Family and Medical Leave Act
FMLA permits qualified employees of participating businesses to take time off from work without pay for specified medical or reasons, while their job is protected. In order for a business to be covered they must be:
• A private company with over 50 employees who work at least 20 weeks per year.
• A public agency or a public or private school regardless of the size of the workforce.
Eligible employees must have been on the job at least 12 months during which time he/she has worked at least 1,250 hours during the 1 year period just before the leave is to be taken. They must also work at a location with at least 50 employees within a 75-mile radius. Employees can use FMLA for as many as 12 weeks in a 1 year period for any of these reasons:
• The birth or adoption of a child
• To care for family member who is seriously ill (spouse, child or parent).
• Serious personal health issue which keeps the employee from performing his/her job.
• For any qualifying need occurring because a spouse, child or parent is serving on active military duty. Employees may also take up to 26 weeks in a 1 year period to care for a covered service member with a serious injury or illness (spouse, parent, child, next of kin).
Under certain situations, employees may use FMLA leave intermittently. Employees may take separate blocks of time off or reduce the number of hours worked each day due to a single issue, such as asthma (FMLA Fact Sheet). Recently it was the practice of intermittent FMLA leave that has come under criticism for suspected fraudulent practices among the correctional officers in Cook County, Illinois. According to the Editors of the Chicago Tribune, approximately 40 percent of jail employees have been certified for FMLA and qualified for intermittent leave. One employee called in sick on Mother’s Day then posted a video on Facebook from a casino bragging that his mother was hitting it big. Evidentially, there are spikes in intermittent leave usage that happen around holidays, sporting events and snowstorms. The most recent such occurrence happened on the Saturday night when daylight savings time ended which extended the overnight shift by 1 hour. Of the 389 employees scheduled for that shift, 144 of them called in sick, of that number 82 used intermittent FMLA. Even though supervisors may suspect abuse of the program, they can’t refuse. Proving fraud is a lot of work and expense. However, there is great expense in overtime costs to cover these “sickouts.” They also jeopardize the safety of inmates while housed in short staffed facilities (Editor Board, 2017).
COBRA
In 1986 congress passed the Consolidated Omnibus Budget Reconciliation Act. This law amends several others, including the IRS code, Public Health Service Act and ERISA to provide for the continuation of group health coverage. Certain former employees, retirees, their spouses and dependent children may continue health coverage at group rates for specific periods of time. Coverage must be lost due to a specified event for eligibility. Participants usually have to pay the full premium cost, which is more expensive than when they were employed, since the employer is no longer paying a percentage of the premium. Even with the additional cost, COBRA coverage is often less expensive than purchasing private individual coverage.
Three elements determine eligibility:
• Plans – group plans for 20+ employees
• Qualified Beneficiaries – A beneficiary (employee, spouse or dependent child) must be covered by a group plan prior to a qualifying event. Under certain circumstances, a retired employee, spouse, or dependent child may also be qualified.
• Qualifying Events
o Employees – Loss of job for any reason except gross misconduct, or a reduction in hours worked.
o Spouses – Covered employees’ loss of job for any reason except gross misconduct, or a reduction in hours worked by the employee. Covered employee becoming entitled to Medicare, divorce or death of the covered employee.
o Dependent children – Same as for the spouse, plus loss of dependent child status (COBRA FAQs, 2016).
With recent changes in the Affordable Care Act, and more changes likely, is COBRA the best choice for health care coverage after suffer group coverage loss? A recent report from National Public Radio pointed out several things to consider when making this choice. Some employers offering coverage on the ACA exchanges will be dropping out of certain markets or states next year. The federal government may not continue making
cost-sharing payments which is causing many employers to reconsider their participation.
“‘Even if you live in a state or a market that still has multiple carriers participating
in it, if the Trump administration decides to pull the plug on cost-sharing reduction payments, all bets are off,’ says Sabrina Corlette, a research professor at Georgetown University's Center on Health Insurance Reforms’” (Andrews 2017).
Choosing to continue coverage under COBRA would provide more certainty and stability. Even with the increased expense it may be a better option than securing coverage through a market exchange that may soon no longer be available.
HIPPA
The Health Insurance Portability and Accountability Act, passed in 1996, requires regulations protecting the privacy and security of certain health information. Health care providers today use a variety of computerized systems and electronic health records which increase efficiency, but also greatly increase the risk of security issues.
The HIPAA Privacy Rule guards the privacy of individually identifiable health information, or protected health information (PHI). The Security Rule applies to PHI transmitted in electronic form and mandates that covered businesses establish and keep appropriate administrative, technical and physical safeguards in place to protect e-PHI (HHS Office of the Secretary, 2013).
Serious and expensive consequences can arise from not closely following these mandated safeguards. An orthopedic clinic in Raleigh, NC had to pay $750,000 because of a HIPAA violation regarding improperly sharing patient data. The clinic allegedly released PHI for over 17,000 patients to a potential business partner without the required signed business associate agreement. PHI may not be released without authorization, without a business associate agreement this information was vulnerable to misuse or disclosure. The clinic released x-rays to a group who were going to transfer the images to electronic media in return they would remove and keep the silver from the x-ray films.
"’HIPAA's obligation for covered entities to obtain business associate agreements
is more than a mere check-the-box paperwork exercise,’" OCR Director Jocelyn
Samuels said in a statement. "’It is critical for entities to know to who they are handing personal health information and to obtain assurances that the information will be protected’" (Lagasse, 2017).
ERISA
The Employee Retirement Income Security Act of 1974 sets standards for voluntarily pension and health plans for private businesses to help protect people in these plans. ERISA mandates that participants in the plans must be provided with plan information regarding funding and features. Pension funds must be fully funded and grievance and appeal processes for participants must also be established. COBRA was an amendment to ERISA. Usually ERISA doesn’t cover group plans for government, churches, or plans which exist to comply with disability, unemployment or workers’ compensation laws (Health Plans & Benefits: ERISA, 2016).
Earlier this year the Supreme Court issued a decision that exempts faith-based hospitals from ERISA regulations. It was ruled that faith-based hospitals’ pension plans come under the church-plan exemption from ERISA. Several defendants in this case will not have to pay premiums to the Pension Benefit Guaranty Corporation, nor will they be required to fully fund their pensions in order to meet ERISA guidelines. Congress expanded the church plan exemption in the 1980s to include the pension plans of para-church entities. The Supreme Court held that if Congress had not meant for faith-based groups to qualify for the ERISA exemption, the focus could have been narrowed to prevent it. This ruling will set a precedent for many other cases around the country. If the Supreme Court had not held this opinion, defendants in this case could have been responsible for a $4 billion deficit in pension funding (Teichert, 2017).