Wyatt Employment Law Report

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The Impact of Justice Scalia’s Death on This Term’s Employment-Related Cases

By Sean G. Williamson

Antonin_Scalia_Official_SCOTUS_PortraitThe recent and unexpected death of Justice Antonin Scalia at a West Texas ranch may affect the decisions in several employment-related cases pending before the U.S. Supreme Court this term.  The nine-member body—now reduced to eight—faces a variety of controversial issues predicted to divide the Court along ideological lines.  Prior to Scalia’s passing, the Court generally could be described as containing four conservatives and four liberals, with Justice Anthony Kennedy providing the swing vote.  Without Scalia, the influence of the conservative wing is weakened.  A 4-4 decision will result if Kennedy joins the remaining conservatives in any vote opposite the perceived liberal justices.

When the Court is split 4-4, the lower court’s decision stands, and no national precedent is set.  Moreover, any circuit split the Court might have wished to resolve will remain unchanged.  Rather than render a 4-4 decision, the Court could order the case to be reheard next term—when Continue reading

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Supreme Court Upholds Affordable Care Act Subsidies

By Sherry P. Porter

Supreme Court 2Today, the United States Supreme Court upheld subsidies for individuals who purchase health care insurance through all health care exchanges regardless of whether the exchange was established by a state or the federal government.  The case, King v. Burwell, is the latest ruling in a number of challenges to the Affordable Care Act (ACA).  In the 6-3 ruling, the Court stated that this ruling will prevent the destabilization of the individual health insurance market into a death spiral.

What does this mean to the average American?  If you purchase health insurance from an exchange and meet the eligibility requirements, then you may continue to receive subsidies to help pay for that coverage.  It does not matter that you are in a state exchange or a federal exchange.  So, essentially status quo.

What does this mean to the average employer?  The subsidies available through the exchanges are the triggers for the penalties that may be imposed upon certain large employers if that employer either fails to offer coverage to its full time employees or offers coverage that is not affordable or does not provide minimum value.  Had the subsidies been taken away, then employers in states with federal exchanges would likely have not been subject to the penalties because in order to be subject to a penalty, an employee would have to purchase insurance on an exchange AND receive a subsidy.  Subsidies are not available to employees if they have an appropriate offer of coverage from an employer.  So, if you are a large employer and were hoping that you would not be subject to the penalties under the ACA, you should review your policies and procedures to ensure compliance with the ACA.

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The EEOC’s New Proposed Rule: Long-Awaited Workplace Wellness Regulations

By Leila G. O’Carra

Last year, the EEOC sued three different employers (Honeywell, Orion and Flambeau),1 claiming that the companies’ workplace wellness programs violated the Americans with Disabilities Act. Except for the EEOC’s court papers in these cases, employers have had little guidance on the ADA’s requirements for wellness programs. On April 20, 2015, the EEOC finally revealed its position.

worksite wellnessThe EEOC’s proposed rule applies to employers with 15 or more employees that offer workplace wellness programs that include disability-related inquiries or medical exams. According to the proposed rule, covered wellness programs must be reasonably designed to promote health or prevent disease. Further, covered wellness programs must be voluntary. That is, the employer: (1) may not require employees to participate; (2) may not deny coverage under any of its group health plans for non-participation (or limit benefits except as specifically allowed in the regulation); (3) may not take adverse employment action or retaliate against employees who do not participate; and (4) if the program is part of a group health plan, must provide a detailed notice with information about the program. The notice must be reasonably likely to be understood by Continue reading

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Employer Mandate Delay & Phase-In of Employer Shared Responsibility Payment Provisions

By: Douglas L. McSwain

The employer mandate under the Affordable Care Act (ACA) has been held up again, much to the relief of many employers. While some may question the validity of the hold up, the ACA’s enforcers have announced they will provide employers transitional relief by permitting the mandate to be phased-in with various stages for different-sized employers. As a result, reporting requirements to the IRS will be affected. Furthermore, certain industries will have special rules applied, and employers need to be aware of the affected industries. Here’s a synopsis of the Obama Administration’s latest “final rule” provisions pertaining to the employer mandate.

Business Size Matters: 

(A) Employers with fewer than 50 full-time equivalent employees still have no “mandate” to provide health coverage to employees. Nothing’s changed here, and presumably tax credits for employers with 25 or fewer employees are still available.

(B) Employers with 50 up to 99 full-time equivalent employees do not have to come into compliance with the employer “mandate” until 2016 or face a tax penalty. This amounts to another year’s delay in the employer mandate for these employers. This will give employers of this size another year to follow and track the hours of their full-time and part-time employees to be better prepared as to how to treat them in 2016 when compliance will be required. Also, this new deadline aligns with the fully functional SHOP exchange rollout. SHOP exchanges may be limited to employers with only 50 or fewer employees if states so choose in 2014-2015, but SHOP exchanges may be expanded to employers with up to 100 employees in 2016. Kentucky’s SHOP exchange is currently limited to employers with 50 or fewer employees, but is expected to expand and be available to employers with up to 100 employees in 2016. So, the Obama Administration’s delay of the employer mandate for employers with fewer than 100 employees for another year means employers of this size may be able to take advantage of Kentucky’s expected-to-expand SHOP exchange in 2016. This should facilitate compliance with the mandate in 2016 by reducing employers’ administrative costs in providing coverage.

