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SHRM Newsletter: Health Care Reform

04/16/2010

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This is Utah SHRM Legal-mail no. 2010-5 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

-  WHAT’S UP WITH HEALTH CARE REFORM?
-  FLSA NOW REQUIRES BREASTFEEDING BREAKS/PLACE
-  SALT LAKE CITY SEXUAL ORIENTATION ORDINANCE TAKES EFFECT

WHAT’S UP WITH HEALTH CARE REFORM?  With all the dust clearing, just how, exactly, does the new health care reform law Congress recently passed impact employers?  I have seen several good summaries on the internet (see links below to a couple of them).  The new law attempts to provide coverage for uninsured Americans without drastically impacting Americans who already have coverage through their employers.  But there are some impacts to employers highlighted here briefly because the new law: (1) provides reimbursements for certain retiree health benefits through 2014; (2) allows tax credits to small employers (with fewer than 25 employees) who provide employees with insurance; (3) effective six months after passage, mandates various kinds of coverage (e.g. coverage of dependents up to age 26) and prohibits pre-existing condition exclusions and lifetime dollar limits of coverage; (4) like existing rules on pension and retirement funds, prohibits discrimination in favor of highly-compensated employees; (5) beginning in 2014, mandates that larger employers (with 50 or more full time employees) provide coverage to employees or pay a penalty of about $2,000 per year for each full time employee (excluding the first 30 full time employees); (6) mandates that waiting periods to join plans be limited to no more than 90 days; (7) by about 2013 mandates that employers with 200 or more employees automatically enroll employees in the company health plan and allowing opt-outs only if a penalty is paid or other coverage obtained; and (8) beginning in 2018 imposes taxes on certain high value or “Cadillac” health plans; (9) the new law does not require employers to provide health coverage to part-time employees but part-timers will impact the extent to which small businesses will be eligible for government subsidies to provide health coverage and whether certain provisions of the new law will apply to employers; (10) beginning in 2011 requires W-2 reporting (for informational purposes only) of the value of benefits provided; and (11) beginning in 2013, limits employee contributions to health flexible spending accounts to $2,500; (12) imposes many specific coverage and related requirements that will impact how insurers and self-funded plans deliver and administer their plans and benefits. For more information, check out the following links:

http://www.jacksonlewis.com/legalupdates/article.cfm?aid=2013
http://www.shrm.org/LegalIssues/FederalResources/Pages/Deadlines.aspx
http://www.shrm.org/LegalIssues/FederalResources/Pages/ReformMyths.aspx
http://www.shrm.org/Publications/HRNews/Pages/HealthProfoundEffect.aspx

(Thanks to Jones Waldo employment benefits and tax attorney Bruce Babcock for contributing to this analysis.)

FLSA NOW REQUIRES BREASTFEEDING BREAKS/PLACE:  The new health care reform law also includes a revision to the Fair Labor Standards Act (FLSA) that impacts how employers treat breastfeeding mothers.  The new law requires that an employer provide reasonable breaks (no limit is set on the number of breaks) for an employee to express breast milk for her nursing child for one year after the child’s birth.  The employer must also provide a place, other than a bathroom, shielded from view and intrusion (by the public or co-workers) that can be used for this purpose.  The breaks need not be paid time unless required by state law or perhaps by an employee’s exempt status. Employers with fewer than fifty (50) employees are exempt from these requirements if they would impose an undue hardship by causing significant difficulty or expense based on the employer’s size, resources and business structure.  The United States Department of Labor likely will issue regulations to implement this new rule.  About half of the states already have in place rules requiring the accommodation of nursing mothers.

SALT LAKE CITY SEXUAL ORIENTATION ORDINANCE TAKES EFFECT:  Last Fall, the Salt Lake City Council prohibited private employers (15 or more employees) within the SLC limits from discriminating in employment against “otherwise qualified” persons (applicants and employees) based on sexual orientation or gender identity.  The ordinance took effect on April 2, 2010.  State entities (except SLC), religious organizations and “expressive organizations” are exempted from the ordinance. “Sexual Orientation” is defined as “a person’s actual or perceived orientation as heterosexual, homosexual, or bisexual.” “Gender Identity” is defined as “a person’s actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person’s sex at birth.” The phrase “Otherwise Qualified” means “a person who possesses the following required by an employer for any particular job, job classification, or position: 1. education; 2. training; 3. ability; 4. moral character; 5. integrity; 6. disposition to work; 7. adherence to reasonable rules and regulations; and 8. other job related qualifications required by an employer.”  The ordinance does not create a cause of action or claims for individual damages, but rather creates an administrative process that could result in employment discrimination claims brought before SLC Justice Courts.  The new ordinance allows for fines up to $1,000 per offense.  The ordinance also prohibits retaliation against persons raising complaints.  Covered employers now should be in compliance.  At a minimum, covered employers should revise their employee handbooks, policies, practices, training materials, etc. to reflect these new protected employment classifications and the other requirements of the ordinance.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com
 

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.