Employment Law

What Happens to Your Health Benefits if You Stop Working?

Many of us receive our health insurance benefits through our employment, or through our spouse's employer. What happens to your health benefits if you are laid off, or if your spouse dies, or if you divorce?

The Consolidated Omnibus Reconciliation Act of 1986 (COBRA) entitles employees and their dependents covered by an employer's health insurance plan to continue coverage after employment has terminated, or when an employee is otherwise ineligible to receive health benefits through the employer.

What COBRA Does
COBRA allows you to continue your health benefits if:
Your employment is terminated
Your hours are reduced to the point where you no longer qualify for your employer's health benefits
You divorce your spouse
Your spouse dies

Who Offers COBRA?
Most larger employers are required to offer COBRA coverage. COBRA coverage will allow you to continue your health insurance for up to 18 months if your employment was terminated or your hours were reduced. Coverage may continue for up to 36 months if your entitlement is due to other reasons, such as disability, death or divorce.

Who Pays COBRA Premiums?
Under COBRA, you, not your employer, are responsible for paying the health insurance premium. The premium will typically be higher than the premium paid by your employer, but generally less than the premium amount you would pay if you were to acquire individual coverage on your own. © 2004 NextClient.com, Inc. All rights reserved.

Penalties for Violating OSHA Rules

If an Occupational Safety and Health Administration (OSHA) compliance and safety officer conducts a workplace inspection that reveals safety hazards, typically citations and penalties will be issued to the employer. Citations and penalties are not issued immediately after an inspection; they are mailed to the employer at a later date.

The ADA and "Reasonable Accommodation"

In 1990, the Americans with Disabilities Act (ADA) was passed with the intent to remedy discrimination against the disabled, especially in employment. The ADA defines disability as a "physical or mental impairment" that substantially limits one or more "major life activities," i.e. reading, walking, lifting, learning, hearing, etc.

Ability to Perform the "Essential Functions" of the Position
An initial inquiry is whether the candidate or employee can perform the "essential functions" of the job, with or without accommodations. "Essential functions" are those the employee must be able to satisfactorily perform for that position, as opposed to "marginal functions," which may be delegated to another worker. Common factors used to evaluate whether a function is "essential" include:

  • The employer's judgment and written job descriptions in advertisements, etc.
  • Whether the job exists to perform that particular function
  • The number of employees who can perform the function
  • Whether the function is specialized and the employee was specifically hired to perform that function
  • Time spent by the employee performing the function
  • The consequences of the employee not performing the function

  • Disability and the Right to "Reasonable Accommodation"
    At times, a disability may be obvious in an employee or candidate. For example, the disability may exist when the employee is interviewed and hired, or arise while she is employed, due to an accident, illness, or other event. When the disability is not obvious, however, the employee is obligated to inform the employer of its existence and request "reasonable accommodation." The employer is entitled to verification of the disability.

    Once the disability is established, the employer must provide the employee with "reasonable accommodation," if requested. However, the employer need not provide "reasonable accommodation" if it would cause the employer to suffer an "undue hardship" or pose a direct threat of harm to others.

    "Undue hardship" may exist when the accommodation is unduly costly, extensive, substantial, or disruptive. It depends on the facts and circumstances of each case and will therefore vary. An "undue hardship" for one employer may not be so for another.

    Types of "Reasonable Accommodations"
    "Reasonable accommodations" consist of measures an employer takes to ensure equal opportunity for a disabled person. They may be employed either in the application process or to enable a disabled employee to perform essential job functions and enjoy equal benefits and privileges. Employers are encouraged to consult with the disabled person to decide on the best and most "reasonable" accommodations. The employer is entitled to make the final selections, however, so long as they are reasonable and effective.

    The nature and extent of accommodations vary with each case, but may include:
  • Adjusting or modifying entrance examinations or training
  • Making the workplace accessible and usable (adding ramps, special parking, etc.)
  • Purchasing new, or modifying existing, equipment and devices
  • Modifying the job, such as by delegating "marginal functions" to other workers
  • Providing another person to read or interpret for the disabled employee
  • Reassignment to a vacant position, if accommodation is not possible for the present position and the employee can perform the new job
  • Permitting modified work schedules for flexibility in hours or the work week
  • Flexibility regarding leave, whether accrued, advance, or leave without pay

  • Workplace Discrimination & Sex

    Federal law prohibits most employers from discriminating against an employee because of gender. Employees must be given equal work opportunities and evaluated equally for job positions, promotions or layoffs.

