, as well as misclassification exposures likely to arise with respect to workers to be reclassified in connection with the use of the Settlement Program.
When conducting this evaluation and deciding whether to use the Settlement Program, businesses also need to keep the wider implications of the analysis and their decisions regarding how to handle a potential aggressive or misclassification as a worker as a non-employee. A determination of potential aggressive or misclassification for purposes of the Internal Revenue Code’s payroll tax rules generally will necessitate the need to evaluate potential exposures that may arise from the worker misclassification under other federal and state laws.
Typically, in addition to treating a worker as a non-employee for tax purposes, a business also will treat the worker as a non-employee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, worker’s compensation, workplace safety, tort liability and insurance and other purposes. Consequently, a determination that reclassification is advisable for tax purposes generally will prompt the need to consider how to address the worker reclassification and attendant risk for purposes of other legal risks and requirements, as well as those covered by the Settlement Program. Businesses will need to consider how the voluntary reclassification of workers and settlement under the Settlement Program may impact their exposures and obligations under other laws. As the Settlement Program does not provide relief from the exposures arising from misclassification under other laws, businesses should be prepared to evaluate the advisability of reclassification of the worker for purposes of these other laws, the potential exposures attendant to misclassification of workers under those laws, and risks, challenges and opportunities for mitigating these exposures.
Businesses Cautioned To Conduct Evaluations & Discussions In Attorney-Client Privilege Due To Complexity & Significance of Potential Exposures
Conducting and discussing the Settlement Program and other related concerns within the scope of attorney-client privilege is particularly important because of the potentially significant civil and even criminal liability exposures that may arise from misclassification of workers for purposes of the various relevant laws. Because of the broad reaching and potentially significant non-tax exposure inherent in these discussions, business leaders are cautioned that the evidentiary privileges that often provides protection against disclosure of certain discussions with accountants and certain other non-attorney tax advisors for purposes of certain tax laws may be inadequate in scope to protect discussions against discovery for purposes of these other laws. Accordingly, while businesses definitely should incorporate appropriate tax advisors into the evaluation process, most businesses before commencing meaningful discussions with or engaging assessments by their accounting firm or other non-attorney tax advisor will want to engage counsel and coordinate the involvement of their accounting and other non-attorney tax advisors through qualified legal counsel to protect and maximize the ability to conduct the analysis of their risks and options within the protection of attorney-client privilege.
For Help With These Or Other Matters
If you need assistance in conducting a risk assessment of or responding to an IRS, Labor Department or other legal challenges to your organization’s existing workforce classification or other labor and employment, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer.
Ms. Stamer has more than 24 years experience advising and representing employer, employee benefit and other clients before the Internal Revenue Service, the Department of Labor, Immigrations & Customs, and other agencies, private plaintiffs and others on worker classification and related human resources, employee benefit, internal controls and risk management matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experience worker classification and other employment, employee benefits and workforce matters, Ms. Stamer works extensively with employers, employee benefit plan sponsors, insurers, administrators, and fiduciaries, payroll and staffing companies, technology and other service providers and others to develop and operate legally defensible programs, practices and policies that promote the client’s human resources, employee benefits or other management goals.
A featured presenter in the recent “Worker Classification & Alternative Workforce: Employee Plans & Employment Tax Challenges” teleconference sponsored by the American Bar Association Joint Committee on Employee Benefits, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters who is active in many other employee benefits, human resources and other management focused organizations.
A Fellow in the American College of Employee Benefits Council, the immediate past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, the Vice Chair of the ABA TIPS Employee Benefits Committee, the Gulf States Area TEGE Council Exempt Organizations Coordinator, past-Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, and the editor and publisher of Solutions Law Press HR & Benefits Updateand other Solutions Law Press Publications,She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.
You can learn more about Ms. Stamer and her experience, find out about upcoming training or other events, review some of her past training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns from Ms. Stamer at www.CynthiaStamer.com.
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, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.
For important information concerning this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. 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.
A new 2011 U.S. Department of Labor Bureau of Labor Statistics Study of employee benefits offered shares key insights into how many employers offer employer-provided health and other benefits The study shows that health and other benefits offered by employers, how much employers contribute and when employees enroll in offered benefits varies widely varied by whether the employer is a government or private sector employer, the industry, size and other characteristics of the employer and the income, profession, education and other characteristics of the employee. It is no surprise that government employers that can pass along costs to taxpayers provide coverage more broadly and subsidize more of the cost.
