Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Affordable Care Act’

If you have a preexisting health condition, don’t even think about leaving your job

Tuesday, November 15th, 2016

If President-elect Trump follows through on his campaign promises, millions of individuals-immigrants, religious minorities, people of color-face a very grim four years. One of the worst hit groups will be Americans with significant health costs. The Trump transition team published a brief summary of the incoming president’s health plan on its website, and the news is not good for the elderly, the poor, and millions of Americans with preexisting conditions.

Much of the plan is vague. Trump plans to “Modernize Medicare,” for example, an unclear statement that is likely code for Speaker Paul Ryan’s (R-WI) plan to repeal Medicare and replace it with a voucher system that imposes much higher out-of-pocket costs on seniors. Similarly, Trump says he will “Maximize flexibility for States in administering Medicaid,” a statement that is probably code for Ryan’s plan to either “require states to provide less extensive coverage, or to pay a larger share of the program’s total costs, than would be the case under current law.”

A central prong of Trump’s plan, however, is to repeal the Affordable Care Act and replace it with, well, not much at all. Trump says he will “repeal the ACA and replace it with a solution that includes Health Savings Accounts,” which primarily benefit the rich and offer little or no benefits to low and middle income Americans. Trump will “enable people to purchase insurance across state lines,” a coded phrase which actually means that he will eliminate state regulation of insurance which requires coverage of treatments ranging from mammograms to maternity stays to well child care.

And then there’s his proposal for people with preexisting health conditions.

Prior to Obamacare, one of the most vulnerable groups was people with medical conditions who neither qualified for a government health program nor received insurance through their employer. Insurance companies would deny coverage to these individuals for conditions as severe as cancer or as routine as hay fever.

The reason why is that covering people with such conditions is expensive. A health insurance plan is a pool of money. Consumers contribute to that pool when they pay their premiums, and they take money out of that pool when they become sick or otherwise seek treatment. That means that, if someone tries to join the pool who has a preexisting condition, the insurer will try to keep them out because it will cost more to insure them than they will pay in.

The Affordable Care Act addressed this with a trio of reforms—a requirement that insurers allow everyone in, subsidies to help pay for coverage, and a financial consequence for people who fail to buy insurance. The final of these three reforms existed so that healthy people would not forego insurance, forcing insurers to cover only the most expensive individuals.

Trump plans to eliminate this framework and replace it with “high-risk pools,” essentially, a special insurance program for people with expensive preexisting conditions. In theory, high-risk pools can work to provide health coverage with such conditions, but they are an inefficient way to do so. And they have reliably failed when attempted by states.

At best, high risk pools are a way to maximize the insurance industry’s profits while shifting the costs of our health care system onto the taxpayers. If the government takes on the burden of insuring the most expensive individuals?—?and only the most expensive individuals?—?then that’s a bonanza for the insurance companies because they will be left with a pool of less expensive (and more profitable) consumers. Meanwhile, the costs of providing care for the most expensive health care consumers will fall upon whatever new government program President Trump creates to manage the high risk pools.

But that’s actually the best case scenario for Trump’s health plan. Because high risk pools take on the most expensive health care consumers, they are expensive to maintain. And when states attempted to set them up in the past, they did not fund them enough to cover more than a fraction of what was needed. As one report explained when Sen. John McCain (R-AZ) proposed high risk pools during his 2008 presidential bid, these pools “have not been a viable alternative for the medically uninsured because of high premiums…and inadequate funding to subsidize the full cost of providing insurance to a high-cost population.”

McCain’s plan is informative regarding what a Republican proposal for high-risk pools is likely to look like. The Arizona senator proposed spending between $7 to $10 billion on these pools. But that would only cover a fraction of the Americans who would lose their health insurance if Obamacare is repealed. A national program “funded at $7 billion per year would cover only 875,000 people,” and that was in 2008. Alternatively, “even if participants had to pay half of their own premiums, as is generally the case today in state high risk pools, less than 2 million Americans would be covered.”

Obamacare provides health insurance to about 20 million Americans.

