LER 201 Exam 4

FMLA Benefits Denied or Delayed

"Retaliation"

FMLA Benefits

1.) 12 weeks of unpaid leave (26 weeks for some service member leave) 2.) Maintenance of health insurance 3.) Restoration to same or equivalent position

ERISA Title 1

1.) Advise employees regarding the benefits they offer. 2.) Deliver promised benefits. 3.) Provide claims and appeal procedures. 4.) Manage benefits wisely and for the benefit of its employees, a fiduciary duty. 5.) Not interfere with or retaliate against beneficiaries.

Qualifying Event

1.) Birth/placement of son or daughter 2.) Care for family member with "serious health condition" -Cannot just be because your family member has a serious health condition -Death of a family member is not covered 3.) Employee's own "serious health condition" 4.) Service member ("military caregiver leave" or "qualifying exigency")

Continuous v. Intermittent

1.) Doesn't have to be continuous 2.) If you have a migraine condition then you get the intermittent leave

Employees may choose - or employees may require them - to use paid leave during FMLA leave

1.) If someone goes out on FMLA it is generally unpaid -Employer can say their employees have to use their vacation days concurrent to FMLA -But for the 2 weeks of vacation time the employee is required to take, the employee gets paid

Calculating the Amount of Time Remaining

1.) Calendar year 2.) Fixed 12 month period 3.) 12 month forward from the first time employee takes leave 4.) Rolling 12 month "look back" 5.) Note: if no method id specified, courts will use the method that is most advantageous to the employee

Revisit NFIB v. Sebelius (PPACA - Individual Mandate)

1.) Can federal government just tell everyone they have to have insurance -5 of 9 Supreme Court justices said "if you have a tax saying 'if you don't purchase health insurance then you have to pay this tax, then that's okay under the constitution'" -Congress is allowed to tax because it is a correct use of their power

PPACA - Employer Mandate

1.) Delayed until 2015/2016 2.) FTE = full time equivalent 3.) 2015: Employers with greater than 100 FTE's must cover 70% of FT employees 4.) 2016: Employers with greater than 50 FTWs must cover "substantially all" (>95%) FT employees 5.) Full-Time (FT) is 30 hours or more per week (for purpose of PPACA) 6.) Employers with more than 50 full time equivalents must provide health insurance to full time employees who work 30 hours or more per week

ERISA - Deliver Promised Benefits

1.) Employees may sue for denial of benefits. 2.) Abuse of discretion standard for plan administrators. 3.) Administrators of benefit plans must base benefit determinations on plan documents, have reasons for their decisions, and use all the current and relevant information available to them.

Why is this an employment law topic?

1.) Employer may be concerned with employee's health 2.) Health insurance is usually used for incentives and benefits 3.) Everyone is not mandated to have health insurance 4.) Beyond a recruiting mechanism, employers offered health insurance wasn't taxed 5.) Why do we want employers to provide health insurance? -We want people to be able to get their medical treatment taken care of -It aligns the employer with the employees

"Key Employee" is salaried and in top 10% in pay

1.) Employers cannot deny leave -Key employees CAN take FMLA leave 2.) Employers can decline to restore them if restoration if it would "cause substantial and grievous economic injury" -Employer can place the key employee at a lower position or not at all BUT only if they can establish that returning the key employee to their position will cause substantial and grievous economic injury to the company

COBRA

1.) Employers must continue coverage for 18 or 36 months 2.) Beneficiaries can be charged up to 102% of the cost to the employer (2% goes to administration) 3.) How does ObamaCare impact ________? -Can get a group rate -Might qualify for a subsidy 4.) ________ Qualifying Events -18 months of continuation: voluntary or involuntary termination other than "gross misconduct", reduced hours -36 months of continuation: divorce or legal separation, death of an employee (includes family of person who passed away), loss of dependent child status, covered employee becoming entitled to Medicare

What are ObamaCare exchanges? (PPACA - Medicaid Expansion)

1.) Every state was required to set up a state exchange where people can purchase health insurance 2.) Specific plans are posted on the exchange 3.) Federal Government doesn't have the power to force them to make it, so a lot of states didn't 4.) Federal Government took it upon themselves to set up individual state's exchange 5.) "Centralized marketplace" for health insurance

What is Medicaid? (PPACA - Medicaid Expansion)

1.) Government assisted heath insurance for people with low incomes -States administer Medicaid but funding comes from the federal government -If you fall below a certain poverty threshold

Eligible Employee

1.) Has to have worked there for 12 months. 2.) Worked 1,250 hours in the past 12 months 3.) Calculated based on the timing of the leave and not the timing of the request

PPACA - Insurers

1.) Health insurance is similar to gambling -Depends whether or not you have any serious issues -Can lose money if you do not have any major health issues 2.) Pre-existing condition exclusions are prohibited -They have already "won" 3.) Essential health benefits (e.g. maternal and newborn care, mental health, and substance abuse) 4.) Rates based on age, geographic area, family coverage, and tobacco use -Insurers are no longer allowed to change their rates based on these aspects -Want everyone to be in, covered by insurance, and paying the same rate

What did the Supreme Court say? - Discussion of NFIB v. Sebelius (PPACA - Medicaid Expansion)

1.) It was unconstitutional and coercive to states -Federal Government can't tell states what to do -They weren't just conditioning the new money, but they were taking away the existing money

Serious Health Condition

1.) Its complicated 2.) Generally: Incapacity and/or treatment 3.) Employers usually request certification (using DOL forms)

Which employers and employees should be covered?

