What the devil is Massachusetts doing to employer health care contributions?

Last week, Governor Baker signed the awkwardly named, “An act further regulating employer contributions to health care,” which has raised many excellent questions. Once again we think about Bismarck’s quote: laws are like sausages, it is better not to see them being made. Except when laws are passed without regulation or key details, you have to dive into the sausage factory… . Where did this bill come from? Short answer: Governor Baker wanted spending cuts to MassHeath along with an increase in the employer contribution. The House and Senate decided to just implement the increased employer contribution without reforms or regulations. The Governor signed that bill. Surprise! On July 19, Governor Baker issued recommendations for amendments to the State’s Fiscal 2018 budget. A short attachment suggested an increase in the employer medical assistance contribution (EMAC) and introduced the 5% employer fine. Governor Baker indicated that these two changes “must not be considered in isolation of other measures needed to manage spending in the MassHealth program. Absent other reforms, this proposal imposes an unfair burden on Massachusetts’ employers without making the structural reforms essential to MassHealth’s long-term sustainability.” On July 26, the Massachusetts House and Senate both rejected the Governor’s amendments, reenacted the bill, and added an “emergency preamble” that stated: “Whereas, The deferred operation of this act would tend to defeat its purpose, which is to establish forthwith certain employer healthcare contributions, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.” There was hopeful speculation from the business community that, given the rejection of his recommendations, the Governor would not sign the reenacted bill. Therefore, many were surprised that the Governor signed the bill after indicating that these changes, without other reforms, imposed an unfair burden on employers was unexpected. The “emergency” adoption of this bill contributed to the lack of information employers are now facing. Questions? You bet! Here are some questions we received last week. We hope this provides clarity, based on the limited information still available: Q: In your email, you said “All Massachusetts employers who have more than five employees must pay a fine – 5% of the employee’s wages – for every employee who receives his or her insurance through MassHealth.” Does this mean that if an employee elects MassHealth instead of the employer-sponsored insurance, the employer has to pay a 5% fine? A: Yes – the employer will pay a 5% fine for each employee who receives health care through MassHealth or subsidized coverage instead of through the employer-sponsored plan. Q: How can the employer know if the employee receives his or her insurance through MassHealth? A: The Governor’s recommendations included some details about employer reporting and tracking. Baker’s recommendations indicated that employers: 1) would need to respond to ad hoc requests from the state; and 2) would need to complete, annually, a “Health Insurance Responsibility Disclosure” form.” However, none of this detail was carried forward into the enacted bill.The bill does not specify what obligations the employer will have with regard to tracking and reporting employee coverage. According to the bill, the department of unemployment will create and publicize regulations that address details including how many days of non-employer coverage will trigger the fines and how the fines will be paid. It is possible that the regulations will also clarify any employer obligations with regard to tracking and reporting employee coverage. We will monitor the developments of the regulations and communicate details as they become available. The fines will be implemented January 1, 2018 – that’s less than five months away. Therefore, employers may not have much time between the publication of the regulations and the effective date of the new law. Employers may wish to start gathering data now to get a sense as to the size of the fines they may face. They may wish to poll employees who are not enrolled in the company-sponsored plan to understand the outside coverage the employee has elected. Q: Does the employer still pay a fine if the individual is covered under MassHealth for free? A: Very few individuals are eligible to receive MassHealth at no cost. We have included a chart that reviews eligibility and premiums. Note, too, that most individuals who are otherwise eligible for MassHealth will be required to take their employer’s plan if the plan meets the basic coverage criteria and the employer pays at least 50% of the premium. Therefore, if your company pays at least 50% of premiums, you will generally not be subject to the fines.The bill does not currently address whether employers would be subject to fines for individuals who receive MassHealth at no cost. We do know that the fines are paid for non-disabled workers. If an employee receives MassHealth due to his/her disability, the employer would not be subjected to the fine for that employee. Q: I read there is a $750 cap on the fine per employee. Is this true? A: Yes, this is true. The bill indicates that the fine is 5% of an employee’s wages. However, it defines wages in this context as the “unemployment insurance taxable wage base,” which is $15,000. $15,000 * .05 = $750 Q: I understand that the fines are effective January 1, 2018. Will Massachusetts employers be subject to them year after year? A: The bill contains “sunset” language, which indicates these fines will be repealed as of 12/31/19. It’s quite possible that, between now and 12/31/19, the sunset language will be removed or modified to push the date further out. However, as of now, these fines are effective for a two-year period only. Q: Can I question any fines? Is there an offset? A: Yes, The Department of Unemployment Insurance (DUI) will levy the fines and there is procedure to request a hearing. The bill also calls for DUI rates to remain the same to offset the increases in employer contributions for the 2 years the bill is in effect. Q: What makes an individual eligible for MassHealth? A: First, the applicant or member must be a resident of Massachusetts. Second, all those applying in the household must have a social security number or be applying for an SSN. After those basic requirements are met, eligibility is then assessed using a number of factors including citizenship, age, disability, income level, and the availability of other health coverage. We have included a chart that reviews eligibility for the different types of MassHealth coverage. We will continue to communicate with you as we learn more about this bill. In the meantime, please reach out to us with any of your questions!