Of course, Trump’s proposal is vague on details and especially short on numbers. So maybe he plans to fund the high risk pools enough to fill the gap that will be created by repealing Obamacare. The likelihood that Republicans intend to replace a policy they denounced as socialism with what would likely be a significantly more expensive government program, however, is small.

If there is any ray of light in Trump’s proposals, it is that he doesn’t appear to have set his eyes on pre-Obama laws that protect workers with employer-provided health plans that have preexisting conditions. Nevertheless, Trump is, in effect, planning to reinstate a problem known as “job lock,” where people in jobs that they would rather leave are forced to stay in them because it is the only way that they can obtain health benefits.

That means fewer people starting businesses, more people working into the years when they would rather retire, fewer jobs opening up for younger workers eager for new opportunities, and more people simply stuck in jobs that they hate.

On November 7th, it seemed like workers were finally free to take risks without having to fear that they would lose their health coverage. Only a few days later, that freedom is likely to disappear.

This blog originally appeared in ThinkProgress.org on November 11, 2016. Reprinted with permission.

Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at  imillhiser@thinkprogress.org.

Republican House Bill Cuts Workers' Health Care Coverage

Sunday, January 11th, 2015

Image: Mike HallSome 1 million workers could lose their employer-provided health insurance under a Republican bill (H.R. 30) passed by the House (252-172, with 12 Democrats crossing the aisle) today. On top of stripping health care coverage from those workers, the bill also would add some $53.2 billion to the federal deficit over the next decade, according to the Congressional Budget Office.

The attack on the Affordable Care Act (ACA) comes just two days after Republicans approved legislation that could lead to cuts in Social Security disability and retirement benefits.

Under the ACA, large employers must provide health care coverage to employees who work 30 or more hours a week or they face a penalty. H.R. 30 kicks up the 30-hour threshold to 40 hours a week.

That increase, say health care experts, provides an incentive for employers to drop their 40-hour a week employees down to just 39 hours without a penalty and avoid any responsibility to offer health benefits.

A UC Berkeley Labor Center study estimates there are 6.5 million people at risk of having their hours cut back under the Republican bill. That’s nearly three times the number (2.3 million) that are vulnerable to losing their hours under the current 30-hour threshold.

But even with the current 30-hour a week definition, some employers are cutting back the hours of workers—many of whom worked 30–36 hours a week—to duck providing health coverage and avoid paying the ACA’s penalty. The AFL-CIO and other groups support strengthening employer responsibility rules in the ACA.  Delegates to the AFL-CIO Convention 2013 approved a resolution on the ACA that includes a call for:

Applying a full employer penalty for failing to provide affordable comprehensive coverage to workers who average 20 or more hours per week and adding an employer penalty on a pro rata basis for employees who work fewer than 20 hours per week.

Since the ACA became law, the number of Americans with health insurance has increased by more than 10 million, with the majority of those receiving employer-provided health care. Since the law’s requirement for Americans to have health insurance went into effect a year ago, the percentage of uninsured has dropped from 17.1% to 12.9%.

H.R. 30 and a companion Senate bill that Senate Majority Leader Mitch McConnell (R-Ky.) says he will have on the floor before the end of January will wipe out those gains. We’ll keep you posted on the Senate bill and how you can take action.

This blog originally appeared in AFLCIO.org on January 8, 2015. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

500 Strong in Pennsylvania Bringing Healthcare to the People

Tuesday, December 31st, 2013

seiu-org-logoWhen SEIU members in Pennsylvania made a decision to make the Affordable Care Act a success in the Keystone state, they knew their main focus would need to be on door-knocking and reaching out to the community directly. And it was a good thing they did, as initial problems with theHealthcare.gov website made it difficult for many people to get information as the enrollment period began.

At its height, there were more than 500 SEIU members working full-time in Pennsylvania, visiting the houses of uninsured home care workers and other low income families who often were uninsured. They also passed out information at health fairs, farmers’ markets, and other public events in order to get folks started on the path to health care.

