Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The House of Representatives had approved an earlier version of H.R. 1540 in May of 2011 that did not include these provisions. The Senate cleared its own version of the DoD bill (S. 1867) on December 1 that expressly excluded health care providers under the TRICARE network from being considered contractors. Therefore, the conference report was drafted to resolve the discrepancies between the two measures. On Wednesday the House of Representatives approved the reconciliations made by the report by a vote of 283-136. The Senate followed suit on Thursday with a vote of 86-13 in favor of the changes.

TRICARE

TRICARE is the DoD’s health care program for active duty and retired military and their families. In a directive issued last December, the OFCCP clarified instances in which it believed health care providers and insurers are subject to OFCCP requirements. Generally, the OFCCP’s position is that certain arrangements with the Federal Employees Health Benefit Program (FEHBP) and TRICARE constitute government contracts that create OFCCP jurisdiction. The drafters of the conference report recognized that the Administration:

is currently undertaking a review with relevant agencies . . . to clarify the coverage of health care providers under federal statutes applicable to contractors and subcontractors. The conferees agree that this is a complex issue which merits continued review from the Committees on Armed Services of the Senate and the House of Representatives and other committees of jurisdiction in the Senate and the House of Representatives.

To this end, the conference report adds to the bill a new section 715, Maintenance of the adequacy of provider networks under the TRICARE program:

In establishing rates and procedures for reimbursement of providers and other administrative requirements, including those contained in provider network agreements, the Secretary shall, to the extent practicable, maintain adequate networks of providers, including institutional, professional, and pharmacy. For the purpose of determining whether network providers under such provider network agreements are subcontractors for purposes of the Federal Acquisition Regulation or any other law, a TRICARE managed care support contract that includes the requirement to establish, manage, or maintain a network of providers may not be considered to be a contract for the performance of health care services or supplies on the basis of such requirement.

During the House debate on the bill, an attempt was made to exclude the above provision, but ultimately failed.

USERRA Rights

The bill also extends certain USERRA rights to members of the National Guard who have been called up to carry out homeland security missions in the United States. Current law does not afford National Guard members serving domestically the same USERRA protections it does for those serving overseas. The amendment revises section 4312 of USERRA to include full time National Guardsmen called up for federal homeland security missions for possible exemption from the Act’s 5-year limit on service. The conference report adds the same provision that was included in the Senate bill as a new Section 575.

The President is expected to sign this measure into law.

Update:  On December 31, 2011, President Obama signed this bill into law.

Photo credit: MBPHOTO, Inc.

TRICARE

Another provision in the Senate bill would prevent current efforts to extend federal affirmative action obligations to hospitals that participate in or accept reimbursement through the TRICARE program. TRICARE is the Department of Defense’s health care program for active duty and retired military and their families. As previously discussed, the OFCCP has taken the position – as articulated in an agency directive issued last year – that providers participating in TRICARE are government subcontractors subject to various affirmative action and equal employment opportunity compliance requirements enforced by OFCCP.

To counter this position, Section 702 of the defense bill includes the following provision that explicitly excludes TRICARE institutional, professional, and pharmacy network providers from being considered subcontractors:

In establishing rates and procedures for reimbursement of providers and other administrative requirements, including those contained in provider network agreements, the Secretary shall to the extent practicable maintain adequate networks of providers, including institutional, professional, and pharmacy. Network providers under such provider network agreements are not considered subcontractors for purposes of the Federal Acquisition Regulation or any other law.

Notably, the House’s version of the defense authorization bill (H.R. 1540) does not contain an analogous exclusion. The House and Senate versions of the bill must therefore be reconciled.

• Return to their jobs following leave, and be entitled to seniority and other rights and benefits determined by seniority while on leave;
• Be entitled to any other rights or benefits ordinarily provided to other employees who are on furlough or other leaves of absence;
• Be protected from acts of discrimination or reprisal for taking such leave.

Upon an employer’s request, employees must provide documentation to establish their eligibility for reemployment under USERRA. This application must “include sufficient documentation to establish a link between the injury or illness and the medical treatment the person obtained.”

In a press release, Rep. Doggett claimed that under current law, “a veteran who exhausts his sick leave does not have adequate protections to get the help needed . . .The needs of those in uniform do not end on the battlefield, and neither should our obligation to them.”

The House passed similar legislation in June of 2009, but the bill failed to advance.

Meanwhile, the PBGC has also published a final rule (pdf) that will make it easier for a member of the military to qualify for pension benefits. Under current PBGC regulations, benefits under a terminated single-employer pension plan are guaranteed only if the participant satisfies the conditions for entitlement to that benefit on or before the plan’s termination date. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) entitles military service members to return to their jobs after deployment and to receive credit for benefits, including employee pension plan benefits, that would have accrued during their military-related absence. The new PBGC rule address the scenario that occurs when a service member’s plan terminates while he or she is deployed. Under the new rule, the PBGC will consider the service member to have satisfied the conditions for benefits entitlement as of the plan’s termination date, so long as the service member is reemployed within the time limits set by USERRA. In other words, the rule will treat returning service members as if they had never left their employers at the time the plan terminates.

