Friday, March 24, 2017

New Update Maryland Employment Legislation

It ain’t over till it’s over…


Arguably the most active – and – fought over, piece of legislation this year in Maryland is HB0001/SB0230 – Maryland Healthy Working Families Act. Here’s where we stand today:

This sick and safe leave bill passed both a full House of Delegates and Senate vote; it is currently working its way back to the House for a first round to attempt reconciliation of the now two versions of the bill. The Senate passed several amendments (last year it did not get out of the Senate Finance Committee). Ten amendments were offered in the House and all but one was rejected. Current Senate amendments provide that businesses with 15 or more employees are covered but would apply to employees working at least 12 hours per week; requires accrual of leave at the rate of 1 hour of paid leave for every 30 hours worked, up to 40 hours per year. This bill has several other very proscriptive provisions on how, when and under what circumstances leave can be accrued used or denied. It does also include a pre-emption for future local jurisdiction laws. The preemption clause along could sink any reconciliation.
As a reminder, and with the changes made by the Maryland Senate, here are some of the many provisions of this bill:

  • Applies to businesses with 15 or more employees. (Businesses with fewer than 15 employees must provide unpaid sick and safe leave, and therefore must track how much unpaid leave these employees use.)
  • Applies to employees working at least 12 hours per week, or 24 within a two-week pay period.
  • Provides 1 hour of sick and safe leave for every 30 hours worked.
  • Allows an earnings cap of 40 hours per year and usage and accrual caps of 72 hours per year.
  • Allows a waiting period for use of leave for the first 106 calendar days of employment. (This was a small concession to exclude "seasonal" employees as eligible for paid leave.)
  • Requires carryover of accrued leave up to 40 hours year to year. Carryover is not required if all leave is granted in a lump sum at the beginning of the year.
  • Allows "borrowing" of time before earned/accrued.
  • Requires reinstatement of unused leave if a separated employee returns within 37 weeks of leaving (unless unused leave was paid out upon termination).
  • Requires allowing use of leave for non-illness –related reasons.
  • Includes grandparents, siblings, etc., in definition of "immediate family".
  • Only allows verification/justification of leave if used for more than 2 consecutive shifts.
  • Changes "presumptive violation" to "rebuttable presumptive violation". Small consolation. Before the bill required the assumption the business was in violation of the law from even a small, obviously unintentional recordkeeping error. So, now, the bills allows the business to "rebut" that presumption. And, the penalties are higher than any other employment regulation penalties in the state.

Meantime, the Governor’s paid leave bill sits in committee with absolutely no action. 

Not surprisingly, Governor Hogan has proclaimed this bill "dead on arrival". The question now is whether or not enough votes are available for an override of that veto should we come to that.

If any version of this bill passes, businesses will need to very carefully review all the provisions in detail in order to ensure compliance. This goes far beyond a simple paid leave law. It dictates who, how, and when leave must be earned, accrued, carried over and under what specific circumstances foreseeable leave can be denied. It is more extensive than any paid leave law in the country.

Thursday, March 16, 2017

Health Insurance vs. Health Care

They are not the same

Prior to the Affordable Care Act going into effect in 2010 (was it really that long ago?) I remember all the hype, all the debate and the marketing touting it as a huge improvement in health care for Americans. As someone who was actually paying attention in the early years to what this law would actually do, I was always surprised at this argument and how so few were listening to those who actually "got it". The ACA did very little, if anything, to improve health care, and wasn’t really intended to. It also didn’t do anything, and wasn’t really intended to reduce the cost of health care. In some ways, it increased the cost of health care (through various taxes and fees).

The ACA was intended to lower the cost of, and therefore increase access to health insurance. The reasoning was that if more people could be covered by health insurance, more people would be able to access quality health care. Noble intentions. Unfortunately, for various reasons, those intentions have not been realized. Access to health insurance does not equate to access to health care. While more people may be able to afford an insurance policy, that does not mean they can afford to get actual health care. High deductibles, co-pays and co-insurance make it very difficult and sometimes impossible for many people to actually use their newly gained health insurance. Maximum out of pocket limits be damned – if you can’t afford to go the doctor, or get the treatment your doctor recommends because you don’t have an extra $2000 or more (for an individual) laying around to cover the deductible, and then the additional costs of co-pays and co-insurance, you still don’t have access to health care. Those figures rise with plans with lower premiums and with family plans.