With regard to health benefits, the report reveals that practices vary significantly among employers, on average, medical care benefits were available to 69 percent of private industry workers and half of workers participated in a medical plan. For single coverage, private sector employers paid 80 percent of the medical care premiums for full-time workers and 69 percent of medical care premiums for full-time workers in private industry. Data shows employees often elect not to take offered coverage.
In addition to data on medical benefits, the study also reports that paid leave remains the most commonly provided benefit nationally and includes data on other benefits.
The DOL highlights 1st time reporting of domestic partner status for 1st time in its announcement. Data also provided on paid vacation and other leave.
If you have questions or need help understanding or responding to the Regulations, with other health benefit design, administration or operations concerns, or with other employee benefits, compensation, labor or employment or other workforce management concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.
Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, and a council member of the ABA Joint Committee on Employee Benefits, Ms. Stamer is nationally recognized for her more than 23 years pragmatic and innovative health program work.
Board certified in labor and employment law by the Texas Board of Legal Specialization with extensive leading edge health plan experience, Ms. Stamer has worked continuously throughout her career helping health plan sponsors, fiduciaries, administrators, insurers and others design, administer and defend health and other employee benefit and insurance programs domestically and internationally. She is widely recognized for her experience helping design and implement legally compliant self-insured and insured health reimbursement, mini-med, high-deductible health plans, limited benefit plans, 24-hour and occupational medicine, ex-pat and medical tourism, deductible reimbursement and other creative health benefit programs to solve a wide range of financial and other challenges while coping with changing regulatory and market realities. Her work includes both working with clients to design, document, implement and administer these and other arrangements, as well as the development of wellness and disease management, claims administration and appeals, eligibility, and other administrative services, processes and technologies. She also works with plan fiduciaries, plan sponsors, insurers, administrators, brokers and advisors, bankruptcy trustees, creditors, debtors, service providers and their officers and directors about the prevention, investigation, mitigation and resolutions of civil and criminal liability arising from suspected or known benefit administration claims, breaches of fiduciary duty, privacy and data security breach, vendor disputes and other disputes arising in relation to employee benefit and insurance arrangements. As a continuing part of this representation, Ms. Stamer regularly represents and defends plan sponsors, fiduciaries, third party administrators and other service providers and management officials in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.
Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, World At Work, the ICEBS, SHRM and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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 including:
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.
The National Labor Regulations Board (NLRB)’s announcement of a settlement against a Connecticut nursing home operator this week in conjunction with a series of other enforcement actions highlight the need for businesses to tighten defenses and exercise other caution to minimize their organization’s exposure to potential NLRB charges or investigation. As reflected by many of these enforcement acts, the exposures arise both from active efforts by businesses to suppress union organizing or contracting activities, as well as the failure to identify and manage hidden labor law exposures in the design and administration of more ordinary human resources, compliance, business operations and other policies and practices.
On May 17, 2011, the NLRB announced here that Connecticut nursing home operator Spectrum Healthcare has agreed to settle a NLRB case involving multiple allegations of unlawful suspensions, discharges and unilateral changes in violation of the National Labor Relations Act and other federal labor laws by offering reinstatement and back pay to all discharged and striking workers and signing a new three-year collective bargaining agreement with its employees’ union, New England Health Care Employees Union District 1199, SEIU.
Along with the contract and reinstatement of all employees, the company agreed to pay $545,000 in back pay and pension benefits to employees who were harmed by the unfair labor practices, and to expunge any disciplinary records related to the case. As a result, all NLRB charges against the company have been withdrawn. Spectrum admits to no wrongdoing in the settlement.
The settlement, reached midway through a hearing before an NLRB administrative law judge in Connecticut and approved by the judge yesterday, ends a long-running dispute which grew into a strike by almost 400 employees at four nursing homes in Connecticut operated by Spectrum Healthcare, LLC. Complaints issued by the NLRB Regional Office in Hartford alleged that, beginning in the fall of 2009, several months after the prior collective bargaining agreement expired, Spectrum discharged seven employees and suspended three others to retaliate against their union activities and to discourage other employees from supporting the union. In addition, one employee was discharged and seven others were suspended after the employer unilaterally changed its tardiness discipline policy without first bargaining with the union.
