Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

Recently, members of McNees Wallace & Nurick LLC's Transportation, Distribution & Logistics Group issued an Alert containing two articles that will certainly be of interest to many employers.  The Alert can be accessed by clicking here.

The first article, by Barbara A. Darkes, summarizes Pennsylvania's implementation of the new medical certification requirements for individuals holding Commercial Drivers Licenses. 

The second article, by James J. Franklin, summarizes a new law which bans texting while driving on all Pennsylvania roadways effective March 9, 2012. 

Employers should review these developments carefully and revise their policies as necessary. 

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The past couple of weeks have been busy ones for the Department of Labor (“DOL”), the Department of Health and Human Services (“DHHS”) and the Department of Treasury (“DOT”) (collectively, the “Departments”). Since February 9, 2012, the Departments have issued two sets of final regulations and a Technical Release bulletin, providing some long-awaited guidance on a variety of requirements under the federal Patient Protection and Affordable Care Act (“PPACA”), the health care reform legislation signed into law under President Obama in early 2010. Links to the regulations, the Technical Release and additional materials can be found on the DOL’s PPACA Regulations and Guidance web page.

Technical Release Regarding Automatic Enrollment, Employer Shared Responsibility and Waiting Periods

On February 9, 2012, the Departments issued Technical Release 2012-01, which provides information regarding the PPACA provisions governing automatic enrollment, employer shared responsibility and the 90-day limitation on waiting periods. The Technical Release provides a Question and Answer discussion on each of these issues, including approaches that the Departments are considering for future regulations.

Importantly, the Departments also announced that the automatic enrollment guidance will not be ready to take effect by 2014. Until final regulations are issued and applicable, employers are not required to comply with this requirement. Keep an eye out for proposed regulations on each of these requirements under PPACA.

Final Regulations Regarding Summary of Benefits and Coverage and Uniform Glossary

On February 14, 2012, the Departments issued final regulations implementing the disclosure requirements under PPACA, which include the requirement to provide a Summary of Benefits and Coverage (“SBC”), notice of material modifications and a uniform glossary. This information is intended to help plan participants better understand their health coverage, as well as other coverage options. 

In part, the regulations set forth 12 required content elements for an SBC, as well as appearance requirements. The Departments also provided supplemental information, including an SBC template, instructions and other related materials, which can be found on the DOL’s PPACA Regulations and Guidance web page.

Review the regulations carefully for additional information on who must provide each required disclosure, when the disclosures are required, what content must be provided, what format disclosures must take, and acceptable methods of disclosure. These requirements become effective on the first day of the first open enrollment period beginning on or after September 23, 2012. Failure to provide the information required can result in a significant monetary penalty, including a fine of up to $1,000 per failure.

Final Regulations Regarding Coverage of Preventive Services

On February 15, 2012, the Departments issued final regulations addressing the exemption of group health plans and group health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under provisions of PPACA, such as approved contraceptive methods and sterilization procedures.

The final regulations grant the DHHS’ Health Resources and Services Administration the discretion to exempt group health plans established or maintained by certain religious employers from the requirement to cover contraceptive services. For purposes of this exemption, a “religious employer”: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described under the Internal Revenue Code. 

In addition, the regulations provide a temporary, one year enforcement “safe harbor” for employers who are non-exempted, non-profit organizations with religious objections to covering contraceptive services whose group health plans are not grandfathered health plans under PPACA. 

Responding to the most recent controversy regarding PPACA, the Departments are expected to issue additional regulations addressing the religious objections of non-profit religious organizations who do not qualify as a “religious employer” under the narrow exemption. These regulations are expected to require the insurers of such organizations to cover contraception if a religious organization chooses not to do so. In such cases, the insurers would be expected to offer contraception coverage to women directly and free of charge, with no role for their religious employers who oppose contraception.

If you have any questions regarding these recent guidance materials or any other aspect of PPACA, please consult our prior posts or contact any of the attorneys in our Labor and Employment Practice Group.

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A recent Third Circuit Court of Appeals decision has made clear that supervisors in public agencies may be subject to individual liability under the Family and Medical Leave Act (FMLA). The court previously has held that public employers, private employers, and supervisors in the private sector may be liable for FMLA violations. Now, for the first time, in Haybarger v. Lawrence County Adult Probation and Parole, the court has extended FMLA liability to supervisors in the public sector.

The facts in Haybarger may seem eerily familiar to many of you. A public-sector employee took FMLA-covered absences for a number of different health issues. The supervisor, who served as the Director of the Probation and Parole Office, believed that the employee was under performing and that her attendance problems contributed to her poor performance. The supervisor wrote in the employee's performance evaluations that she needed to improve her overall health and cut down on the days that she missed due to illness (red flag!). The supervisor also formally disciplined the employee, placing her on probation for six months, which required weekly formal progress assessments and monthly meetings. While it is unclear who specifically made the ultimate decision to terminate the employee, she was terminated when her performance did not improve.

Not surprisingly, following her termination the employee brought suit raising a number of claims against the County, the Probation and Parole Office, and the supervisor. After many of the claims were dismissed, and a few were settled, all that remained for the court to decide was the FMLA claim against the supervisor. The supervisor argued that he was not liable under the FMLA.

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In June 2011, the Pennsylvania General Assembly enacted a law amending the Pennsylvania Unemployment Compensation Law (“Law”). Many of the amendments' provisions took effect January 1, 2012. In addition to providing for a severance pay offset against unemployment compensation benefits, the amendments added additional "active search for employment" eligibility requirements for claimants to collect UC benefits.

Specifically, a claimant who applies for UC benefits on or after January 1, 2012 must establish that he is in “active search for suitable employment” or, alternatively, that one of the exceptions to the requirement applies. The Law provides an exception to the active search requirement for a claimant “who is laid off for lack of work and advised by the employer of the date on which the claimant will return to work.”

The Pennsylvania Department of Labor and Industry (“L&I”) established specific steps that a claimant must take to satisfy the active search requirement. L&I also added the caveat that, to be relieved from the active search requirement under the layoff/lack of work exception, the claimant must have a projected return to work date within 28 calendar days of when he last worked. The addition of the 28-day requirement caused significant concern for employers who engage in seasonal layoffs, particularly those in the construction industry. To be sure, these seasonal layoffs often last longer than 28 days. And with the 28-day recall requirement, employees laid off seasonally because of a lack of work would not qualify for the exception and would need to comply with the new active search requirements.

The cause for concern, however, was short-lived.

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Recently, Andrew L. Levy, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group published an article titled: Truck Drivers Hauling Material Between a Turnpike Construction Site and a Borrow Pit Adjacent to the Project Are Entitled to be Paid the Prevailing Wage. 

The article, which can be accessed by clicking here, discusses a recent Commonwealth Court of Pennsylvania decision that clarified the scope of coverage under the Pennsylvania Prevailing Wage Act with respect to truck drivers and other workers whose work in relation to a prevailing wage project extends beyond the actual project boundaries.

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