1.) Larger employers -Have more resources 2.) Full time employees

Categories of Benefits (ERISA)

1.) Pension plans (to provide retirement income) 2.) Welfare plans (covers all other benefits, including health care insurance, childcare subsidies, pre-paid legal services, etc.)

Exclusions

1.) Premium, sick pay, vacation pay, college scholarship or tuition plans, etc. 2.) ERISA does not require employers to provide any pension plan at all. -ERISA governs retirement plans but does not require them. -If you have a retirement plan, you have to follow ERISA's rules but you don't have to have a retirement plan at all. -This is the same with welfare plans.

Covered Employee

1.) Private: More than 50 employees at the same worksite or multiple sites within 75 miles 2.) We will not cover FMLA for public agencies in this class

Individuals must obtain minimum essential coverage or else pay a monetary penalty (or is it a tax?) (PPACA - Individual Mandate)

1.) Saying buy health insurance or pay a tax 2.) Congress doesn't have power to tax 3.) This mandate acts as a tax

Why should employers be required to allow leave?

1.) Shouldn't be punished for having to take care of your family 2.) Help the employer's happiness

PPACA ("Obamacare")

1.) Signed in 2010, but still getting phased in -It still hasn't been fully implemented 2.) Numerous legal challenged - some of them are still going -Individuals mandate was challenged as being unconstitutional

Retirement Benefits

1.) Social security 2.) Unemployment insurance (unemployment compensation) 3.) Workers compensation -If you get hurt on the job, you get paid -- there is no law suit, you just get the money -Can't file a law suit so you're limited to what workers compensation provides 4.) What about ObamaCare employer mandate? (penalty: $2,000/employee but first 30 are exempt) -Employer has to have 50 full time equivalents to fall under the mandate

ERISA - Advise re: Benefits

1.) Summary Plan Description (SPD) - Must be given to employees with 90 days of eligibility for benefits. 2.) Summary of Material Modifications - Outlining changes to benefit plans. 3.) Summary Annual Report - Financial data on benefit plans. 4.) Individual Benefit Statement - Regarding employee's individual pension plan. 5.) Disclosure Notice - Notifying employees of certain funding problems with pension plans.

ERISA

1.) The written plan controls. 2.) Participants may not rely on oral representations. 3.) Hypothetical: The plan says an employee will get $100/month per year of service. A 20 year employee meets with an HR rep. The HR rep tells him he will get $2,200/month (which is wrong, the plan does say he would only get $2,000). He sues to enforce the HR rep's promise--will he win?

Lichenstein v. UPMC

1.) Third circuit case 2.) Not a model employee -Scheduled a vacation -Was fired -Said she needed to go care for a family member 3.)She tells the employer that her mother is in the ER and that she needs to be there -Not going to be able to go to work that day 4.) Employer needed to have notice that the employee needed FMLA leave 5.) Case shows that the employee doesn't need to say they need FMLA leave -Just needs to say enough that the employer can put together that the employee needs FMLA -Employer had enough information to know that it was FMLA

Same-Sex Spouses

1.) US v. Windsor - SCOTUS strikes down some DOMA provisions -Stated that marriage was between one man and one woman 2.) Residence Rule -Employer should look to law where the employee resided 3.) DOL final rule effective March 27, 2015: "Celebration rule." 4.) Obergefell v. Hodges - ___________ marriage in every state -Holds that states cannot deny marriage license to same sex couples 5.) Does it matter anymore? -No, this doesn't really matter anymore -Minor difference from state to state

How do you address the problem? (PPACA - Individual Mandate)

By saying everyone has to buy health insurance

Employer cannot mandate longer leave for administrative convenience

If the employee's health condition only lasts 10 weeks, the employer cannot bump it to 12 so it's easier to track

What if they don't? (PPACA - Medicaid Expansion)

If you don't do it, you don't get new money and now they take away the existing Medicaid funding (?)

What does ObamaCare "want" states to do? (PPACA - Medicaid Expansion)

One of the things ________ did was attempt to expand Medicaid and said they would give more money to states if they gave Medicaid to more people

Notice to Employer

Under interference with FMLA rights Prima Facie elements (Letter D)

Remaining FMLA Leave Available

Under interference with FMLA rights Prima Facie elements (Letter E)