OBAMACARE: THE NEWEST LABOR AND EMPLOYMENT LAW?

FEBRUARY 2013

I just attended an employment law seminar on the Affordable Care Act (PPACA or Obamacare).  What does the Affordable Care Act have to do with labor and employment law? The answer is obvious if you think about it.  The new health care law creates an almost infinite number of legal issues regarding the relationship between employers and employees.

The seminar was charitably at the basic level, explaining the general provisions for novices like me, but a few things stood out.  First, 2013 is the year for employers to experiment with strategies on how to deal with the law’s new obligations, most of which kick in 2014 forward.

Second, communication with an employer’s employees is essential so they understand their rights, and how and why their employer has chosen to handle the law.  Otherwise, an employer may find a very confused and upset workforce on its hands.

And third, employment lawyers will have to brush up on their tax law, ERISA law, and OSHA law, because a number of key issues will be determined by reliance on those legal provisions or agencies.  For example, “related” companies’ employees will be aggregated to determine whether the full breadth of the law applies (50 or more employees).  That is a term evidently familiar to tax lawyers, but not to most employment lawyers.  Also, independent contractor status will probably be resolved by tax law cases; and anyone familiar with how the IRS handles the I/C issue knows that, although the legal analysis is generally based on principles of common law, the IRS approach is somewhat unique and a large body of legal precedents already exist in the form of decided tax law cases.  Additionally, Section 1558 of the ACA added § 18C to the Fair Labor Standards Act, expressly prohibiting an employer from retaliating against an employee for, inter alia, receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, reporting a potential violation of ACA’s consumer protection provisions, and assisting or participating in a proceeding under the whistleblower law; and OSHA is the federal agency responsible for enforcement of the law.

Just how labor and employment arbitration may eventually fit in to the new health law equation, if at all, is uncertain right now; e.g., possible damages and remedies issues come to mind, as well as potential issues arising under collective bargaining and union contracts.  But then again, everything is uncertain right now about the eventual effects of the Affordable Care Act.  Interesting times ahead.