Monthly Archives: May 2014

Special Open Enrollment Period Under Federal Health Care Marketplace for COBRA

insuranceA year ago, the Department of Labor (DOL) released model general notice and model election notice forms for providing COBRA notices to employees in anticipation of the availability of alternative individual health insurance coverage becoming available beginning January 1, 2014 through the new health insurance exchanges or marketplaces created under the 2010 health reform law.  But the interplay between electing COBRA coverage or coverage under the new marketplaces is complicated, and confusion has resulted among those eligible for COBRA coverage.

So, on May 2, 2014, the Department Of Health & Human Services announced a special open enrollment period of May 2, 2014 through July 1, 2014, under the federal marketplace allowing an individual currently on COBRA to voluntarily end COBRA coverage and get coverage through the federal Marketplace, if otherwise eligible for the federal marketplace coverage.  State marketplaces are encouraged, but not required, to also offer a special enrollment period.

At the same time, the DOL issued proposed regulations removing older model notices from appendices to the COBRA regulations and providing that the approved notices and future changes to the notices will be posted on the DOL website.  This will allow faster updating of the notices when needed because amendment of the regulations themselves will not be required.  The most recent model notices on the DOL website are here:  model general notice and model election notice.

The EEOC Strikes Again

lawsuit-letterIn a suit filed in February, the Chicago District Office of the Equal Employment Opportunity Commission (EEOC) argued that the separation and release agreements used by CVS Pharmacy were “overly broad, misleading, and unenforceable.” Specifically, the EEOC argued that provisions in CVS’ agreements infringed on employees’ rights to file discrimination charges and participate in EEOC investigations. See our February 2014 post, EEOC Files Suit Over Separation Agreement Language for more details on that case.

Now, a different district office of the EEOC has filed a similar suit against another employer. The Phoenix District Office sued CollegeAmerica Denver on April 30, 2014 alleging that CollegeAmerica violated federal age discrimination laws by including various provisions in its form separation and release agreements impeding employee rights. The EEOC objects to CollegeAmerica’s broad release language, provisions limiting an employee’s ability to assist others with claims, and provisions requiring the employee to represent that he or she has not filed administrative claims or lawsuits.

Separation and release agreement language clearly is a “hot button” issue for the EEOC. Employers should review their form release agreements to ensure that they specifically permit an employee to file charges and participate in investigations by governmental authorities and do not place other impermissible limits on employee rights.

EEOC Files Suit Alleging Attendance Policy Failed to Accommodate Disabled Employees

sealOn Friday, the EEOC filed suit against AutoZone, alleging that the car repair company violated the Americans With Disabilities Act by applying its attendance policy in a way that failed to accommodate certain disability-related absences.  This is the EEOC’s fourth disability discrimination case against AutoZone in the last 5 years.

Under AutoZone’s policy, employees received points for absences, with 12 points resulting in termination.  According to the EEOC, the policy did not make any allowances for disability-related absences (such as early departures by a diabetic employee who had insulin reactions), which the EEOC has alleged constituted a failure to accommodate.

Employers often — wrongly — assume that the fact that an employee doesn’t qualify for (or has exhausted) FMLA leave means that he can be terminated for his absences.  However, if the reason for the absence relates to the employee’s medical condition, it’s critical that the absence be considered under an ADA reasonable accommodation analysis as well.

Do Employees Have a Right to Use Company Email to Organize?

Otypingn Thursday, the National Labor Relations Board re-opened the question of whether workers have a right to use their employers’ communications systems (including email) for union organizing and other protected activities.

In 2007, the NLRB handed down its decision in Register-Guard, holding that employees don’t have the right to use employer email systems for non-business purposes (such as union organizing).  Since then, many employers have implemented policies requiring that email only be used for business purposes.

The question arose again in 2013 when Purple Communications was accused of committing an unfair labor practice for prohibiting the use of company equipment for non-business purposes. The Administrative Law Judge relied on Register-Guard and dismissed the charge; however, both the NLRB’s General Counsel and the Communications Workers of America filed exceptions, encouraging the NLRB to overrule Register-Guard and find that employees who use email for business purposes have the right to use it for union or organizing activity. In response, the NLRB has invited the public to weigh in (by way of amicus briefs) on whether the Board should overrule Register-Guard .

Employer groups will no doubt come out strongly in favor of upholding Register-Guard , but with the current composition of the NLRB, the employer-friendly holding of Register-Guard might be short-lived.