Current HR game plan is one of wait and see

Game planning for the sea of change that continues to wash ashore has human resource departments primed to make adjustments, primarily when gathering the various pieces to the puzzle that is the Affordable Care Act.

With perhaps the biggest decision related to "ObamaCare" – pay or play – still more than two years away for larger employers, and even the interim guidance received thus far still subject to change, the take-home lessons still appear to be "tread lightly," according to Jane Clark, chief operating officer for QTI Human Resources. While some guidance is being finalized, both on the state (concealed carry) and federal levels, the Great Recession lament about "uncertainty" still applies.

Clark and Mike Gotzler, general counsel for QTI Human Resources, have plenty of empathy for employers. With a law that's more than 2,700 pages long, Gotzler said one would think that legislative intent would have been described with some specificity, but three federal departments – Health and Human Services, Labor, and the Treasury (IRS) – remain occupied with breaking things down into bite-sized, digestible chunks. Even when rules are published, they often are in an interim format that could change. Clark said attorneys well-versed in employee benefits law are combing these departments to get some answers, but critical things remain undefined.

Assuming the new health care law survives ongoing legal challenges, one of the most immediate challenges for employers is the lack of guidance on non-discrimination rules. Under the Affordable Care Act, employers with health plans cannot "discriminate" with respect to types of coverage and benefits they offer to employees.

In the past, these rules only applied to employers with self-funded health plans, but now apply to essentially all group health plans. Translation: You can't offer some employees more generous benefits or contribute a larger percentage toward premiums than you do for others, even if it's viewed as a retention tool rather than being bias-driven.

One wonders how this will affect the eternal practice of paying some employees more than others (not yet deemed discriminatory), but the looming penalty for non-compliance is $100 per day, per discriminated employee. The ability to apply that penalty has been delayed until the final rules are issued, but they could come at any time. "Many employers will have to make some pretty significant changes to their health insurance offerings to avoid these substantial penalties, and probably in pretty quick order," Gotzler said.

Attorney Mike Taibleson, a team leader in Whyte Hirschboeck Dudek's employee benefits law practice, said the biggest recent development involves new HHS guidelines under the Affordable Care Act characterizing more women's health services as preventive services, which have to be provided in health plans without a deductible. Services like mammograms and screening for cervical cancer already had to be covered without cost sharing, but starting in 2012 they will be joined by well-woman visits, testing for the human papilloma virus and other sexually transmitted diseases, support for breast-feeding equipment, contraceptives, and domestic violence screening.

There are exemptions for religious employers, but the idea is that if these services are provided without cost sharing, it makes them more accessible and saves health costs down the road. "There will be some upfront costs, obviously, that someone will pay, but down the road there will be savings," said Taibleson.

Cynthia Van Bogaert, partner and chair of the employee benefits practice group at Boardman Law Firm, said the game plan approaching 2014 should begin with an analysis of all benefits, not just the major medical plan. Among the considerations is whether existing wellness plans are in compliance with health care reform.

"It just adds another layer of requirements," Van Bogaert stated. "If someone has been offering a wellness program, just the same as a major medical plan, they have to comply with COBRA and other laws."

Smaller employers got a reprieve in 2011 from W-2 reporting of the value of health benefits, but with only a partial reprieve for 2012. It still looms on the horizon for large employers, defined as more than 250 or more W-2 employees in the prior year. A number of things have to be factored into that calculation, including the value of wellness and employee assistance programs, and flexible spending accounts. For the time being, health reimbursement arrangements do not have to be valued.

"It's a total dollar figure and it has to be per employee," Van Bogaert noted. "So if I started in a single coverage for three months and then I switched to family coverage for the rest of the year, you have to eventually calibrate the reporting to reflect the cost for each of those."

In case you thought the decision regarding grandfathered plans was over, employers have to continually monitor it because anytime there is a benefit change, employers should evaluate how it affects their grandfathered status, Van Bogaert counseled.

Concealed-Carry Law: At the state level, the new concealed-carry law, which goes into effect Nov. 1, is pretty straightforward. For businesses, the biggest decision is whether to prohibit concealed carry on their premises. Owners have a right to prohibit guns on site, but "if an employee drives a car, the employer cannot prohibit a weapon from being in the employee's own car in the employer's parking lot," Gotzler said.

If an employer decides to prohibit concealed carry on their premises, as most QTI clients intend to do, there is a posting requirement. They have to post signs to that effect at every public entryway to their facilities, and each sign has to be at least 5 by 7 inches in size. (More detailed guidance is available through the state Department of Justice.)

The only other consideration for employers who permit concealed carry is the promise of immunity. The legislation says that if you allow concealed carry on the premises, your organization will have immunity if something goes wrong. If you prohibit conceal carry, you won't have that same immunity, Gotzler indicated.

"Immunity is really, at this point, of unknown value," he stated. "It will be tested in the courts immediately, as soon as there is an incident with an employer that prohibits concealed carry. As soon as someone is shot or killed on premises and they were allowing it, there will be a lawsuit and the courts are going to have to determine how broad that immunity is."


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