Over the past seven years, there have been numerous analyses on the failures – and some successes – of the ACA, and I won’t reiterate them here. If you’re not aware of this, you can easily find them through a simple Google search. But suffice it to say that whether you are talking about how the law affects individuals, or the failures of the risk corridor plans, or any other aspect of the law – it isn’t working anywhere near its original goals.

Now, with the release of the Republican’s initial try at repealing and replacing the ACA – the American Health Care Act – the debate is raging again. 

The problem is that the real issues are still not being addressed. First and foremost, let’s be clear: this is about the individual market – meaning insurance purchased by people who do not have access to an employer’s group plan or some government program. The group market (employer-based insurance) works quite well. Yes, premiums are rising in the group market as well, because the cost of medical care is high, and continues to rise. But insurance available through most employers is by far less expensive and covers more than plans available to individuals.

As someone with first-hand experience with insurance in the individual market, I can tell you that it is not "affordable" and I have difficulty seeing how someone of lesser means is able to get quality health care on a regular basis with current individual plans. Whether you purchase a plan through an Exchange, or directly from the insurance company, the plans are all the same (as required by the ACA). 

I believe the most important issue underlying this whole debate/discussion is that the cost of medical care in the United States is ridiculously high and keeps growing. No insurance policy is going to cure that problem. No law that pretends to extend access to insurance coverage to everyone is going to cure that problem. And yet, there doesn’t seem to be much effort expended on addressing this issue – partly because there continues to be this ridiculous penchant for equating health insurance with health care.

Will the American Health Care Act be any better, once it reaches its final form? Probably not. Any such efforts (whether the ACA or the AHCA) will continue to fail for many reasons. Until we address the actual cost of medical care, there doesn’t appear to be any solution that will work for everyone or even most everyone.

What’s the answer? I have no clue. But, then again, I’m not being paid to find the solution; I haven’t been elected by my constituents to find the solution. And frankly, I doubt the people who are being paid, and who have been elected, are capable of finding that solution. Another thing people neglect to understand is that none of these people have to worry about their health insurance. I’d be willing to bet none of them really understand what current individual health insurance policies actually cover or cost. If they’ve ever had to purchase an individual plan (I doubt few of them have), they can afford to purchase the highest level plans and can afford the huge premiums attached to those plans. The rest of us can’t. 

I’d love to sit down and have a discussion with the likes of Nancy Pelosi or Paul Ryan to hear what their health insurance plans cost them, what they cover, and most importantly, if they truly understand all the issues facing people who must purchase their insurance on the individual market.

Thursday, March 2, 2017

U.S. Chamber Report on NLRB Policies

10 of the worst…..

The U.S. Chamber of Commerce recently released a report highlighting what it feels are 10 of the worst NRLB policies the NLRB adopted during the Obama administration.

Here are the 10 the report cites:

  • Authorizing small groups of employees – or "micro unions" – to organize
  • Allowing workplace "ambush" elections over whether to form a union in as few as 10 days
  • Exposing businesses to "joint employer" liability for workplaces they do not control and workers they do not employ
  • Prohibiting class action waivers in employment arbitration agreements, which are intended to speed the resolution of workplace disputes and discourage costly class action litigation
  • Restricting unions and employers from voluntarily agreeing to resolve unforeseen bargaining issues via "management rights" clauses
  • Forcing employers to bargain with a union before the two parties even reach a first contract
  • Mandating that employer-owned email systems may be used for union organizing activities
  • Invalidating a wide range of employee handbook policies to prevent obnoxious, obscene, and harassing behavior
  • Eroding the confidentiality of workplace investigations
  • Expanding picketing rights at the expense of employers’ private property rights

I’d add the unending number of decisions related to social media use by employees and the also constant decisions defending harassing and discriminatory behavior on picket lines and/or during union organizing efforts.

This report speaks to the trend of the board to upend and overturn long-standing labor policies that had been supported by both Republicans and Democrats and that now are clearly weighted in favor of unions. Regardless of how one feels about unions or the NLRB, it was never the intent (I don’t believe) for the National Labor Relations Act to be that unbalanced.

Restoring the proper balance to the board, and therefore to labor policies, should be a priority of not only the current administration, but to our elected officials in general – regardless of party.