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Prepaid Health Care
2014 Legislative Session: The End is Near(ing)

Let the conference games begin!

Just last week, we passed the Second Crossover deadline, which is the date that the Senate must complete its review of bills submitted by the House of Representatives, and vice versa.  Bills that have survived the Second Crossover deadline are now either (a) sent to conference or (b) sent to the Governor for his review/approval/veto.

At this point in the legislative session, there are still several bills remaining that would have an impact on how employers conduct business here in Hawaii.  Such bills include measures that address:

  • Minimum Wage
  • Payment of Wages
  • Temporary Disability Insurance
  • Workers’ Compensation
  • Healthcare Issues
  • Smoking in the Workplace
  • Criminal Background Checks
  • And others…

As I’ve noted in the “Running Updates” post here, the HEC Legislative Digest following Second Crossover is now available for viewing on the Legislative Updates section of the HEC Website.   In addition, HEC members can also access a Highlights article that discusses several of these key measures in more depth.

Conference hearings will begin this week.  As the Senate and House wrestle over the language of the pending bills, it will be interesting to see what type of concessions are made by either side and what type of legislation is ultimately passed.

 
2014 Legislative Session: Running Updates

Each year, the Hawaii Employers Council provides its members with updates on labor and employment law bills that are being addressed by the legislature. One of those documents, the Legislative Digest, is actually currently available to the general public, and can be accessed here:  HEC Legislative Updates.

Bills that are still alive as of the Second Lateral deadline address (1) the minimum wage, (2) payment of wages via direct deposit and pay cards, and (3) workers’ compensation drugs, fee schedule and settlements.

For the 2014 Legislative Session, the Legislative Digest is available for the following key deadlines:

  • Bills Introduced (available)
  • First Lateral (available)
  • First Crossover (available)
  • Second Lateral (available)
  • Second Crossover (available)
  • Sine Die  (available)
  • Veto Deadline (available)

As more deadlines pass, I will update this blog entry to indicate when the most recent Legislative Digest is available.

Other updates, such as articles providing a detailed explanation of several of the significant measures and talking points on certain bills, however, are available only to HEC members.

 
U.S. Supreme Court Upholds Patient Protection and Affordable Care Act

On June 28, 2012, the United States Supreme Court issued its long-awaited decision in NFIB v. Sebelius, a case which addressed the legality of the Patient Protection and Affordable Care Act of 2010 (“PPACA”).  The decision addressed two issues:  (1) whether an “individual mandate” was Constitutional and (2) whether an expansion of Medicaid was Constitutional.  The decision itself was very long – 193 pages total.  This blog entry attempts to parse down the lengthy decision into just a few short paragraphs…

The individual mandate provided that, beginning in 2014, (nearly) every American citizen will be required to maintain a minimum amount of health care insurance, whether it’s through their employer, the government, a third party, or their own means.   If an individual does not maintain the minimum amount of health care, the individual would be required to pay a penalty to the IRS.  The penalty amount will be based upon the individual’s income level, and by law, cannot exceed the cost of obtaining health care.

The Supreme Court ruled that such an individual mandate was lawful, under Congress’ broad authority to tax American citizens. In other words, in declaring the penalty to be lawful, the Court referred to it as a “tax.”  This tax, however, would apply only to individuals who do not have the required health insurance.

The Medicaid expansion essentially increased the amount of services that States would have to provide under Medicaid, and also increased the number of individuals who would be entitled to such coverage.  As part of the Medicaid expansion, however, the PPACA also provided that States that refused to go along with the expansion would lose all their Medicaid funding.

The Supreme Court ruled that this threat of loss of all Medicaid funding was unlawful.  Rather, the States could choose whether to expand Medicaid services.  States that choose to expand Medicaid will get additional funding to do so.  States that decline to expand Medicaid will not get any additional funding, but they will not lose their original funding either.

You can read copy of the Supreme Court’s decision (all 193 pages of it…) here:  NFIB v. Sebelius.  You can read about the PPACA on the Department of Labor’s website here.

 
Impacts Of New Federal Health Care Law On Hawaii Employers

As most people are aware, President Obama has signed landmark legislation in the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act, which, combined, require employers throughout the country to provide  health insurance for their employees.

Prior to the passage of these two new laws, Hawaii was the only state in the country that required employers to provide health insurance for their full-time employees.  Therefore, this new federal health care law actually has a “carve out” for Hawaii employers, which specifically states that the federal law does not “modify or limit the application of the exemption for Hawaii’s Prepaid Health Care Act” under ERISA.  Senator Dan Inouye and Representative Mazie Hirono have both gone on record to say that the intention of the federal law was to preserve Hawaii’s pre-paid health care laws.

It is possible, however, that this carve out will last only until 2014.  Specifically, in 2014, the federal law will require employees to either have health insurance or pay a tax penalty.  The law also provides for penalties against large employers if the government has to subsidize the workers’ health insurance costs.  Such changes could trigger a repeal of the Hawaii state law, which contains a “sunset” provision upon federal legislation that provides for “mandatory prepaid healthcare for the people of Hawaii.”

Additionally, despite the carve out, there are some provisions that will still affect Hawaii employers, such as tax credits for small employers, early retiree subsidies, and reporting requirements for tax forms.

Finally, as I mentioned in an earlier post, Hawaii employers will be required to provide mandatory break times for nursing mothers, as well as a location to do so.  You can view that post here.

 
2009 Hawaii Legislative Wrap-Up

The 2009 legislative session resulted in some bad bills for Hawaii employers. Three bills of particular significance are:

Card Check Certification – This bill amends the Hawaii Labor Relations Act to allow unions to become the exclusive bargaining representative of agricultural employees without going through a secret ballot election. Rather, if the union obtains signed authorization cards from a majority of the employees, the employer will be required to recognize the union as the exclusive bargaining representative of the employees.

This bill applies only to employees in the agricultural field and to employers with annual gross revenues of $5 million or more. All other employers are still covered by the National Labor Relations Act, which currently still requires a secret ballot election to certify a union. However, employers should be aware that the federal Employee Free Choice Act (“EFCA”) which is similar to the Hawaii card check bill is still pending at the Congressional level. For more information on the EFCA, please refer to this post.

Credit History Discrimination - This bill makes it unlawful for an employer to discriminate against an employee or job applicant because of a “credit history or credit report,” unless the credit history or credit report relates to a bona fide occupational qualification (“BFOQ.”) In addition (and similar to Hawaii’s law on arrest and conviction record discrimination), an employer would be prohibited from making any inquiry into an individual’s credit history or obtaining a credit report until after a conditional offer of employment has first been made, and the conditional offer of employment may be withdrawn only if information in the credit history or credit report relates to a BFOQ.

Disputed Workers Compensation Claims - This bill would require employers to continue to provide individuals on workers’ compensation leave with “essential” medical services even if compensability is denied, or a dispute arises as to whether medical services are reasonable and necessary, until the Hawaii State Director of the DLIR conducts a hearing and determines that medical services should end.

Governor Linda Lingle has until June 30, 2009 to veto these bills, or they will become law.

One bit of good news (or relief):

There is one silver lining from the 2009 Hawaii legislative session: the “successorship bill” which would have required successor employers to hire 100% of the employees of a company they were assuming, was not passed. It appeared to have support by the Legislators throughout the 2009 legislative session, but fortunately, it lost steam and died during conference.