The complaints further alleged that in April 2010, employees at the four nursing homes — in Derby, Ansonia, Winsted, and Hartford — went on strike to protest the unfair labor practices. When the strikers offered unconditionally to return to work in late August, the employer refused to take them back. Under federal labor law, if a strike is called because of an unfair labor practice, employees are entitled to reinstatement after an unconditional offer to return to work.
The reinstated employees are due to return to the facilities this week.
The Spectrum Healthcare settlement is reflective of the growing number of NLRB enforcement orders against employers generally and health care providers specifically under the Obama Administration. The Obama Administration has close ties and has expressed its strong and open support for union and union organizing activities. The adoption of a series of union friendly labor law reforms was one of the key campaign promises of President Obama during his election campaign. While other legislative priorities and the change in the leadership of the House of Representatives appears to have slowed efforts to push through this agenda, it has not slowed the Administration’s efforts to support unions with strong enforcement activities. Empowered by a difficult economic and job situation and an awareness of the Obama Administration’s strong support for union organizing and other activities, unions are stepping up organizing efforts and more aggressively challenging employers actions.
Along side the Spectrum Healthcare and Boeing actions, in recent weeks, the NLRB also has been busy with several other enforcement activities. For instance:
On May 9 2011, the NLRB issued a complaint against Hispanics United of Buffalo (HUB), a nonprofit that provides social services to low-income clients, that alleges that HUB unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook ; and
On May 17, the NLRB secured a temporary injunction from a U.S. District Court in San Jose California against San Jose area waste hauling company OS Transport LLC, charged with engaging in unfair labor practices including the termination of a lead organizer and another Union supporter, retaliation against Union efforts in the form of unfavorable assignments, threats to Union supporters, and promises of improved treatment of employees who disavow the Union for the alleged purpose of defeating a union. o offer reinstatement to two drivers and restore full assignments to other drivers who had expressed support for a union during an organizing campaign. More Details here.,
Amid this difficult enforcement environment, business leaders should exercise special care to prepare to defend their actions against both potential organizing efforts, to understand the types of actions and activities that may help fuel charges, and take steps to manage these and other union organization and other labor risks.
For Help With Labor & Employment, Employee Benefits Or Other Risk Management and Defense
If you need assistance in auditing or assessing, updating or defending your labor and employment, employee benefits, compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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 including:
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.
Employers Urged To Tighten Disability Related Discrimination Risk Management
Employers should review and update their existing employment and employee benefit practices in response to updated regulations (Final Regulations) governing the disability discrimination rules of the Americans With Disabilities Act as amended by the ADA Amendments Act (ADAAA) that the Equal Employment Opportunity Commission (EEOC) will publish in the Friday, March 25, 2011 Federal Register.
On Thursday, March 24, 2011, the EEOC released an advance copy of the Final Regulations along with two Question-and-Answer documents about the Final Regulations to aid the public and employers – including small business – in understanding the law and new regulations. The Final Regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website here .
The changes contained in the updated Final Regulations update the EEOC’s disability regulations in response to amendments made to the ADA by Congress as part of the ADAAA. Like the ADAAA they implement, the Final regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).
The Final Regulations and the ADAAA amendments they implement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. Since these changes make it easier for certain employees to qualify as disabled under the ADA, businesses should act strategically to mitigate their ADA exposures in response to the Final Regulations. Learn more about the Final Regulations and get suggestions for risk management of expanding disabilities discrimination exposures here.
For Help With Disability Discrimination Risk Management or Other Needs
If you need assistance in auditing or assessing, updating or defending your disability management or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters.Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.
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 including:
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On the 1st anniversary of the passage of Health Care Reform, let’s celebrate by accepting the invitation from Joe Biden to “discuss how health care reform is already working.”
Below is the text of an e-mail I (and millions of other Americans, I suspect, received an e-mail from Joe Biden, in which he touts health care reform as already saving patients like a young man from Minnesota. In the e-mail, Biden says: “On the one-year anniversary of the Affordable Care Act, I think we have a duty to discuss how reform is already working.” OK, tell me what you think?
