Even enforcement officials at the U.S. Department of Labor are surprised. Within the 2,559 pages of the Patient Protection and Affordable Care Act of 2010, the U.S. Department of Labor has been given increased enforcement authority with amendments to the Fair Labor Standards Act, and employers have been assigned new tasks.
Officials at the U.S. Department of Labor confirm the Department has yet to issue any official guidance on the new amendments to the FLSA. However, a review of the new provisions of the PPACA reveals that Congress has inserted significant provisions into the PPACA which will require employers to undertake increased responsibility.
With precious little public debate, Sections 1511, 1512, 1558, and 4207 of the PPACA amended the FLSA in four significant ways. Employers of 200 or more employees have new requirements to learn, and to implement. We summarize the most significant features of these amendments:
1. Section 18A is added to the FLSA which requires employers with 200 or more full-time employees to automatically enroll new full-time employees in one of the health plans offered. Automatically enrolled employees must be given notice and opportunity to opt-out; and
2. Section 18B is added to the FLSA which requires employers to provide detailed notice to employees of certain provisions of the PPACA. For example, covered employers must inform each employee at the time of hire of the existence of the Exchange [The “Exchange” is intended to be a newly created statutory option to expand private health insurance coverage for employees. As yet, we have no official guidance on how it will operate. We will continue to monitor and keep you posted on these rapidly evolving developments] and the manner to contact the Exchange to request assistance; and
3. Section 18C is added to the FLSA which prohibits employers from taking adverse action against employees because they received a tax credit or subsidy for a health plan, or “provided” information relating to any violation of the PPACA. Whistleblower protection is broadly defined. Enforcement incorporates the procedures set forth in 15 U.S.C. 2087(b) of the Consumer Product Safety Improvement Act of 2008 (“CPSIA).
4. Section 7(r)(1) is added to the FLSA which requires employers to allow a place “other than a bathroom, that is shielded from view and free from intrusion” for unpaid break times for nursing mothers to express breast milk, as “such employee has need to express the milk”, for one year after the child’s birth.
Before joining EpsteinBeckerGreen Douglas Weiner served the U.S. Department of Labor as a Senior Trial Attorney in the New York Regional Solicitor’s Office.