Photo credit: Kameleon007

• Would have the right to retain their jobs;
• Would be entitled to seniority and other rights and benefits determined by seniority while on leave;
• Would be entitled to any other rights or benefits ordinarily provided to other employees who are on furlough or leave of absence;
• Upon request, could use for absences for service-connected illness, injury or disability treatment any vacation, annual, medical, or other paid leave accrued by the individual;
• Would be treated as if he or she is absent by reason of military service for purposes of entitlement to employer-provided health care and pension benefit plans;
• Would be protected from acts of discrimination or reprisal for taking such leave.

If the employee notifies the employer in writing that he or she does not intend to return to work, the benefits provided by this Act would terminate. In addition, an employer would not be required to retain an employee on leave for service-related illness, injury or disability treatment if (a) compliance with the Act is impossible or unreasonable due to the employer’s significantly changed circumstances; (b) compliance would impose an undue hardship; or (c) the employment from which the person is absent by reason of the receipt of medical treatment is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. In each of these circumstances, the employer would bear the burden of proof.

After passing the House, this bill was referred to the Senate Committee on Veterans' Affairs. If signed into law, the provisions of this bill would apply to medical treatment received on or after the date of enactment.
 

Economic Stimulus

On Thursday, the House Ways and Means Committee voted 24 to 13 along party lines in favor of its portion of the $825 billion economic recovery package. The bill (H.R. 598) that seeks to provide tax, health and unemployment relief now will be combined with other measures to form H.R. 1, the American Recovery and Reinvestment Act, which is expected to receive full House consideration this week.   H.R. 598 isn't available for complete publication, but its provisions are discussed in a House Ways and Means fact sheet. 

A controversial aspect of this bill for employers is the provision of funds for extended COBRA coverage for the unemployed. The bill would provide a 65 percent subsidy for COBRA continuation premiums for up to 12 months for individuals and their families who have been involuntarily laid off between September 1, 2008 and December 31, 2009. The continuation of health care coverage would last as long as 12 months. Those individuals who were terminated but did not elect COBRA coverage within 60 days as required by law would be given an additional 60 days to do so. This bill also extends COBRA coverage for older (at least 55 years old) and tenured (have been with the employer for at least 10 years) workers. These individuals would be able to maintain their COBRA coverage at their own expense until they become eligible for Medicare or are able to secure alternate employment.

Lawmakers who were concerned about the effect of the cost of continued COBRA coverage for employers offered a number of amendments to the bill, all of which were defeated.

Veterans’ Employment Rights

The Servicemembers Access to Justice Act of 2009 (S. 263) would amend title 38 of the U.S. Code to improve enforcement of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This bill, among other things, would make agreements to arbitrate a dispute regarding an employee’s USERRA rights unenforceable, except in cases where the agreement is formed after the dispute arises. Moreover, this act would not invalidate the provisions of a collective bargaining agreement. S. 263 would also enhance remedies for USERRA violations. Under this act, an employer found in violation could be liable for both compensatory and punitive damages, as well as attorney’s fees. In addition, this legislation clarifies that USERRA prohibits wage discrimination against a member of the armed forces, and provides for equitable relief when appropriate.

This bill was referred to the Committee on Veterans' Affairs.

Another bill introduced this month seeks to provide employers with an incentive to hire unemployed veterans. The Veterans Jobs Opportunity Act of 2009 (S. 274) would amend the Internal Revenue Code to provide a tax credit to employers that hire an unemployed veteran in 2009 or 2010. An “unemployed veteran” for the purposes of this bill is defined as a veteran who was discharged or released from active duty in the Armed Forces during 2008, 2009 or 2010, and has been receiving unemployment compensation under state or federal law for at least four weeks during the 1-year period ending on the hiring date. This amendment would apply to those hired after December 31, 2008.

This bill was referred to the Committee on Finance. 

Senior Workers

The Health Care and Training for Older Workers Act (S. 281) would, among other things, extend COBRA continuation coverage for certain older workers, and create employment and training programs for seniors. This bill would amend section 602(2) of the Employee Retirement Income Security act of 1974 (ERISA) and section 2202(2)(A) of the Public Health Service Act by inserting a “Special Rule for Certain Older Workers” provision that qualifies an employee for continuing health care coverage if that employee is at least the early retirement age as defined in the Social Security Act, but is not yet entitled to benefits under title XVIII of the Social Security Act based on age.

This bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

Employee Verification

The Employee Verification Amendment Act of 2009 (H.R. 662) would extend the pilot programs for employment eligibility confirmation, and provide funds to the Commissioner of Social Security and the Secretary of Homeland Security to acquire, install and maintain technological equipment and systems for the implementation of an employment verification confirmation system.

This bill was referred to the Committee on the Judiciary, in addition to the Committees on Education and Labor and Ways and Means.