Welcome to the Employment Law section of our webpage.  Employment law issues are complex, often subject to state and local law (not ordinarily covered on CLIC pages) as well as federal law.  This front page will reflect our most current information on employment law affecting educational institutions.

 

 

E-Verify Further Delay: The federal government again postponed E-Verify for federal contractors, until Sept. 8, 2009. See the Littler Employment Law Update dated June 2, 2009 by Jay Sumner.

 

ARRA Amendment and COBRA notices, 74 Federal Register 11971 (March 20, 2009)

This document announces the availability of the model health care continuation coverage notices required by ARRA.  These models are for use by group health plans and other entities that, pursuant to ARRA, must provide notices of the availability of premium reductions and additional election periods for health care continuation coverage.

 

Proposed Rules  Under the Genetic Information Nondiscrimination Act of 2008, 74 Fed. Reg. 9056 (March 2, 2009)

The Equal Employment Opportunity Commission is issuing a proposed rule that would implement Title
II of the Genetic Information Nondiscrimination Act of 2008 (``GINA'').  Congress enacted Title II of GINA to protect job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. Comments regarding this proposal must be received by the Commission on or before May 1, 2009. the proposed regulation makes clear that the term *employee* includes an applicant and a former employee.

GINA includes six terms not found in any of the other employment discrimination statutes that the Commission enforces.  The statute defines an individual's *family member* both by reference to ERISA section 701(f)(2) and as extending to the individual's fourth degree relatives. *Family medical history* is defined as information about the manifestation of disease or disorder in family members of the individual.  *Genetic information* is defined as  information about:

    (i) An individual's genetic tests;
    (ii) The genetic tests of that individual's family members;
    (iii) The manifestation of disease or disorder in family members of the individual (family medical history);
    (iv) An individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
    (v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual

and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

 

Genetic information does not include information about the sex or age of the individual or the sex or age of family members.

 

The proposed rule also includes definitions of genetic monitoring, genetic services and genetic tests.

*Genetic test* is defined as an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. An analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes is not a genetic test.  A medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites is not a genetic test.

Changes to COBRA in the ARRA
Section 3000 in Title III of the ARRA contains changes called Premium Assistance for COBRA benefits. A key resource on these changes is the  U.S. Department of Labor COBRA page. The DOL page links to the Conference Committee summary of the COBRA Premium Reduction Provision.
See also the Seyfarth Shaw memo titled COBRA Subsidy in Stimulus Package to Benefit Involuntariliy Terminated Employees.  Individuals who would have qualified as an Eligible Individual except that they had not elected COBRA as of February 17, 2009 have a special 60-day election period under the Act. The Stimulus Act provdies that eligible employees may receive 65% of the premium amount for COBRA coverage for up to 9 months, as long as the employee pays 35%. Employers will be reimbursed for their portion of the coverage either through a credit to payroll taxes or by seeking the money by a credit or refund from the Treasury Secretary. Employees are eligible for premium assistance if they are or were involuntarily terminated between September 1, 2008 and December 31, 2009, but cease to be eligible if they are eligible for other coverage, including Medicare or other employer coverage. This change in the law necessitates new notices to employees who were terminated after Sept. 1, 2008. Forms should be updated to reference the premium assistance, the extended election for certain terminated employees, and the obligation of the employee to provide notice of eligibility for other coverage. Employers are also directed to the IRS Q and A on the COBRA Health Insurance Continuation Premium Subsidy.

 

CHIP Reauthorization Act and Group Health Plan Enrollment, Notice and Disclosure Obligations
The sponsor of a group health plan must, commencing April 1, 2009 allow employee and dependents who are eligible but not enrolled for coverage to enroll in two additional circumstances: 

   1.   the employee’s or dependent’s CHIP or Medicaid coverage is terminated due to loss of eligibility  

   2.   the employee or dependent becomes eligible for a subsidy under Medicaid or CHIP.

The employee must request coverage within 60 days of the termination from assistance. Plan documents will have to be reviewed and amended. Notice requirements on this new rule will be developed by HSS by Feb. 4, 2010, and plans will have to distribute the notices during the first plan year beginning after the notices are first issued (so January 1, 2011 for calendar year plans). The penalty for non-compliance is $100 for failure to comply with the notice/disclosure requirements. The $100 penalty applies to each violation per participant or beneficiary. See the Seyfarth Shaw One Minute Memo (2/18/09) on this topic as well as the Ford and Harrison Legal Alert.