Murtha Means More

June 2014 - Labor and Employment News

Department of Labor (“DOL”) Issues New Guidance on the Health Insurance Marketplace and COBRA
COBRA Eligible Workers May Be Better Off in the Marketplace
New Cobra Notices Available

The Department of Labor (“DOL”) has issued new guidance on the interaction of the Affordable Care Act (“ACA”), the Health Insurance Marketplace (“Marketplace”) and the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Under COBRA, individuals who lose employer-provided group health coverage because of a qualifying event (such as termination of employment) may be eligible for coverage continuation. COBRA requires that notices be delivered to employees both when they become eligible for health insurance coverage, and again when they have a qualifying event and lose coverage.  Because the new marketplaces may offer less expensive coverage to affected individuals, DOL has designed new notices and guidance. The guidance provides additional information on how the COBRA rules mesh with the Marketplace, describes enrollment rights for Marketplace coverage and provides new model notices that reflect that the Marketplace is now open. The model notices include a new general COBRA notice and a new model election COBRA notice. Notices can be found at

DOL Frequently Asked Questions issued with this new guidance advise that individuals who qualify for COBRA continuation coverage (known as qualified beneficiaries) may want to compare coverage options under COBRA to the coverage that is generally available in the Marketplace. Qualified beneficiaries may be eligible for a premium tax credit (which could help to pay for some or all of the cost of coverage in plans offered through the Marketplace) and for cost-sharing reductions (which would lower out-of-pocket costs for deductibles, coinsurance and copayments). Qualified beneficiaries may find that Marketplace coverage is more affordable than COBRA continuation coverage.

Remember that the period of time after a qualifying event during which a qualified beneficiary can elect coverage in the Marketplace is limited to a special enrollment period of 60 days. Once an election for coverage in a Marketplace plan has been made, individuals cannot switch back to COBRA. Marketplace coverage is prospective only. If a COBRA continuation coverage election is made, individuals can switch to coverage under a Marketplace plan during the Marketplace’s open enrollment period. However, problems can arise if the qualified beneficiary does not consider the various enrollment windows carefully.

Please contact Rachel Faye Smith at 617.457.4023,, or William J. Keenan, Jr. at 860.240.6028, if you have any questions concerning these new rules.

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U.S. Equal Employment Opportunity Commission (“EEOC”) Convinces Court to Adopt New Definition of Workplace When Considering Telecommuting as a “Reasonable Accommodation” Under the Americans with Disabilities Act (“ADA”)

A mid-western Appeals Court recently expanded the definition of the term “workplace” for ADA purposes. According to the Court, a “workplace” is “anywhere an employee can perform her job duties.” The Court rejected the employer’s (Ford Motors’) argument that the term “workplace” should be defined by a “bricks and mortar” structure.

The Court’s analysis affects whether an employee’s request to telecommute qualifies as a “reasonable accommodation” under the ADA. If other courts adopt this position, they will focus more sharply on how, rather than where, employees perform the core functions of their jobs. For example, courts will look to see if employees typically conduct job-related communications through teleconference and email as opposed to in-person meetings. Courts will also evaluate whether the employer has a preexisting telecommuting policy. While employers have always had to consider these factors (i.e., Am I treating an employee with a disability the same as other employees? Am I considering only essential job functions?), this decision broadens the accommodations that employers may have to grant.

Notably, the Court explicitly rejected Ford’s argument that its employee needed to be physically present “on-site” so that she could respond to unexpected work-related emergencies and/ or participate in impromptu meetings. The Court found that the employee’s request to telecommute from home on an “as needed basis” was a reasonable accommodation under the ADA because the evidence before the Court showed that the employee in question primarily communicated by teleconference and email and that Ford already had a telecommuting policy in place.  As long as the employee was available via telephone or email during core business hours, the employee could adequately address these unexpected contingencies. The employee, who suffered from gastro-intestinal problems, had been offered other accommodations such as a relocation of her work station closer to bathroom facilities.