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Charlie Baker as the Taxman: The so-called fair share comes roaring back

If you drive a car, I’ll tax the street,
If you try to sit, I’ll tax your seat.
If you get too cold I’ll tax the heat,
If you take a walk, I’ll tax your feet…

George Harrison, The Beatles

 

Massachusetts Governor Baker has included a new tax assessment on businesses in his 2018 proposed budget and it is a whopper.  The proposed tax assessment would impact businesses with 10 or more employees if the employer does not contribute at least $4,950.00 toward each full time employee’s healthcare and have an 80% participation in its group health plan.  This health related tax assessment would require a payment of $2,000.00 per full time equivalent employee.  Full time employees are defined as those who work 35 hours or more per week.  The proposal revives the “fair share” that was eliminated under the Affordable Care Act (ACA)—with a hefty increase.  The goal is to raise $300 million to offset the costs of the projected 1.93 million enrolled in MassHealth for 2017. Baker is also proposing various caps paid to providers in an attempt to limit costs and close the gap on discordant charges for the same services.

The short version of how this happened: Way back in 2006, before the ACA, Massachusetts employers with 11 or more employees were required to offer health care coverage to full-time workers or pay a fee of $295 per worker. If an employer offered health insurance, employees were ineligible for MassHealth.  To comply with the ACA, the employer fee and the restriction in choosing MassHealth were eliminated.  Moreover, the ACA federal mandates to fine employers were pushed back and some eliminated. In Massachusetts that meant more people enrolling in MassHealth and less money to fund it. Can you say quagmire?

The attempt to shift this enormous burden onto the backs of business has understandable resistance.  The sky rocketing cost of insurance is the central issue and throwing more money at insurance costs makes no sense.  The interplay between the ACA and MassHealth has problems as well– Baker has requested a waiver from ACA provisions that conflict with or add unnecessary costs to the state. And finer points of Baker’s 2018 assessment must be addressed. For instance, what if employees reject employer offered coverage (perhaps in favor of coverage from a spouse) and participation drops below 80%? Under the current provision, the employer will still be required to pay the assessment.

The legislature needs to carefully examine this proposal and its massive potential impact on business.  Did I just write “carefully examine” in the same sentence as the legislature? Desperate times… .We urge you to contact your representatives in the Senate and House. Call if you can, email or write if you cannot. We will monitor the progress of this proposed tax assessment and continue to update our clients on any new developments.

 

Now what?

by Attorney Angela Snyder

What Happens Now?

Change comes with every Presidential election and this one could be seismic.  Naturally, when we heard the outcome, we began questioning, what does this mean for employment laws?  What will happen to the Affordable Care Act?  What will happen with the new overtime rules?  Should businesses ignore the December 1 deadline and just wait to see what happens next? For Massachusetts, California, Maine and Nevada employers, and 25% of the country, employees will now have access to legal recreational marijuana.  How will the workplace be affected?

While we cannot read the future, we spend much of our day watching laws change and examining legal trends.  Here are our predictions  and advice for weathering the coming changes.

The Overtime Rules

As a threshold matter, Donald Trump will become the President on January 20, 2017, after the new overtime rule takes effect. Although Trump’s Secretary of Labor will likely roll back many of President Obama’s employment-related initiatives, the breadth of these changes remains to be seen. Trump has not released a specific policy or position, although he has said he favors “a delay or a carve-out of sorts,” but only for small businesses. This is far from a guarantee.

Additionally, as we have advised over the last year, the FLSA White Collar exemptions require a 3 part test.  Employees must receive a salary of at least $455 per week (rising to $913) per week; they must receive the same salary no matter how many hours they work; and they must pass a strict duties test.  The new FLSA rule set to take effect December 1, 2016, addresses only the minimum salary level portion of the test.  Many employers audited all of their exempt positions in preparation of these new rules.  To the extent employees were reclassified because their duties did not meet the requirements of one of the White Collar exemptions, a rollback of the new salary levels will be irrelevant.

In late September, two lawsuits were filed in federal court in Texas, and legislation that would delay the effective date of the rule until June 2017 passed the U.S. House of Representatives.  None of the legislation will pass into law before the new rules go into effect.  As for the lawsuits, there is a hearing this week in an action to challenge the rule; and it is possible the presiding judge will issue an injunction at that time.  However, the judge hearing the case is an Obama appointee, which means it is more than likely that on December 1, 2016, by law, all exempt positions must receive a salary of at least $913 per week.