    Gender & Job Status
    An employer subject to the anti-discrimination laws is not permitted to:
    Segregate employees by gender
    Make decisions that would somehow affect any employee's job status because of gender
    Discrimination relating to terms or conditions that apply to an employee's job position
    Discriminate concerning an employee's wages, hours, benefits, promotions, and layoffs
    Refuse to hire a potential employee or to fire an employee because of a customer's preference in regard to gender. For example, if a restaurant only hires female servers because customers prefer them, the owner may be in violation of the law.

    Equal Standards
    Any factors that are used to determine whether an employee or a potential employee is appropriate for a job position must be equally applied to both genders. For example, if a company requires employees or potential employees be measured for height and weight, then both males and females should be required to be measured.

    The BFOQ Exception
    A bona fide occupational qualification (BFOQ) is one exception to the law that may allow an employer to avoid having to adhere to the laws regarding anti-discrimination.

    A valid BFOQ defense should prove that the employment of a particular employee would somehow undermine the effectiveness of the business, thus making it possible for an employer to lawfully discriminate against an employee. To visit EEOC (U.S. Equal Employment Opportunity Commission) website, click here.

    Sexual Harassment

    To prevail on a Title VII hostile work environment claim, the plaintiff must establish four elements: (1) unwelcome conduct, (2) based on the plaintiff’s gender, (3) sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment, and (4) some basis for imputing liability to the employer.

    Employee's Damages for Discrimination Under the ADA

    If an employer unlawfully discriminates against a disabled worker and is found liable, the employee may be entitled to specific types of compensation under the Americans with Disabilities Act (ADA).

    The ADA makes it unlawful to discriminate against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in State and local government services, public accommodations, transportation and telecommunications.

    If you think you have been discriminated against in employment on the basis of disability after July 26, 1992, you should contact the U.S. Equal Employment Opportunity Commission. A Charge of Discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

    You may file a Charge of Discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys' fees.

    While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by State or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.

    To visit U.S. Department of Labor website, click here.
    © 2004 NextClient.com, Inc. All rights reserved.

    Family & Medical Leave Act (FMLA)

    The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

    FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

    FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

  • Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

    Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.
    A final rule effective on January 16, 2009, updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008.

    Special rules apply to employees of local education agencies. The Department of Labor administers FMLA; however, the Office of Personnel Management (OPM) administers FMLA for most federal employees.

    The U.S. Department of Labor will publish a final rule on Nov. 17 to update its regulations under the 15-year-old Family and Medical Leave Act (FMLA) - a measure that will help workers and their employers better understand their rights and responsibilities, and speed the implementation of a new law that expands FMLA coverage for military family members.

    http://www.marketwatch.com/news/story/US-Department-Labor-final-rule/story.aspx?guid=%7BAC6D1A92-0894-4B5D-BF58-33C5EB7FAE4B%7D © 2004 NextClient.com, Inc. All rights reserved. Other Resources The Guide to FMLA and Family Addiction Recovery Factsheet: Family and Medical Leave Colleague Compassion: An Employer’s Guide to Supporting Employees Assisting Colleagues on Medical Leave

    Unemployment Benefits

    If you have been involuntarily terminated in Virginia, and it was not due to some willful misconduct on your part, you may be able to collect unemployment compensation by filing with the VEC. Visit the state’s website attached to see if you meet the requirements. If you have any other questions with regard to what may constitute “willful misconduct,” or if you need representation at the Appeal level , call our office.

    Title IX

    Title IX of the Educational Amendments of 1972 is the landmark legislation that bans sex discrimination in schools, whether it be in academics or athletics. Title IX states:

    "No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid."

    Athletics has created the most controversy regarding Title IX, but its gains in education and academics are notable. Before Title IX, many schools refused to admit women or enforced strict limits. Some statistics highlighting the advancements follow:

    Intercollegiate Athletics

    Title IX governs the overall equity of treatment and opportunity in athletics while giving schools the flexibility to choose sports based on student body interest, geographic influence, budget restraints, and gender ratio. In other words, it is not a matter of women being able to participate in wrestling or that exactly the same amount of money is spent per women's and men's basketball player. Instead, the focus is on the necessity for women to have equal opportunities as men on a whole, not on an individual basis.

    In regard to intercollegiate athletics, there are three primary areas that determine if an institution is in compliance:
    1. athletic financial assistance
    2. accommodation of athletic interests & abilities
    3. other program areas

    Appraisal of compliance is on a program-wide basis, not on a sport-by-sport basis.

    While many resources have been written specifically for intercollegiate sports, the general components of Title IX apply to interscholastic sport as well.
    To establish a Title IX claim on the basis of sexual harassment, a plaintiff must show that (1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir.2002). Courts look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); Franklin, 503 U.S. at 75, 112 S.Ct. 1028.