(C) Employers with more than 100 employees have been provided phase-in relief during 2015. During 2015, employers of this size need only offer health coverage to 70% or more of their employees to avoid a tax penalty for non-compliance. This percent will still rise to 95% in 2016 as originally required in last year’s regulations; however, the additional year to ramp up toward making the offer of health coverage to only 70% in 2015 should provide employers extra maneuvering room to adjust. Furthermore, while the ACA requires that the offer be made to an employee and his or her “dependents,” during 2015 employers of this size need only make the offer to 70% of the employees. Dependent coverage need not be offered during this first transition year so long as employers are taking steps to offer dependent coverage in 2016. The 70% threshold to whom coverage must be offered during 2015 provides employers of this size “room to make mistakes.” Many employers have been concerned they would not be able to accurately track employees’ full-time versus part-time status, and these transitional rules for 2015 should provide a lot of “room to err.”

Particular Rules for Specific Businesses:

Other points of note in the new changes to the employer mandate include specific rules applicable to certain types of businesses. For example, “volunteers” in bona fide volunteer capacities with governmental agencies or tax-exempt entities such as volunteer firefighters and emergency responders will not have to have their volunteer hours counted, nor be considered full-time employees. Furthermore, teachers for educational systems will not necessarily be treated as part-time just because they take time off or have only limited schedules during summers. “Seasonal” employee rules have been relaxed to account for some employees working seasonal positions for up to six months. Student-work study programs have been defined out of inclusion for purposes of determining full-time employment. “Adjunct” or part-time faculty in higher education institutions are given a “bright line” approach for the counting of hours of such personnel. Generally, for every hour of in-classroom instruction, “adjunct” faculty are to be credited with an additional 2.25 hours of out-of-classroom work hours. This means that if “adjunct” faculty teach more than a 12 hour semester load, they will be deemed full-time for purposes of being included in the calculation of full-time equivalency under the employer mandate.

Full-Time Employee Status Determinations: 

The newly released “final rules” provide some clarifications on the application of the look-back method of measuring full-time employee status. They also provide a new, alternative monthly method of determining “full-time” status. This alternative method provides some relaxation of the original rules, and employers concerned with miscalculation or with employees who are “on the line” of being full-time (i.e., average right around 30 hours per week) may find this alternative a little more forgiving.

Other Phase-In Provisions:

Employers on the cusp of going over the 100-employee threshold in 2014, and thus potentially being subject to the ACA’s employer mandate and subject to a potential tax penalty for the first time in 2015, may use the last 6 months of 2014 instead of the entire year to calculate whether they had at least 100 full-time equivalent employees. Employers in 2014 may, on a one-time basis, also use a measurement period of 6 months even with respect to a 12-month stability period for variable hour employees. Finally, employers with plan years that do not align with the end of 2014 may begin compliance at the start of their plan years in 2015 rather than at the beginning of 2015.

These are all important changes of which employers need to be aware. A link to the IRS website explaining in further detail the ACA’s employer mandate and “Employer Shared Responsibility Payment is here: http://www.irs.gov/uac/Newsroom/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act

For more information in the Louisville, KY; Lexington, KY or New Albany, IN areas, contact Doug McSwain.

For more information in the Memphis, TN; Nashville, TN or Jackson, MS areas, contact Elizabeth O’Keeffe or Charles Key.

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Religious Employers Challenge Affordable Care Act Mandate

By Leila G. O’Carra

Take a look at my article on “Religious Employers Challenge ACA Mandate” which was published in Business Lexington’s on-line weekly email today:


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“Affordable Care Act” Update

By Mark C. Blackwell

Group health plans that are in place as of March 23, 2010 are “grandfathered” and many of the new health plan mandates applicable to new plans either do not apply, or do not apply until future years.  However, a number of new rules apply effective the first plan year that starts after Sept. 23, 2010, even if the group plan is grandfathered.  The primary rules that apply to grandfathered plans on January 1, 2011 (for calendar year plans) include:

 Extension of Dependent Coverage.  If the plan covers dependents, coverage for adult children is extended until age 26 (i.e., through age 25), unless the child is eligible to enroll in another eligible employer-sponsored health plan (until 2014).

 Prohibition on Lifetime Limits.  Applies to all group health plans.  An individual whose coverage ended due to a lifetime limit is eligible to reenroll when the new rule takes effect.

 Prohibition on Annual Limits.  Applies to all group health plans, subject to (i) a transition rule and (ii) possible “waiver”  where the transitional rule “would result in a significant decrease in access to benefits” or “would significantly increase premiums.”  The “transition rule” permits an annual limit no lower than $750,000 for 2011 plan year; $1.25 million for 2012 plan year; and $2 million for 2013 plan year.  The “waiver” is available by application to HHS and must be made no later than 30 days before the start of the plan year.  It is primarily available to so-called “limited benefit” plans or “mini med” plans that are made available to part-time employees, seasonal workers, etc.

 Pre-existing Condition Exclusion (under age 19).  Applies to enrollees under age 19; applies to all covered individuals effective 2014.

 Prohibition on Rescissions.  Coverage cannot be rescinded after enrollment, except for fraud or intentional misrepresentation of a material fact.