Why comply, when there is a chance the new rules will be rolled back? As a quick reminder, under the FLSA, non-exempt employees who are improperly classified will be owed back wages and liquidated damages (equal to the back wages owed), and the auditing agency or court will look back two years to determine the overtime and wages owed.  If they believe the employer intentionally misclassified employees, that period extends to three years.  Under Massachusetts law, employees are entitled to treble damages.  These are not small penalties and often result in fines in the tens or hundreds of thousands of dollars.

For this reason, we advise all of our clients to comply with the new overtime rules on December 1.  If the new administration changes the rules, these employees can always be reclassified as exempt at a later date.  

Affordable Care Act

Trump and Republicans in Congress have stated that they will seek to repeal ObamaCare within Trump’s first hundred days in office. There are roughly 1,000 pages of the ACA and its related provisions.  A full repeal will be incredibly difficult, but it is possible.  It does look like Trump’s intention is to replace the ACA with some other program, which means 2017 should be interesting for employers. Trump has also stated he would keep the pre-existing condition mandate and the availability of insurance for children until the age of 26, which sounds a lot like…ObamaCare.

Marijuana Use

With the advent of the edible marijuana industry, a gummy bear is no longer a gummy bear.  Recreational pot shops are coming to Massachusetts in 2018.  Wondering how to prepare your workplace? Here are some things to know when it comes to creating policies on marijuana use:

1. There is not an accurate test for marijuana intoxication.  An employee who uses marijuana outside of work (even the day before) will likely fail a blood test, even if the use was totally outside of work, and he or she was not intoxicated at the time of testing.  Given the legalization of medical marijuana in particular, this has resulted in a number of lawsuits.
2. Although marijuana has now been legalized in a number of states, it is still considered a ‘controlled substance’ under federal law.  As such, at least for the time being, marijuana use remains illegal under federal law. Thus, any federal employer or private employer that receives federal monies may have to conduct testing under federal guidelines.
3. Finally, only New Hampshire and Arizona have laws protecting medicinal marijuana use and preventing employers from discriminating against marijuana users.  This will likely change now that Massachusetts and California have legalized marijuana.

So, what does all of this mean?  In the states that legalized marijuana in 2012, there have been lawsuits filed by employees who have been terminated after a positive drug test.  The outcome of these cases has been surprisingly consistent, and offered employers a fair amount of latitude when it comes to drug testing and terminating employees for marijuana use.  This has been true even in states where recreational marijuana use is legal.  However, the courts up to this point have relied on the fact that marijuana remains illegal under federal law as a major justification for their decisions.

Now that legal access to recreational marijuana exists in several states, it is likely the federal government will have to look seriously at declassifying marijuana as a Schedule I drug.  This, in turn, will likely influence legal decisions.

Although the Massachusetts recreational marijuana law does not directly alter the state laws governing employer drug testing, it definitely makes sense to review your drug testing policies in light of the new law. At a minimum, policies that call for termination or other discipline for an employee’s use of “illegal” drugs may need to be revised, given that it is no longer illegal for adults to use marijuana in Massachusetts.

As to what amount of marijuana use should result in a termination, Colorado and Washington, where recreational use of marijuana is legal, set the level of impairment at 5 nanograms of active tetrahydrocannabinol (THC) based on a set amount of blood. Pennsylvania set a 1 nanogram threshold; Nevada and Ohio opted for 2 nanograms.  States are all over the map because setting a specific impairment threshold with THC is not as clear-cut as it is with alcohol. THC can remain in a person’s system for days and weeks. That means blood tests alone are unreliable.

In 2014, after marijuana was legalized in Washington, fatal crashes where the driver was found to have THC in his/her blood doubled from around 8% to 17%.  Now that so many states have legalized marijuana, the U.S. is going to be forced to find a national standard for sobriety that is based on real science.  However, until that happens, testing for marijuana use will continue to be problematic.

Recommendations

Private employers have latitude in terms of behavior they can prevent in the workplace.  Just as you can prohibit employees from having alcohol in the workplace, you can prohibit them from possessing or being under the influence of marijuana in the workplace.

Where your testing is limited to reasonable suspicion testing, your risk of an employee claim of wrongful termination based on a positive drug test is much lower than if you conduct random tests.  Although an employee may dispute the validity of your test, if you also have documented reasonable suspicion that an employee was under the influence while at work, you will be able to show that your action as an employer was based on a reasonable and good faith belief that the employee was a danger to him/herself or others.

As for smoking, you can continue to prohibit smoking marijuana and/or ingesting marijuana just as you can prohibit smoking cigarettes or drinking alcohol.

What About the Rest?

Without question our clients should expect some change in the employment law landscape with the new administration, and it will likely be more employer friendly. However, as we observed during the election, Mr. Trump has shifted positions on many issues, many times.  Trump’s appointments to the DOL, the EEOC, NLRB, and OSHA, not to mention the Supreme Court, will be far more telling of the direction of employment related laws in the coming years.

We can help: info@foleylawpractice.com or 508-548-4888