The Administrative Task Force plays a critical role in keeping our OSHA practice current and vibrant. We follow developments daily and we work together to analyze the impact that proposed and actual changes will have on the law in general and specifically on our client’s industries. Employers today face an unprecedented range of workplace safety and OSHA legal issues as government increases worker safety and health regulation and demands meticulous reviews by its OSHA inspection force.
Despite the on-going litigation and Republican opposition in Congress, the Administration continues to work on implementing the Patient Protection and Affordability Care Act of 2010, as amended (the “Act”). Set out below is a brief review of the following important developments from the past 12 months.
The Obama administration continues to move forward on implementing the Patient Protection and Affordable Care Act of 2010, as amended (the "Health Care Reform Act"), as it has recently issued additional guidance on the grandfather rules for group health plans and the new Form W-2 rules for reporting the cost of employee group health coverage. Of note, the guidance reaffirms that the W-2 reporting of group health coverage costs will not be required until 2012, which means that any such reporting for 2011 will remain optional. The guidance also provides some important clarification on the grandfather rules. On a separate note, legislation repealing the employer "free choice" voucher requirements (which were to go into effect in 2014) has just been enacted.
Yesterday, United States District Judge Henry E. Hudson (Eastern District of Virginia) found unconstitutional the Patient Protection and Affordable Care Act (PPACA) provision which requires most uninsured Americans to obtain coverage or pay a penalty. Read Judge Hudson’s Memorandum Opinion.
Virginia Attorney General Kenneth T. Cuccinelli sued Health and Human Services Secretary Kathleen Sebelius, in her official capacity, alleging that the PPACA conflicts with Virginia law and that the Act’s purchase mandate is unconstitutional. This lawsuit is similar to the lawsuit led by Florida Attorney General Bill McCollum in which twenty other states are participating in Florida. A hearing on the States’ motion for summary judgment in that case is scheduled for December 16, 2010.
The Act’s Minimum Essential Coverage Provision (Section 1501 of the PPACA) requires that every United States citizen, other than those specifically excepted, maintain a minimum level of health insurance coverage beginning in 2014. According to Section 1501, the failure to comply will result in a penalty on a taxpayer’s annual tax return.
Judge Hudson opined—in connection with partially granting summary judgment to the Commonwealth of Virginia—that the requirement in Section 1501 of the PPACA that individual citizens purchase private health insurance is unconstitutional and exceeds Congress’s commerce-clause power. According to Judge Hudson, Section 1501 of the PPACA constituted a “unchecked expansion of congressional power” that would “invite unbridled exercise of federal police powers.” Judge Hudson also found unavailing the federal government’s argument that the purchase mandate is a valid exercise of Congress’s taxation power. The Judge observed that the generation of revenue as a legislative objective was merely a “transparent afterthought.” Judge Hudson severed Section 1501’s purchase mandate from the Act but declined to grant Virginia’s request for injunctive relief pending appellate review. According to the Judge, the likelihood of irreparable harm—a necessary element for issuance of an injunction—was minimal considering that the purchase mandate at issue does not take effect until 2013.
The Virginia Attorney General’s Office is seeking to “fast track” the case to the United States Supreme Court. This would require the Department of Justice to join with the Virginia Attorney General’s office in waiving a hearing in the Fourth Circuit Court of Appeals, allowing the case to move immediately to the Supreme Court for resolution.
This case represents the first case involving a successful constitutional challenge to the PPACA.
Employer’s Take Away
This decision will not have an immediate impact on employers. However, the decision adds to the growing uncertainty facing employers regarding the effect of PPACA on health insurance-related planning and budgeting. We will continue to monitor PPACA-related developments in order to effectively guide employers through this field of uncertainty.
The much-publicized health care reform act contains a particular provision that has not received much media exposure, but which may require employers to take immediate action. The 2010 Patient Protection and Affordable Care Act (“PPACA”), signed into law by President Obama on March 23, amends the Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable break time” for nursing mothers to express breast milk.
Section 4207 of the new law, titled “Reasonable Break Time for Nursing Mothers,” is effective immediately and requires that employers provide, for one year after a child’s birth, reasonable break time whenever a nursing employee has a need to express milk. Though employers are not required to pay employees during this break time, “reasonable break time” is not defined in the amendment, nor is there any specified limit on the number of breaks that can be taken per day.
Employers must also provide nursing mothers with a place in which to express milk that is shielded from view and free from intrusion by coworkers and the public. The amendment explicitly states that the provided place cannot be a bathroom.
While the new amendment applies to all employers covered by the FLSA, there is a possible exemption for businesses with less than 50 employees. If such small businesses can show that providing nursing breaks or a designated place to express milk would impose an “undue hardship,” such as causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business, the new requirements do not apply.
Although many states already have statutes requiring breaks for nursing mothers, this is the first federal law to impose such a requirement. However, the amendment does provide that if a state law has greater protections for nursing mothers than the new federal law, then employers should continue to follow the state law requirements.
Until the Department of Labor issues regulations regarding the amendment, employers should aim to avoid potential claims under the new federal law. Employers that have not already done so should consider what private locations they can make available to nursing mothers and should also communicate with employees who request nursing breaks about the expected duration and frequency of such breaks in order to prevent misunderstandings and problems.
President Obama recently signed into law both the Patient Protection and Affordable Care Act (the “PPACA”) and the Health Care and Education Reconciliation Act of 2010, which amends the PPACA. These two Acts will significantly change the health care landscape in the United States.
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