Looking Closer at Healthcare Reform – What does it mean for employers?

I have followed the news coverage of the Healthcare Reform package, the online blog coverage and I actually perused the legislation myself (here is a link but you will regret following it).  Why did I do that?  So I could compile the following non-exhaustive list of Healthcare Reform issues that may impact employers, apart from the more obvious employee benefit and insurance issues.  Here is what I have so far, in no particular order:

Reasonable Breaks for Nursing Mothers:

Section 4207 amends Section 7 of the FLSA to require an employer to provide reasonable break time (unpaid) for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express milk.  The employer must also provide a place, other than a bathroom, for the employee to express breast milk.  In cases of “undue hardship,” defined as causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business., an employer that employs less than 50 employees is not subject to the requirements. The requirements cannot preempt a state law that provides greater protections.

Information on state breastfeeding laws is linked here.

Anti-Discrimination Provisions

Section 1557 states that “[e]xcept as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an executive agency or any entity established under this title (or amendments).”  The enforcement mechanisms are the same as for the cited statutes. 

According to The New York Times, this provision is intended to prevent discrimination by insurers on the basis of sex but it is easy to envision the phrase “any health program or activity” being applied more broadly. 

Section 1558 also amends the FLSA to ensure that no employer shall discharge or in any manner discriminate against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment because the employee has received a tax credit or a subsidy under the Act.

New Whistleblower Protections

As reported by the Employment Law Group, which specializes in representing whistleblowers, the Healthcare Reform legislation creates several new whistleblower protections, including:

Section 1558:  Health care worker whistleblower protections added to the Fair Labor Standards Act.  Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill.  The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill.   Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies.  Accordingly, Section 1558 will likely protect a broad range of disclosures.

Section 6703(b)(3): Protections for employees of federally funded long-term care facilities.  Long-term care facilities that receive more than $10,000 in federal funding in the preceding year must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency.  Failure to report a suspected crime can expose an employee, manager, or contractor to civil fines of up to $200,000.  A long-term care facility is prohibited from engaging in retaliation against an employee “because of lawful acts done by the employee.”  Facilities violating the anti-retaliation provision may be subject to a fine of up to $200,000 and exclusion from federal funds for up to two years.

Section 6105:  Implementation of standardized complaint forms for nursing homes and prohibition against retaliation.  Section 6105 requires nursing homes to implement a standardized complaint form and requires each state to develop a complaint resolution process to track and investigate complaints and to ensure that complainants are not subjected to retaliation. 

That is the list so far but I will update this post as needed.  Drop me a line if you see any other potential employment law issues in the legislation. 



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