The MC Academy The Employee Benefits and Executive Compensation Series HEALTH CARE REFORM ACT

Transcription

1 The MC Academy The Employee Benefits and Executive Compensation Series HEALTH CARE REFORM ACT April 16, 2013

2 Topics Health Care Reform under the Patient Protection and Affordable Care Act Overview Exchanges 2014 Individual Coverage Choice Plan Design Changes Employer Mandates Reporting and Fees Litigation and Enforcement Issues 2

3 OVERVIEW

4 Health Care Reform Overview Requires most U.S. citizens and legal residents to have health insurance or face penalties Creates state-based American Health Benefit Exchanges ( Exchanges ) through which individuals and small businesses (less than 50 full-time employees) can purchase coverage Individuals/families with income between 133% and 400% of the federal poverty level (FPL) are eligible for federal premium and cost-sharing tax credits ( Subsidies ) for coverage purchased on an Exchange 4

5 2012/2013 Poverty Guidelines 48 Contiguous States* *Alaska and Hawaii have separate schedules with higher household income numbers 5

6 Health Care Reform Affected Benefits The Patient Protection and Affordable Care Act, known as the Health Care Reform Act ( HCRA ), defines benefits that are covered by the act for most purposes as: Medical, including pre-medicare retiree coverage unless offered under a separate plan Prescription Drug Dental if offered as part of, or election is tied to, Medical Vision if offered as part of, or election is tied to, Medical Health Reimbursement Accounts if offered separately from Medical 6

7 Health Care Reform Excepted Benefits The HCRA defines benefits that are excepted from the act for most purposes. These include: Accident Only Disability Income Coverage for a Specific Disease Hospital Indemnity or Other Fixed Indemnity if offered separately, not coordinated with benefits under another group health plan, and pays a per day benefit, and Long-Term Care 7

8 EXCHANGES

9 Exchanges Exchanges By January 1, 2014, each state may establish an Exchange to facilitate the purchase of qualified health plans by individuals and small employers generally employers with 50 or fewer employees Small employer exchanges delayed to 2015 If a state does not establish an Exchange, the Department of Health and Human Services ( HHS ) will establish the Exchange for the state Exchanges must provide for an initial enrollment period, annual open enrollment periods and special enrollment periods 9

10 Exchanges A qualified health plan is a health plan: Certified by the Exchange as providing an essential health benefits package, and Offered by a health insurance issuer that agrees to charge the same premium for the plan through the Exchange and outside the Exchange So far, 18 states and the District of Columbia have conditionally approved Exchanges and 7 states are partnering with HHS to run Exchanges 10

11 Exchanges Essential health benefits package for a qualified health plan Provides essential health benefits Limits cost-sharing for coverage Provides four levels of coverage (e.g., bronze 60%, silver 70%, gold 80% or platinum 90%) based on the full actuarial value of the benefits provided under a qualified health plan Exchanges will also offer catastrophic coverage for individuals under age 30 11

12 Exchanges Essential Health Benefits Ambulatory patient services Prescription drugs Emergency services Hospitalization Rehabilitative and habilitative services and devices Laboratory services Maternity and newborn care Preventive and wellness services and chronic disease management Mental health and substance use disorder benefits Pediatric services, including oral and vision care 12

13 2014 INDIVIDUAL COVERAGE CHOICE

14 2014 Individual Coverage Choice Key Question Will employees elect to go into the Exchanges or stay in their employer plan (if offered)? 14

15 2014 Exchanges Plan Design Exchange Plan Exchange Plans Actuarial Value Paid by Plan 1 Consequential Individual Cost Sharing Bronze 60% of costs 40% of costs Silver 70% of costs 30% of costs Gold 80% of costs 20% of costs Platinum 90% of costs 10% of costs 1 The actuarial value is the percentage of covered health care costs expected to be paid by the Exchange plan for a broad population Out-of-pocket cost-sharing is restricted the limit that applies to HSA qualifying high deductible health plans (approximately $6,350 per individual/$12,700 per family in 2014) applies 15

16 2014 Exchanges Plan Design Industry Surveys of Employer-Sponsored Health Plans 2011 Benefit Plans Employer Plan PPO Plans In-Network Benefit of Most Prevalent Plan Annual Deductible Single/Family Patient Coinsurance Co-Pays Out-of-Pocket Limit Single/Family Kaiser $505/$1,121 20% Hay Group $300/$1,000 20% Mercer $420/$1,000 20% PCP $23 Spec. $32 PCP $20 Spec. $20 PCP $20 Spec. $35 $2,250/$5,000 $1,750/$4,000 $2,000/N/A Typical employer-sponsored PPO plans have an actuarial value of 80% 90% based on survey results for mid to large size employers 16

