Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The U.S. Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently provided additional guidance on its website regarding implementation of provisions of the Patient Protection and Affordable Care Act (PPACA), implementation of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This guidance, which is provided in the form of Frequently Asked Questions and responses, was prepared jointly by the Departments of Health and Human Services, Labor and the Treasury.

Some of the highlights from the guidance include the following:

• For preventive services, group health plans can steer individuals towards a particular high-value setting such as ambulatory care so long as the plan provides for a waiver of the co-payment for those individuals for whom it would be medically inappropriate to go to an ambulatory setting.
• Until regulations are issued by the Secretary of Labor, employers do not have to comply with the new automatic enrollment requirements in section 18A of the Fair Labor Standards Act. The Department of Labor intends to complete this rulemaking by 2014.
• While the PPACA generally prohibits distinctions based upon age in dependent coverage of children, distinctions based upon age that apply to all coverage under the plan, including coverage for employees and spouses as well as dependent children, are not prohibited.
• Under certain circumstances, issuers may screen applicants for eligibility for alternative coverage options before offering a child-only policy, provided this practice does not violate any state law.
• Small employers continue to be exempt from the MHPAEA requirements.
• Only employment-based wellness programs that are, or are part of, a group health plan are subject to the HIPAA nondiscrimination rules. Wellness programs that are not part of the group health plan may be covered by other federal or state nondiscrimination laws, but are not subject to the HIPAA nondiscrimination regulations.

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New York State employers who extend funeral or bereavement leave to employees after the death of a relative must, effective October 29, 2010, provide the same leave after the death of a same-sex committed partner. Although this amendment to the New York Civil Rights Law creates no obligation for employers who do not offer funeral or bereavement leave to any employees, it does require a change for the many New York employers who currently provide such leave to various groups of defined relatives, but not to same-sex committed partners. Those policies and related practices should be revised promptly to comply with the new law. Additionally, while the new law does not apply to employers outside New York State, they may want to consider similar revisions for business reasons.

The new law’s definition of a committed relationship as “a long-term relationship characterized by emotional and financial commitment and independence” arguably lacks clear boundaries. How long is long-term? How much proof can or should employers require to verify that every element of the definition has been met? These questions remain to be answered.

The exact revisions to funeral or bereavement leave policies likely will differ employer to employer. For example, some employers may decide to extend funeral or bereavement leave to all committed partners, not just same-sex ones. Other employers may prefer to extend funeral or bereavement leave as narrowly as possible to comply with the new law. Regardless of how employers amend their policies, however, all affected employers should do so immediately.

The end of a calendar year is often a good time for employers to focus on potential revisions to employee handbooks and other employment-related policies and procedures, in part because organizational changes are often implemented around the beginning of a calendar year. Thus, this is a good time to modify funeral or bereavement leave policies as mandated, as well as to consider revisions to other employment policies and practices.

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