Tag Archives: ACA

November 2013
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Employment Law

US Supreme Court Agrees To Hear ACA Contraception Cases

The ACA’s contraceptive mandate has been challenged in several lawsuits across the country since the ACA became law. I have written about a few of them in this blog.  Today, the U.S. Supreme Court announced it would hear two cases challenging that mandate—Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.  The issue in both cases is whether companies may decline to provide contraceptive coverage to employees based on the religious beliefs of the companies’ owners.  The principal argument in those cases is that the contraceptive mandate violates the Religious Freedom Restoration Act.

Stay tuned to see how the Supreme Court decides this controversial issue.

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November 2013
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Employment Law

6th Circuit Rejects Religious Challenge To ACA

Recently the 6th Circuit denied an appeal by Eden Foods, Inc. (“Eden Foods”) that claimed the Affordable Care Act’s (“ACA”) contraception mandate violated the Religious Freedom Restoration Act.  Michael Potter, a Roman Catholic, and the sole owner and shareholder of Eden Foods, filed suit against the federal government claiming that the contraception mandate would interfere with his and his company’s exercise of religion.

The Court held that a secular, for profit company is not entitled to protection under the Religious Freedom Restoration Act.  The three judge panel followed the lead of another 6th Circuit Panel’s September 17th ruling upholding the denial of an injunction against the contraception mandate.  That case was filed by auto parts manufacturer Autocam Corp.  The Autocam opinion concluded that the right of free exercise of religion never extends to secular, for profit companies.

In contrast to these decisions by the 6th Circuit the Seventh Circuit Court of Appeals recently held that the Religious Freedom Restoration Act applies to individuals and secular organizations.

The U.S. Supreme Court may have to resolve this issue.  Stay tuned!

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October 2013
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Employment Law

Who Is The Employer of a Temporary Employee?

Do you use temporary employees in your business?  If you answered that question “yes” then you need to know that your company may be considered a “joint employer” of those employees.

If your company exercises the right to control the temporary employees your company  and the company providing the temporary employees (“temp service”) are joint employers of the temporary employees.

Factors to consider in determining who has  the right to control include:

1.who controls when the employees arrive and leave;

2. who controls what the employees do and how they do it;

3. whose policies and procedures govern the employees;

4. who provides the tools and equipment; and

5.  who pays the employees and provides their benefits.

The most significant legal implication of being a joint employer is that temporary employees can pursue a claim against you and the “temp service” for any  discrimination, harassment or retaliation they claim to experience while performing an assignment for your company.  Furthermore, under the Affordable Care Act (ACA) if you have the right to control the temporary employees you use you will have to count them in determining whether you meet the ACA 50 employee threshold.

Temporary employees can provide a valuable service to your business.  But if you use them know that the legal ramifications of doing so may be far more permanent.

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September 2013
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Employment Law

ACA Marketplace Notice Must Be Sent By October 1

The Affordable Care Act (ACA) requires all employers that are subject to the Fair Labor Standards Act (“FLSA”) to provide written notice of the health insurance  “Marketplace” to all employees on or before October 1, 2013.  The notice must be provided  even if the employer will not have to provide coverage under the ACA.

Employers are generally subject to the FLSA if they are engaged in interstate commerce or have an annual business volume of at least $500,000.   If your business is covered by the FLSA and you have not yet sent the Marketplace Notice, make sure you do so no later than October 1st.   A model notice can be obtained from the Department of Labor’s website.

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July 2013
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Employment Law

Obama Puts the Brakes on Obamacare

Late yesterday the Department of Treasury announced that the Obama administration will provide employers that are covered by the Affordable Care Act an additional year before they are required to provide health care coverage to “full time employees” or pay a penalty.  Currently, the ACA defines full time employees as those employees who work an average of 30 hours or more per week.  This 1 year extension means employers now have until January 1, 2015 before they will have to “pay or play” under the ACA.

The extension is based on the complexity of the requirements and the need for more time to implement them effectively.  It will be interesting to see whether any other changes to the ACA, such as a change in the definition of full time employees, occurs before January 1, 2015.  Stay tuned for further updates!

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March 2013
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Employment Law

Owner of Domino’s Escapes ACA Contraception Mandate

A Michigan federal judge on Wednesday exempted the founder of Domino’s Pizza from implementing the Affordable Care Act’s contraception mandate at an office complex he owns, saying he has shown that abiding by the health law would “substantially burden” his ability to exercise his religion.

U.S. District Judge Lawrence P. Zatkoff granted a preliminary injunction on behalf of Thomas Monaghan and his Domino’s Farm Corp. complex located in Ann Arbor, Mich. Monaghan, a Catholic, said providing employees coverage for contraception and abortion is immoral and at odds with his religious beliefs.

Judge Zatkoff’s order prevents the U.S. Department of Health and Human Services from enforcing the contraception mandate at Domino’s Farm. HHS failed to show that having Monaghan conform to the law served a compelling public interest that outweighed the harm caused by having him violate his religion, the ruling said.

This year the governement has exempted many religious organizations from ACA’s contraception mandate.  It will be interesting to see how many other private businesses are able to convince a court that this exemption should also apply to them based on their religious beliefs.

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February 2013
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Employment Law

ACA Retaliation

Most “large employers” ( those employers with at least 50 employees working an average of at least 30 hours a week)  are very aware that the Affordable Care Act (ACA) imposes numerous deadlines and commitments for them  in 2013 and 2014.  But you may not know that the ACA also prohibits retaliation against employees who make complaints that the ACA has been violated.  The US Department of Labor issued an interim rule last week which provides guidance on this issue.

Workers who give their employer, the federal government or a state attorney general information about acts or omissions that they reasonably believe violate Title I of the ACA — which prohibits denying insurance because of pre-existing conditions or using factors like medical history to set premium rates — will be protected from retaliation under Section 18C.

The ACA also prohibits retaliation against employees who receive health insurance tax credits that could translate to a tax penalty for certain large employers.

Retaliation complaints under Section 18C have to be filed within 180 days of when the alleged violation occurs, which means when the retaliatory decision has been made and communicated to the worker.  The limitations clock starts ticking when the employee is aware or reasonably should be aware of that decision, OSHA said, though the time for filing a complaint can be tolled.

Complaints under Section 18C don’t have to be written down, or be in English. An oral complaint can suffice, and if the complainant can’t file in English, any language will do. As long as the employee consents, any person can file a complaint on a worker’s behalf under the rule.

The take away for employers:  If an employee complains that you have violated the ACA take the complaint seriously, investigate it, and make sure the employee is not retaliated against in any way.

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February 2013
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Employment Law

Deadlines and Commitments for Employers under the ACA

Last week I had the privilege of speaking to a group here in Knoxville on the deadlines and commitments employers face under the Affordable Care Act or ACA.  Scott Insurance hosted the event and did a wonderful job.

A copy of my presentation can be found here. ACA Presentation

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December 2012
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Employment Law

Domino’s Challenges the ACA

This week Domino’s did more than deliver pizzas.  On Monday Domino’s and its founder sued several federal agencies and officials in Michigan federal court alleging the contraception mandate of the Affordable Care Act (ACA) is unconstitutional.

The company’s founder, Thomas Monaghan, contends the contraception mandate violates his strongly held Catholic religious beliefs.  Previously, Domino’s had designed its health insurance plan to exclude contraception, sterilization and abortion as reimbursable expenses.

Monaghan contends the contraception mandate of the ACA violates the US Constitution’s protection of freedom of religion and also violates the Religious Restoration Act.  He and the company seek an injunction barring enforcement of the mandate, costs and attorney’s fees.

Stay tuned.

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