17 2014 Exchanges Plan Design Kaiser Family Foundation (KFF) Illustrative Plan Designs Based on Actuarial Values Exchange Plans Exchange Plan Actuarial Value Annual Deductible Single/Family Patient Coinsurance Out-of-Pocket Limit* Single/Family Bronze 1 60% of costs $4,375/$8,750 20% $6,350/$12,700 Bronze 2 60% of costs $3,475/$6,950 40% $6,350/$12,700 Silver 1 70% of costs $2,050/$4,100 20% $6,350/$12,700 Silver 2 70% of costs $650/$1,300 40% $6,350/$12,700 * Estimated 2014 out-of-pocket limit for health savings accounts Exchange plan designs do not take into account reductions by potential costof-coverage Subsidies 17

18 2014 Premium Costs Comparison Industry Surveys of Employer- Sponsored Health Plans Silver Plan in Exchange Age Benefit Plans PPO Plans PPO Plans Annual Employee Premium Annual Employee Premium FPL Single Family of 4 Survey Single Family Kaiser $1,080 $3, % $690 $1, % $1,450 $2, % $2,315 $4,714 Hay Group $1,188 $4,380 Mercer $1,284 $4, % $3,279 $6, % $4,372 $8,901 >400% $6,798 $16,858 18

19 Potential Total Cost to Employee PLAN DESIGN Out-of-Pocket Limit Premium 50 Yr Old 200% FPL PREMIUM 2011 Surveys of Employer-Sponsored Plans Premium 50 Yr Old >400% FPL 50 Yr Old 200% FPL TOTAL COST 50 Yr Old >400% FPL Single $2,000 $1,180 $1,180 $3,180 $3,180 Family $4,500 $4,200 $4,200 $8,700 $8, Exchange Plans Silver 1 Exchange vs. Employer-Sponsored Plans Single $6,350 $1,450 $6,798 $7,800 $13,148 Family $12,700 $2,952 $16,858 $15,652 $29,558 Exchange design does not take into account potential cost-of-coverage subsidies 19

20 PLAN DESIGN CHANGES

21 2013

22 No Lifetime Limits and Restricted Annual Limits For the 2013 plan year, a group health plan may not have an annual limit on the dollar amount of essential health benefits greater than $2,000,000 No annual limits allowed for plan years beginning on or after January 1, 2014 May apply lifetime or annual limits to benefits that are not essential health benefits 22

23 Caps on Employee Health FSA Contributions Employee contributions to Health FSA capped at $2,500, effective for the first plan year beginning on or after January 1, 2013 Increased annually for cost-of-living Cap does not apply to employer contributions to FSA Amendments reflecting new limit must be adopted by December 31, 2014 The Joint Committee on Taxation estimates that the cap will raise 24 billion in revenue 23

24 Summary of Benefits and Coverage HCRA requires group health plans to provide participants and beneficiaries a Summary of Benefits and Coverage (SBC) A separate SBC must be provided for each benefit package This requirement was effective beginning with the first open enrollment period starting on or after September 23,

25 Exchange Notice Employers must notify employees of certain information, including the following: The existence of the Exchanges, the services provided by the Exchanges, and the manner in which they may contact the Exchanges The employee may be eligible for a premium tax credit or cost sharing reduction to purchase health insurance through an Exchange The Department of Health and Human Services is expected to issue a model notice 25

26 2014

27 Pre-existing Condition Exclusion No pre-existing condition exclusions or limitations for any participants or dependents, effective the first day of the plan year that begins on or after January 1, 2014 HIPAA certificates of creditable coverage obsolete (but obligation to furnish still remains through December 31, 2014) 27

28 Nondiscrimination for Fully-Insured Plans Fully-insured group health plans may not discriminate in favor of highly compensated individuals ( HCIs ) under Internal Revenue Code Section 105(h) Likely to be effective in 2014 Fully-insured executive medical plans will be permitted only to the extent that the grandfathering exemption applies 28

29 Wellness Incentives HCRA increases the reward limitation for health-contingent wellness programs from 20% of the cost of health coverage to 30% of the cost (generally based on the COBRA premium), effective the first day of the plan year that begins on or after January 1, 2014 An increase to 50% is allowed for health-contingent wellness programs designed to prevent or reduce tobacco use Applies to grandfathered and non-grandfathered plans Does not address potential ADA issues with wellness benefits for employer-sponsored plans 29

30 Waiting Periods A group health plan may not require any waiting period that exceeds 90 days, effective for plan years that begin on or after January 1, 2014 Existing waiting periods that exceed 90 days will need to be changed prior to the first day of the plan year to ensure compliance Example: Waiting period is first day of the month following 3 months of continuous service. New hires on or after October 2, 2013 would have a waiting period that exceeds 90 days after January 1,

