Employment Law This Week: ACA Provisions Extended, ADA’s “Safe Harbor,” Paid Leave, WARN Act

Episode 11: Week of January 18, 2016

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BONUS: See the extended interview with Michelle Capezza

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This week’s stories include ...

(1) Two Key ACA Provisions Extended

Over the holidays, the U.S. government and federal agencies announced deadline extensions for two significant Affordable Care Act (ACA) provisions. Information reporting deadlines for the tax year 2015 have been extended by several months, and the effective date for the so-called “Cadillac Tax,” a 40 percent excise tax on high-cost health plans, has been delayed until January 1, 2020. Michelle Capezza from Epstein Becker Green explains how the delay in the Cadillac Tax will affect employers. Read more about the ACA provisions. Update: See the extended interview here.

(2) ADA “Safe Harbor” Provision Protects Employer from EEOC Complaint

A judge in the U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin plastics maker Flambeau did not violate protections under the Americans with Disabilities Act (ADA) with its wellness exam and questionnaire. The Equal Employment Opportunity Commission (EEOC) brought the claim because the company required employees to take the exam to enroll in health coverage. The ADA normally prohibits mandatory medical exams unless they are job-related. In this case, employees were not at risk of losing their jobs if they did not participate in the program. The judge, relying on the Eleventh Circuit’s decision in Seff v. Broward County, ruled that, because the information gathered during the exam was used to establish and administer the company’s bona fide benefit plan, it fell under the ADA's "safe harbor" exception. Read more about Seff and the ADA’s safe harbor provision.

(3) Paid Leave Does Not Equal Termination

The EEOC charged that a San Jose bakery violated an injunction against firing an employee when it placed her on paid leave. The employee is currently involved in a worker discrimination suit against the bakery, alleging that she was treated differently because of her Mexican heritage. A federal judge in California rejected the EEOC’s argument, ruling that the injunction was not violated because paid leave is not equivalent to a firing.

(4) No “Mass” Layoff for WARN Act Action

A group of employees fired from Vanderbilt University Medical Center in July 2013 brought a mass layoff claim under the Worker Adjustment and Retraining Notification (WARN) Act. The group was too small to qualify for WARN, so the employees relied on the aggregation provision, which allows groups of employees fired within 90 days of each other to combine for the action. The second group received notice of their layoffs in September 2013, which falls within the 90-day threshold, but since that second group was on the payroll until November of that year, the Sixth Circuit said the employment relationship did not end until then, and so the WARN Act did not apply in this case.

(5) In-House Counsel Tip of the Week

Steven Sheinberg, General Counsel for the Anti-Defamation League, gives some advice on building a privacy compliance program.

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