One of these SEIU members was Chris Sloat, a Licensed Practical Nurse from Wilkes-Barre. Sloat works at the Guardian Elder Care nursing home, and sees firsthand what a lack of health insurance can do to people coming into her facility.

“As a nurse, I see people with all sorts of conditions who could have been spared a lot of suffering if they’d had preventative care. People come in needing full-time care after suffering stokes in their 50’s.”

 

Chris spends countless hours going door to door and passing out information at public events in order to counter all the right-wing attacks that flood the state’s airwaves. “One day at the nursing home, most of the folks had their radios on and I counted six commercials in one hour that attacked the Affordable Care Act,” she said. “I can STILL remember the lines from those ads.”

Chris had dozens of conversations at people’s doors, when the first things out of their mouths would be “Obamacare? That terrible program?”. But after giving them the facts and having an honest conversation with them, they’d be grabbing the phone as she left in an attempt to sign up.

Chris Sloat not only was a champion for the Affordable Care Act this fall, but also personally benefitted from the law. Two of her children have been able to stay on their father’s health insurance plan because the Affordable Care Act mandates that children be allowed to stay on until they turn 26.

In addition, Chris previously had a somewhat high co-pay for her yearly mammograms, and at least once she had to forgo the procedure due to a money crunch. But thanks to the new law, Chris’s plan now offers free preventative care and she’ll never again have to worry about paying for potentially life-saving checkups like these.

This article was originally printed on SEIU on December 18, 2013.  Reprinted with permission.

Author: SEIU Communications

They Just Didn't Know How to Take the Next Steps

Saturday, December 21st, 2013

seiu-org-logoRoberta Kenner works as a registrar at the Wyckoff Heights Medical Center in Brooklyn, N.Y., and is a member of SEIU Local 1199. In recent months she worked as a lost-timer for her local union–helping to sign up uninsured New Yorkers for affordable new healthcare options under the Affordable Care Act.

As part of Local 1199’s program, the Healthcare Education Project, Kenner and her union brothers and sisters spread throughout the city with Kenner’s team focusing on the low-income areas of Queens. Members of Local 1199 were able to knock on 134,000 doors and speak to more than 36,000 residents about the new benefits available under the law. And they got results. For those people they identified as being eligible for affordable care, nine out of ten pledged “Yes” to take action by signing up with the New York healthcare exchanges.

Kenner is proud of work she has done, and got to see firsthand how hungry people were for more information. “A lot of people know about the law, but they just didn’t know how to take the next steps,” she said. “And it was amazing to see their expressions change as the conversation went on. One lady went and grabbed a laptop and started signing up just as I was leaving, which really makes you feel that all this work is not in vain.”

This article was originally printed on SEIU on December 20, 2013.  Reprinted with permission.

Author: SEIU Communications.

"A week later I got my Medicaid card in the mail, and now I have healthcare again."

Tuesday, December 3rd, 2013

seiu-org-logoElizabeth Aviles works as a Certified Nursing Assistant in Waterbury, Conn. She is also a member of SEIU Local 1199NE. Since Aviles works only 22 hours a week, she is not able to purchase health insurance, which is especially troublesome since she has some serious medical issues that require immediate attention. So when a fellow member of 1199NE knocked on her door one day as part of an outreach effort, Aviles had no idea how her life would change over the next 30 minutes.

He explained how she might be eligible for Medicaid–under the expanded program the state was instituting thanks to the new healthcare law. He had Aviles dial the number to the state’s call center, and then she was placed on hold for 20 minutes.

“Once I got someone on the line, I was approved for Medicaid in about 5 minutes,” Aviles said. “A week later I got my Medicaid card in the mail, and now I have healthcare again.”

Aviles is relieved, because now she can get the medical help she needs. In addition, to an upcoming surgery she is scheduling, Aviles will be able to take care of some of the other lingering issues she has had. “At my job I’ve had to help treat clients who are suffering from back pain, when I’m suffering from the same thing myself and without the resources to get it treated,” she said.

