Orion Energy: Cautionary Tale About Wellness Programs

Manitowoc, Wis.-based Orion Energy Systems violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called "wellness program," which was not voluntary, and then by firing the employee when she objected to the program, the Equal Employment Opportunity Commission (EEOC) charges in a lawsuit it filed.

In its lawsuit filed in Green Bay, Wis., the federal agency contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries.  When employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert.  Shortly thereafter, Orion fired Schobert.  

The EEOC maintains that Orion's wellness program violated the Americans with Disabilities Act (ADA) as it was applied to Schobert, and that Orion retaliated against Schobert because of her good-faith objections to the wellness program.  The EEOC further asserts that Orion interfered with Schobert's exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries.

The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process.  The case, (EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019) was filed in U.S. District Court for the Eastern District of Wisconsin, Green Bay Division, and is assigned to U.S. District Judge Chief Judge William C. Griesbach.

This most recent lawsuit is the EEOC's first to directly challenge a wellness program under the ADA.  Earlier hearings by the EEOC on wellness programs revealed that a majority of employers now offer some sort of wellness program — 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care. 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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MSHA Announces $8 Million in Mine Safety and Health Grants

The Department of Labor's Mine Safety and Health Administration (MSHA) announced today that it has allocated $8,348,423 in health and safety training grants for 47 states and the Navajo Nation in fiscal year 2014.

Grantees will use the funds to provide federally mandated training to miners. The grants cover training and retraining of miners working at surface and underground coal and metal and nonmetal mines, including miners engaged in shell dredging or employed at surface stone, sand and gravel mining operations.

Grants were awarded based on applications from states, and they are administered by state mine inspectors' offices, state departments of labor, and state-supported colleges and universities. Each recipient tailors the program to the needs of its mines and miners — including mining conditions and hazards miners may encounter — and also provides technical assistance.

The state grants program was authorized by the Federal Coal Mine Health and Safety Act of 1969. States first received funding to provide health and safety training to miners in 1971.

"These state grants support the safety and health mission contained in the Mine Act," said Joseph A. Main, assistant secretary of labor for mine safety and health. "These federal funds will enable miners to better prepare for the task at hand and arm them with the proper knowledge to avoid accidents and injuries."

In addition to health and safety training, some states use these grants to support their mine emergency response efforts and other Mine Act functions.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Issues Guidance on Contractors’ Nondiscrimination Obligations

The Department of Labor (DOL) has issued guidance to clarify and implement Executive Order 11246, which bans discrimination on the basis of gender identify and transgender status for all businesses doing contract or subcontract work with the federal government.

Both the executive order and yesterday's guidance follow on the heels of 2012 discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), Macy v. Holder, which established that both gender identity and transgender status fall under the sex discrimination protection of Title VII of the 1964 Civil Rights Act.

"Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one," Labor Secretary.Tom Perez in announcing the upcoming guidance in June.

The guidance will be enforced by the Office of Federal Contract Compliance Programs (OFCCP), a wing of the DOL. OFCCP vows it will fully investigate and seek to remedy all instances of sex discrimination that occur because of an individual’s gender identity or transgender status. The directive explains that, when investigating such instances of potential discrimination, OFCCP adheres to the existing Title VII framework for proving sex discrimination, as outlined in OFCCP’s Federal Contract Compliance Manual.

To implement this and other federal discrimination policies at your place of business, please refer to Personnel Concepts' informative and easy-to-follow Federal Harassment in the Workplace Program.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Obamacare Medical Device Tax Slipping Through IRS’s Fingers

A 2.3 percent excise tax on medical devices that took effect in January has failed to live up to expectations, and an audit blames the Internal Revenue Service (IRS) for botching its implementation.

A report by the Treasury Inspector General for Tax Administration (TIGTA) says the tax has so far brought in only $913.4 million out of a projected $1.2 billion for the first two quarters of 2014. J. Russell George, the inspector general, says the IRS needs to do a better job of identifying medical device manufacturers and then insuring that they pay the excise tax on all sales of medical devices.

The IRS blames this — and all its other woes — on insufficient funding from Congress, which cut the agency's budget from $12 billion in 2013 to $11.2 billion this year. Some in the House of Representatives counter that, while the IRS shouts underfunding, it still somehow is able to find $63 million to award in bonuses.

For complete information on the all provisions of health care reform, please get a copy of our Affordable Care Act Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Watchdog Groups Claim Insurance Companies Still Discriminating Against the Sick

Several watchdog groups have written to Health and Human Services (HHS) Secretary Sylvia Mathews Burwell to protest that the health insurance industry is still discriminating against the sick in terms of harder access to care and onerous pricing for medicines, despite the antidiscrimination provision of the Affordable Care Act (ACA).

Among the 300 groups writing — all supporters of the ACA — were the AIDS Institute, the American Lung Association, Easter Seals, the Epilepsy Foundation, the Leukemia & Lymphoma Society, the National Alliance on Mental Illness, the National Kidney Foundation and United Cerebral Palsy. The groups' plea for help is being enjoined by some state insurance commissioners.

The biggest concern, along with the tighter selection of physicians and facilities on most plans, is the insurance industry's habit of placing certain medications on a "high-price tier," in order to shift obligations to the patient to cover the difference on what are deemed to be "expensive" diseases, which can be $2,000 or more on certain medications.

America's Health Insurance Plans, the industry's trade group, says consumers have choices of different plans, some of which offer bigger networks and bigger coverage but at a higher premium.