Unquestionably, health care reform produces some winners and loosers. Although few of the reforms enacted are actually in effect yet, Biden says heath care reform is working and credits the law for saving the life of the young man and millions of others. On the other hands, many patients and doctors treating patients with cancer and other life threatening illnesses complain and report fears that in the future increasing Medicare, Medicaid or other government regulations and market distruptions. Some folks think it’s all good. Other’s think it’s all bad. Many American’s think it’s a little bit of both and many just don’t know.
Where does the truth lie? On the 1st anniversary of the passage of health are reform, one thing is certain. The American health care system and it’s impact on our employees, families, friends, communities and goverment and personal budget’s is too great to be complacent. So, as Health Care Reform turns one, let’s accept the invitation of Vice President Biden and share our experiences and thoughts with our elected representatives, regulators, with others on with others on the Coalition for Responsible Health Care Policy linkedin a the following link and keep the discussion going until we get it right:
Coalition for Responsible Health Care Policy
Here’s the e-mail from “Joe Biden [info@barackobama.com]”
Cynthia –I want to tell you about a family in Minnesota.
Justin and Kari live in Brooklyn Park, right outside of Minneapolis. They’re parents to three children. Their three-year-old, William, was born with a genetic disorder called tuberous sclerosis complex.
For the rest of his life, William will wrestle with tumors in his brain, his heart, his kidneys, his skin, and possibly other major organs. He must take medication to control seizures and faces the threat of kidney disease.
What Justin and Kari want for William is a future. And because of health reform, that’s what he’ll have.
Today, insurance companies are no longer able to discriminate against William because of the condition he’s dealt with since birth. Now, Justin and Kari know they’ll be able to get the kind of care that William needs — today and into the future.
Their story isn’t unique, but it’s one of many that need to be told. We all know people whose lives have been changed because of the Affordable Care Act, even if we don’t realize it. So we’ve found a way to show exactly how reform is working for all of us — for our parents, our siblings, our kids, ourselves.
Before the Affordable Care Act, Justin and Kari weren’t sure about the future. They worried that they’d never be able to find coverage for William again if Justin lost his job. They worried about the life that William would lead — whether he’d ever be able to work or support a family.
Not anymore. William’s condition isn’t going away, but he’ll always be able to get care. The Affordable Care Act is one year old today, and it has already changed William’s life — and this country — for good.
Today, there are families who feel better about the future than they did a year ago. They’ve found some security, some relief. And these are people we know. They’re our neighbors, our colleagues, our friends, our families — the people next to us every day.
On the one-year anniversary of the Affordable Care Act, I think we have a duty to discuss how reform is already working.
Watch Justin and Kari tell their story, and take a moment to learn how health reform is changing the lives of those you know:
A year ago, I stood next to the President as he signed health reform into law — and we have you to thank for making that possible.
Yours,
Joe
Paid for by Organizing for America, a project of the Democratic National Committee — 430 South Capitol Street SE, Washington, D.C. 20003. This communication is not authorized by any candidate or candidate’s committee.
The U.S. Equal Employment Opportunity Commission (EEOC) today issued final regulations (“Final Regulations”) implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). Employers, employment agencies, labor organizations, joint labor-management committees, and others impacted by GINA should carefully review and update their hiring and background check, sick and family leave, disability accommodation, and other existing policies and practices to comply with the updated guidance provided by the Final Regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure
Effective since November 21, 2009, Title II of GINA prohibits employers of 15 or more employees from discriminating in employment based on genetic information and restricts the acquisition and disclosure of genetic information by covered employers and certain other parties.
Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Under GINA, employees and individuals can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.
Meanwhile, Title I of GINA prohibits group health plans and health insurers from discriminating in eligibility or premium based on genetic information and requires these plans and insurers to protect the privacy of genetic information (Title I) for plan years beginning after May 20, 2009.
When assessing potential GINA risks and exposures, employers and others covered by its provisions must exercise care not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to collecting or using this information. Many employers will be surprised by the breadth of the depth of “genetic information.” Because of GINA’s broad definition of “genetic information,” its provisions create potential liability concerns for a surprisingly wide range of employment and health plan practices.