The goal of President Obama’s Affordable Care Act has always been to give people access to medical care regardless of income and without putting them into serious debt. For millions of working American’s like Aviles who previously couldn’t afford care, that goal is becoming a reality.

This article was originally printed on SEIU on November 22, 2013. Reprinted with permission.

Author: SEIU Communications

Workers Battle With Grocery Chains Over Obamacare Implementation

Thursday, November 7th, 2013

Bruce VailUnions representing about 30,000 grocery workers in the Puget Sound region claimed a victory last week in a labor contract fight that centered on the implementation of Obamacare in the area’s biggest supermarket chains.

Western Washington state locals of the United Food & Commercial Workers (UFCW) and theTeamsters have been bargaining for months with representatives from Kroger, Safeway and Albertsons, all among the largest supermarket chains in the country. In addition to the elimination of health insurance coverage for 8,000 part-time workers, the initial demands from the grocery retailers included extended wage freezes and selective elimination of overtime pay, according to Seattle-based UFCW Local 21. The workers were within hours of beginning a strike before a last-minute deal was reached on October 21.

“I started working in the grocery business over 40 years ago. The proposals we saw this time from employers were some of the worst I’ve ever seen. They tried to turn us into Wal-Mart. They did not succeed,” commented Local 21 President Dave Schmitz in a formal statement  issued at the end of the ratification vote October 25.

Though union representatives like Schmitz are declaring the deal a victory, in reality, the ratification is only a partial success for workers. In Seattle, part-timers were not cut from insurance eligibility, as Kroger and the other chains had demanded, and no new healthcare costs were imposed, says spokesman Tom Geiger. But contract gains on wages were “modest,” Local 21 says, and other negotiating achievements were limited to beating back demands for sweeping concessions. For their part, the grocers maintained that the deal preserved “good wages, secure pensions and access to quality, affordable healthcare for [their] employees.”

Beginning Jan. 1, 2014, Puget Sound grocery workers will earn wages ranging from $9.42 an hour for newly hired checkout clerks to $19.50 for the highest-paid meat-cutters and other experienced food specialists, Geiger says. In keeping with a historical pattern in the area, this hourly rate for lowest-paid workers is 10 cents more than the state’s minimum wage (Washington currently has the highest minimum wage in the country at $9.19 and hour with a scheduled rise to $9.32 at the beginning of 2014). Rather than a general wage increase in the contract’s first year, each union member will receive a bonus payment based on the number of hours they worked over the last year. In the second and third years of the three-year contract, most union members will get a straight wage increase of 25 cents an hour each year.

But other potential improvements in wages or other benefits are being sacrificed, at least in part, in exchange for companies footing the rising bill of the existing health plan, the union reports. The grocery chains currently pay $4.38 for each hour worked by a union member into the health fund, with that figure rising to $4.86 over the life of the contract. That increase is expected to pay the costs of maintaining the health insurance plan at its current level of benefits for the next three years. Local 21 and UFCW declined to comment further on contract specifics, though Schmitz’s statement acknowledged that the unions “did not get everything they wanted.”

Because the Affordable Care Act requires many companies to pay more for employees’ healthcare, grocery worker unions across the country are facing stiff concessionary demands as their employers make the transition. Early this year, New England UFCW locals reached an uncomfortable compromise with the large Stop & Shop grocery chain that was similar in some ways to the Seattle agreement. In that case, UFCW agreed to eliminate healthcare eligibility for some part-timers, but only on the condition that the supermarket company provide financial and legal assistance in obtaining similar healthcare coverage from other sources for the dislocated workers. And similar contract struggles still under way in New YorkCincinnati, Baltimore, andWashington, D.C. show that union leaders nationwide are facing unusually heavy pressure as grocery chain corporations frequently try to cut their own costs at the expense of healthcare for employees.

In an October 28 message, Tony Speelman, lead negotiator for New York’s UFCW Local 1500, acknowledged that Obamacare “has presented unprecedented challenges” to workers and corporations alike. However, he said, Local 1500, which is now in negotiation for a new contract with Stop & Shop, “came to the bargaining table in good faith understanding that we would have to make changes to our health fund to be compliant under the legal requirements of [the Affordable Care Act].”