HHS has promised a reply to the groups' letter, but it has not arrived yet.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Prove-It-Or-Lose-It Notices Sent to Suspect Obamacare Policyholders

The Department of Health and Human Services (HHS) this week sent out 310,000 demands to Obamacare policyholders to verify their citizenship/immigration eligibility. The prove-it-or-lose-it notices followed failed previous attempts to obtain verification from the individuals.

The HHS set a deadline of Sept. 5, 2014. If no verification of eligibliity is supplied by that time, the policies will be suspended on Sept. 30.

"We want as many consumers as possible to remain enrolled in marketplace coverage, so we are giving these individuals a last chance to submit their documents before their coverage through the marketplace will end," said Centers for Medicare and Medicaid Services (CMS) Administrator Marilyn Tavenner in a statement.

In all, some 970,000 health insurance policies sold under the Affordable Care Act (ACA) had citizenship and immigration data issues. About half have been resolved, and 210,000 are still in progress. The rest have been issued notices demanding verification.

This is just the tip of the iceberg. Later, HHS will follow up on policyholders with income data problems who are currently being subsidized but whose eligibility has not yet been established.

To establish your ACA responsibilities, whether you run a small-, medium- or large-scale operation, please refer to our comprehensive Affordable Care Act Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Obamacare Premiums to Rise Average of 7.5 Percent for 2015, Research Shows

A preliminary analysis by PricewaterhouseCoopers' Health Research Institute predicts that premiums on the Affordable Care Act (ACA) marketplaces will rise an average of 7.5 percent for 2015 policies when open enrollment commences Nov. 15.

State by state, a wide gap exists between highest and lowest, with Arkansas at top with a predicted 50 percent increase in premiums, and Arizona below the bottom with a 23 percent decrease in store for certain consumers.

The Health Research Institute is basing its prediction on rate filings by insurance companies in 29 states and the District of Columbia, which so far average 8.2 percent in rate hikes, but the entry of new insurance companies and other competitive factors should bring that average down a bit in looking forward. Earlier, Avalere Health estimated an 8 percent premium hikes based on filings in nine states.

Click here to VIEW STATE-BY-STATE RATE FILINGS.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Elon Musk’s SpaceX Sued Under WARN Act for No-Advance-Notice Layoffs

Laid-off employees at the Space Exploration Technologies Corp. (SpaceX) in Hawthorne, Calif., are taking the Elon Musk-owned company to court over some 200-400 layoffs conducted on or about July 21.

The vehicle for the lawsuit is the Worker Adjustment and Retraining Notification (WARN) Act, which mandates that companies with 100 or more employees within a 75-mile radius must give 60-days advance notice when conducting mass layoffs. A mass layoff is defined as 50-499 employees within a 30-day period if they make up at least 33 percent of the employer's active workforce. Otherwise, the standard is 500 employees.

According to President Gwynne Shotwell, SpaceX had 3,800 employees in October 2013, but the website now lists only 3,000 employees.

The law firm of Feldman Browne & Olivares filed the suit for former SpaceX technicians Bobby Lee and Bron Gatling and is now seeking class action status to cover the other laid-off employees.

To understand better how the WARN Act may or may not apply to your business, please get a copy of our HR Desk Reference.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Obamacare Fallout: Oracle Sues Oregon Over Web Accusations

Oracle Corp. has filed suit against the Oregon agency that operated the state's now-defunct Obamacare marketplace website, in the process accusing Gov. John Kitzhaber of trying to systematically "vilify the company in the media."

In a 21-page complaint filed with the U.S. District Court for Oregon, Oracle maintains the state continued to work with the company to fix problems with the Cover Oregon site while at the same time carrying out a campaign of "constant public slander."

Cover Oregon finally dropped Oracle as its web developer for the health care insurance site in March and the next month shut it down and turned over operations to the federal government with its HealthCare.gov site, the main national vehicle for selling policies under the Affordable Care Act (ACA), or Obamacare.

Gov.Kitzhaber urged the state attorney general back in May to sue Oracle, but before that happened, Oracle opened fire with its own legal action this past Friday.

Melissa Navas, a spokesperson for the governor, said the lawsuit was expected and would be vigorously challenged because of "Oracle's failure to deliver" on the development of CoverOregon.com, which cost $248 million to build — all with federal taxpayer dollars.

To understand the ACA better and learn how it applies to your business, no matter how large or small, please procure a copy of our ACA Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Judge Rules College Athletes Own Rights to Their Names and Images

In a case brought to trial against the NCAA (National Collegiate Athletic Association) by former UCLA basketball star Ed O'Bannon, a federal judge has ruled that Division 1 football and basketball players, who were included in the lawsuit, own the rights to their names, images and likenesses.

Thus the NCAA and its constituent schools can no longer use their football and basketball players in promotions without paying them. U.S. District Judge Claudia Wilken, however, ruled that the athletes could not receive payment while in school because that would  “undermine the efforts of both the NCAA and its member schools to protect against the ‘commercial exploitation’ of student-athletes.” Payment will have to be withheld until they are no longer students, and students cannot pursue their own commercial endorsements while attending college.

In a 99-page ruling, Judge Wilken wrote:

After considering all of the testimony, documentary evidence, and arguments of counsel presented during and after trial, the court finds that the challenged NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools.The procompetitive justifications that the NCAA offers do not justify this restraint and could be achieved through less-restrictive means. The court … will enter as a remedy a permanent injunction prohibiting certain overly restrictive restraints.

In a nod to the NCAA and its schools, the judge also ruled that they could cap yearly payments at $5,000 per athlete.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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