The Final Regulations published today implement the employment discrimination rules of GINA Title II. The EEOC previously published proposed regulations interpreting Title II of GINA in March, 2009. Concurrent with its release of the Final Regulations, the Commission also issued two question-and-answer documents on the final GINA regulations. For links to today’s guidance and more details, see here.
Failing to properly address GINA compliance could expose employers to substantial risk. Violation of the employment provisions of Title II subjects an employer to potentially significant civil judgments like those that generally are available for race, sex, and other federal employment discrimination claims covered by the Civil Rights Act. Accordingly, employers and others who have not already done so should act quickly to review and update their policies and procedures to manage their new compliance and liability exposures under GINA. Employers and others covered by GINA also should assess their leave and other records and practices for data that could be considered genetic information and take appropriate steps to safeguard this information to comply with the confidentiality, nondiscrimination and anti-retaliation rules of GINA, the Americans with Disabilities Act and other applicable laws.
For More Information Or Assistance
If you need assistance evaluating or defending existing or proposed practices under GINA or with other workforce, employee benefit, compensation, internal controls or risk management practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.
About Ms. Stamer
Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, health and other employee benefit plans, their sponsors, fiduciaries and plan administrators, consultants, vendors, outsourcers, insurers, governments and others about employment, employee benefit, compensation, and a wide range of other performance, legal and operational risk management practices and concerns. As a part of this work, Ms. Stamer has worked extensively with client to manage risks and defend practices under GINA, the ADA and a wide range of employment discrimination, privacy and other laws. A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on GINA and other employment and employee benefit risk management practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations. Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see hereor contact Ms. Stamer.
Other Resources & Developments
If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.
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Two new Equal Employment Opportunity Commission (EEOC) lawsuits filed against a Texas concrete manufacturer and Los Angeles garment manufacturer highlight the need for U.S. employers with more than 14 employees to consider and prepare to defend against potential disability discrimination exposures when dealing with medical leave requests by employees who might be considered disabled under the Americans with Disabilities Act (ADA) as well as other expanding ADA enforcement exposures. Read more.
The lawsuits reflect that employers considering an employee’s request for medical leave should evaluate if the ADA requires the employer to grant the requested medical leave in addition to considering any otherwise applicable leave entitlement the requesting employee qualifies for under the Family & Medical Leave Act, state leave laws or otherwise applicable employer policies. As a result, all employers of 15 or more employees generally should review and tighten their policies and processes for evaluating requests for medical leave to minimize their exposure to claims that the denial of a requested medical leave violated the ADA.
Furthermore, employers also should consider the advisability of other more generalized policy or procedure updates to strengthen their defensibility against potential ADA and other disability claims generally in light of stepped up enforcement by the EEOC and private plaintiffs changes to the ADA made by the ADA Amendments Act of 2008 (ADAAA) that makes it easier for employees to win ADA suits. To mitigate growing exposures to these claims, employers covered by the ADA and/or the Rehabilitation Act of 1973 should review and strengthen their existing hiring and other employment practices and documentation to strengthen their defensibility in the face of these new challenges.
If you need assistance responding an employee’s request for medical leave or other accommodations, or otherwise to review, update or defend your disability discrimination or other employment, compensation, benefits or other workforce, internal controls or risk management practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.
Other Resources
If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:
Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. When working with clients, Ms. Stamer combines a client-oriented approach with an extensive practical and technical knowledge of human resources, insurance, employee benefits, health care, privacy & security, corporate compliance and other legal matters to assist clients to formulate and administer pragmatic operational and risk management strategies and effective internal controls taking into account the financial, operational, political, legal and other realities confronting the client.
Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker who serves in the leadership of many professional and civil organizations. She regularly conducts management and other training on a wide range of workforce management, employee benefits, compensation, risk management internal controls, and other related matters for businesses, trade and professional associations and others. Her insights on human resources risk management matters appear in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. To request Ms. Stamer’s assistance, for information about arranging for Ms. Stamer to provide workshops and other training, to access other publications or resources or for more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer at via telephone at 469.767.8872 or via e-mail at cstamer@solutionslawyer.net or see CynthiaStamer.com.
If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. To unsubscribe, send an e-mail with “Unsubscribe” in the subject here. For important information concerning this communication see here.
Posted by Cynthia Marcotte Stamer 
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