And, as he points out, there’s no reason for companies to take the law’s passage as an opportunity to cut workers’ benefits. “Stop & Shop seems to think [Obamacare] is an opportunity to achieve three goals: increase their profits, pick their employees’ pockets and undermine the union contract. That type of irresponsible bargaining will only lead to three conclusions: a work stoppage, unnecessary inconvenience for their customers and devastating economic damage to hundreds of New York communities.” In general, he continued, Obamacare “was not passed with the intent of eliminating an employer’s responsibility to provide affordable and comprehensive healthcare to its employees.”

This article was originally printed on Working In These Times on November 6, 2o13.  Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

"Something Good, You Always Have to Have a Little Patience"

Wednesday, November 6th, 2013

seiu-org-logoCecelia Fontenot works part time as an accountant for a trucking company in Houston Texas. She was laid off from her current job back in 2008, and has been without health insurance ever since. After a brief retirement, she had to return to the workforce because her widow’s pension wasn’t enough to cover her medical expenses.

But Fontenot’s current job doesn’t provide her with health insurance, and recently she had to stop buying a drug for her diabetes because she couldn’t afford the $300 per month.

Like many people, website problems prevented Fontenot from enrolling in the healthcare exchanges on the first day. But that didn’t stop her. “Something good, you always have to have a little patience,” she says.

Activists from the Texas Organizing Project–an organization affiliated with SEIU Texas and the Fight for a Fair Economy–encouraged her to sign up for health coverage through the telephone call center of the federal marketplace.

Fontenot is now looking forward to Jan. 1 when the health care kicks in for new enrollees in the exchanges. Several times Cecilia hasn’t been able to afford the second mammogram that her doctors recommend after finding a lump. She has been getting by with prayers, but with insurance she’d be able to get that second mammogram.

She has been telling her friends and neighbors without health insurance to check out their options available under the new law. “Do not be afraid,” Fontenot says. “Go on and sign up. Ask question, get answers, and get covered.”

This article was originally printed on SEIU on November 1, 2013.  Reprinted with permission.

Author: Service Employees International Union

The Shutdown: How It Hurt, What We Learned, Where We Go from Here

Tuesday, October 22nd, 2013

seiu-org-logoFor working people across the country, the week ends with a mix of relief and frustration.

The hundreds of thousands of federal workers who had been furloughed during the 16-day government shutdown were glad to return to their jobs, freed from the anxiety of not knowing when they’d get another paycheck.

SEIU appreciates the strong stand President Obama, Senate Majority Leader Harry Reid (D-Nev.), House Minority Leader Nancy Pelosi (D-Calif.) and others took to defend the Affordable Care Act. And now, a window is open for negotiations on reversing the devastating sequester before the next round of cuts, scheduled for January.

At the same time, we can’t ignore that the shutdown hit working families hard. It did real damage–costing the economy $24 billion, according to Standard & Poor’s. That’s a staggering impact from what SEIU President Mary Kay Henry called a “crisis manufactured by the far-right wing of the Republican Party.”

That number–$24 billion–is unimaginably big, so consider one person’s story: LaShante Austin, a member of SEIU 32BJ, told MSNBC if the shutdown had not ended, she was not going to be able to pay rent. “I have got to put food on the table. I can’t tell the bill collectors, ‘Sorry, the government’s shut down,'” she said. Austin is a security officer at the Statue of Liberty, a symbol of American greatness.

Don’t working people like LaShante Austin deserve better from America’s leaders?

Congress must now debate and pass a budget to fund the federal government in the new year. A bipartisan committee with members from both the House and the Senate has until mid-December to issue recommendations. If the committee fails, the government could shut down again Jan. 15 and the debt ceiling could be reached Feb. 7.