The Court found that technology has revolutionized the workplace. It declared that the crucial inquiry in analyzing the reasonableness of a telecommuting request is to determine whether the employee in question truly needs to interact personally with equipment or people at the employer’s offices to perform the core functions of her job. Ford has asked the full Court of Appeals (the decision was by three Judges) to review the decision.  Although not binding on courts in New England, the decision may well be influential.

The decision serves as a reminder that before acting on a reasonable accommodation request, all employers must:

  • look carefully at the employee's request for accommodation;
  • analyze the essential functions of the job; and
  • review treatment of similarly situated workers.

Please contact Susan J. Baronoff at 617.457.4031 or or Michael C. Harrington at 860.240.6049 or if you have any questions concerning the issues discussed in this article.

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Employee Drug Testing: Hair Testing May Create More Legal Problems than it Solves

The use of illegal drugs by employees can substantially disrupt an employer’s business. Many employers, therefore, seek to reduce or eliminate drug use by their employees. One tool for this purpose is testing employees for illegal drug use.. However, urinalysis drug tests – tests that analyze an individual’s urine for metabolites of illegal drugs – are subject to some considerable regulation in Connecticut. In order to subject a current employee to a urinalysis drug test in Connecticut, the employer must either have prior approval or mandate from a state or federal agency or must have “reasonable suspicion” that the employee is currently under the influence of illegal drugs in a manner that may interfere with his/her work.

This “reasonable suspicion” standard is problematic because whether any particular circumstances rise to that level will often be a question of fact in a lawsuit that will need to be resolved by a jury after a full trial, which most employers would rather avoid. Because the Connecticut statute – unlike similar statutes in Maine, Rhode Island and Vermont – applies only to urinalysis drug tests, some employers have sought to avoid the legal restraints on such tests by analyzing hair samples for drug metabolites instead. However, a recent decision by a federal Appeals Court in Massachusetts demonstrates that such testing may create its own legal problems.

The federal case involved the Boston Police Department, which regularly conducted tests on hair samples of employees and applicants to determine whether there were signs of illegal drug use. A group of employees and applicants sued the Department, claiming that the hair test discriminated against African Americans. As an initial matter, the proportion of African Americans testing positive exceeded the proportion of other employees testing positive to a statistically significant extent. The First Circuit Court of Appeals held that that showing was enough to require further proceedings to decide whether the test was “consistent with business necessity” and whether there were less discriminatory alternatives that would satisfy the Department’s needs as well.

While the case is not over, the litigation has proceeded for about five years, and will proceed even further, at significant expense to the employer. The evidence apparently showed that hair testing may well be a process that results in higher false positives for African Americans than for individuals of other races.

In addition, hair testing does not test for the characteristic in which the employer is most interested – evidence that the employee was under the influence of drugs at a particular time. Metabolites of illegal drugs are deposited in hair about a week after use, and then remain in the newly grown portion of hair until that hair is cut or falls out. Thus, an individual who is currently under the influence of drugs may test negative, while an individual who used drugs six months ago may test positive.

While following the “reasonable suspicion” standard can create legal problems, shifting to hair testing likely simply substitutes a different set of problems, while using a test that is less likely to answer the question the employer is asking. There are few situations where a drug test in response to behavior that may or may not indicate drugs is useful. Before proceeding to order such a test, employers should consult with both legal and medical advisors.

Please contact Hugh F. Murray, III at 860.240.6077 or if you have any questions concerning the issues discussed in this article.

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Connecticut Expands Paid Sick Leave Law

Effective January 1, 2015, Connecticut’s sick leave law will add additional rights for employees and ease some administrative burden for employers.

The law now prohibits employers from firing or transferring employees “solely” to avoid coverage under the law (i.e., the 50 employee minimum when coverage kicks in).

Employers must now determine whether they meet the 50 employee threshold during the week containing October 1, instead of any of the previous year’s quarters. The law now covers radiologic technicians.

Finally, employers can choose the date which they use for employee benefit calculations to determine the beginning of the 365 days for sick leave accruals.

Please contact Lissa J. Paris at 860.240.6032 or if you have any questions concerning the issues discussed in this article.

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