This committee must meet its deadline, but it must also resist making decisions that would continue to fund vital services at austerity levels. Nor should members of Congress try to undermine retirement security in pursuit of a bogus “grand bargain.” We must work to change the economic narrative and reverse the politics of austerity. The shutdown is over, but the fight continues to improve the lives of working people. Sign up to receive updates as the budget committee gets to work.

Averting the crisis has also given Washington, D.C., the chance to focus again on immigration reform–something President Obama pledged this week to do.

The time is now for commonsense immigration reform, and you can add your voice!

SEIU, Reform Immigration For America (RI4A) and the Campaign for Community Change are taking the fight to social networks in a big way. Join us in calling on Home Depot, Wells Fargo, Bank of America and Dominos to use their influence to build support for immigration reform.

This article was originally printed on SEIU on October 18, 2013.  Reprinted with permission.

Author: SEIU Communications.

Treasury Rejects Labor’s Top Obamacare Demand

Monday, September 23rd, 2013

David MobergOn Friday afternoon, following a major labor convention at which many union leaders forcefully advocated revisions in the Obama administration’s interpretations of the Affordable Care Act (ACA), the Treasury Department released a letter that effectively dismissed at least one of labor’s key demands.

A major concern at the quadrennial AFL-CIO conference in Los Angeles this week was the ACA implementation looming in October, particularly the exclusion of multi-employer health plans—which are jointly administered by unions and employers in many industries—from the state health exchanges. UNITE HERE, the United Food and Commercial Workers and the Teamsterswere particularly concerned because many of their members use the multi-employer plans.

As the administration had promised, President Obama met on Friday with a labor delegationheaded by AFL-CIO president Richard Trumka to discuss labor’s request for administrative changes to address their problems with ACA. Obama told the delegation that their multi-employer union plans would not  be eligible for participation in the exchanges, according toForbes. Then shortly afterwards, the Treasury letter, addressed to Sen. Orrin Hatch (R-Utah), came to public attention. Hatch had previously written to the Treasury asking if they agreed with him that multi-employer plans should be kept out of the exchange.

Originally made possible by the predominantly anti-labor Taft-Hartley law in 1947, the multi-employer, non-profit plans allowed workers in fields such as construction—who may work in short stints and for multiple employers—to have a steady source of insurance. Union analysts think the lack of subsidies will put Taft-Hartley plans at a disadvantage, incentivizing employers to abandon the plans and buy insurance directly from exchanges. This would leave workers in the lurch when they are between jobs.

The Taft-Hartley plans would also be put at other disadvantages in the new insurance market. Even though the non-profit multi-employer plans have never discriminated on the basis of pre-existing conditions, they will still have to help pay for for-profit insurance companies to newly cover people previously excluded on this basis. Unions argue that this arrangement unjustly increases the costs of their Taft-Hartley plans. Some union plan officials also want more time to adjust to the cost of eliminating caps on how much any insured individual can receive in insurance payments over a year or a lifetime. There are other concerns, ranging from insurance requirements for federal contractors to definitions of part-time workers, for whom employers do not have to provide insurance.

Most union leaders have not commented on the letter. Staff-level talks between unions and the administration are scheduled for this week, and many leaders apparently still hope to salvage some ACA reforms, even if they don’t win everything.

Union passions on the subject run hot, and some leaders, such as LIUNA president Terry O’Sullivan, wanted the AFL-CIO to pass a resolution at the conference calling for the repeal of the ACA if the administration did not agree to reforms. Instead, the resolution endorsed single-payer insurance as labor’s ultimate goal, but called for improvements in the ACA (and in Medicare as well). Meanwhile, most unions appear ready to continue negotiating with the Obama administration and see what they—like big business, which won huge exemptions recently (notably a year delay in implementing the key mandate to provide insurance)—can finally win from their frustrating talks.

This article was originally printed on Working In These Times on September 18, 2013.  Reprinted with permission.

About the Author: David Moberg is a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.

How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits?

Friday, June 28th, 2013

Jeff NowakUnless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRANPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subscribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

This article was originally printed on FMLA Insights on June 27, 2013.  Reprinted with permission.

About the Author:  Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.

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