31 Coverage for Clinical Trials Group health plans and health insurers must allow individuals to participate in approved clinical trials and may not discriminate against that individual for participating in the clinical trial effective for plan years beginning on or after January 1,

32 2018

33 Cadillac Tax Effective in 2018, HCRA places a nondeductible excise tax on the annual value of employer sponsored health coverage exceeding: $10,200 for single coverage ($11,850 for early retiree), and $27,500 for family ($30,950 for early retiree) Tax is assessed on the insurer for fully insured coverage and on the employer for self-funded coverage 33

34 Cadillac Tax Future premium thresholds will increase using the consumer price index which typically grows at a slower rate than medical inflation, which means plans will age into the tax Example: If premiums for employee-only coverage are $15,000 in 2018, there would be an excise tax of $1,920 ($15,000 - $10,200 = $4,800 x.40) due by the insurer or employer The Joint Committee on Taxation estimates that the Cadillac Tax will raise $111 billion in additional revenue 34

35 EMPLOYER MANDATES

36 Employer Mandates Starting January 1, 2014, applicable large employers must either comply with the requirements below or pay a shared responsibility penalty: Requirement 1 offer minimum essential coverage to at least 95% of full-time employees and their dependents (excluding spouses); and Requirement 2 offer minimum essential coverage that is: affordable, and provides minimum value 36

37 Employer Mandates Applicable Large Employer Any employer with an average of at least 50 full-time employees (taking into account full-time equivalent employees) Controlled group rules apply all entities treated as a single employer under Internal Revenue Code Section 414(b), (c), (m) or (o) are treated as a single employer to determine whether an employer is an applicable large employer 37

38 Employer Mandates Full-Time Employees Employees, other than seasonal employees, who are employed an average of at least 30 hours a week However, only the specific member of the controlled group who fails the shared responsibility rules is required to pay a shared responsibility payment 38

39 Employer/Employee Relationship Employee/Employer relationship defined by common law standard: Leased employees are not considered employees Staffing company and PEO workers require analysis 39

40 Penalties Penalty #1: Assessed monthly, and equals $2,000 x number of full-time employees minus 30, multiplied by 1/12 (or $167 per full-time employee, per month), if: Minimum essential coverage not provided to at least 95% of full-time employees (and their dependents), and A full-time employee gets coverage on an Exchange, and The full-time employee using the exchange receives a Subsidy (only available if the employee s family s income is between 1x and 4x the poverty level) 40

41 Penalties Penalty #2: $3,000 x the number of full-time employees who get a subsidy, multiplied by 1/12 (or $250 per full-time employee who actually receives a subsidy, per month), if: Minimum essential employer coverage offered is unaffordable or lacks minimum value, and A full-time employee gets coverage on an Exchange, and The full-time employee using the Exchange receives a Subsidy (only available if the employee not offered employer coverage and employer coverage is unaffordable) One penalty per affected individual, and Penalty #1 is a cap 41

42 Affordability Affordability premium for the lowest cost, employee-only coverage may not exceed 9.5% of family income Does not apply to spouses or dependents Affordability Safe Harbors Premium for employee-only coverage does not exceed 9.5% of: The employee s Box 1 Form W-2 wages The employee s rate of pay (up to 130 hours per month) The federal poverty line ($88.43 per month) 42

43 Minimum Essential Coverage Under the proposed regulations includes an eligible employer-sponsored group health plan (insured or selffunded) even if grandfathered Does not include health insurance that provides excepted benefits such as hospital indemnity policies Proposed regulations do not clarify if employer coverage must comply with HCRA requirements such as no life-time limits, no pre-existing condition exclusions, etc. 43

44 Minimum Value Minimum Value plan must pay at least 60% of the total allowed cost of benefits expected to be incurred HHS has released a minimum value calculator to determine whether benefits offered under the employer provide minimum value Calculator may be accessed at: 44

45 Multiemployer Plans Transition rule through 2014 employer will not be subject to a penalty for failure to offer the required coverage if: The employer is required to make a contribution to a multiemployer plan pursuant to a collective bargaining agreement (or a related participation agreement) Coverage under the multiemployer plan is offered to the fulltime employee (and dependents), and The coverage offered to the full-time employee is affordable and provides minimum value 45

46 Multiemployer Plans A multiemployer plan will be considered affordable if the employee s required contribution toward self-only coverage does not exceed 9.5% of the wages reported to the qualified multiemployer plan If any penalty is due, it would be payable by a participating employer 46

47 Employer Mandates Notification and Payment The employer will be notified if one of its employees is determined to be eligible for a Subsidy on an Exchange The employer will be given the opportunity to respond before any liability is assessed or notice and demand for payment is made If it is determined that the employer does owe the penalty, the IRS will send a notice and demand for payment with instructions on how to make the payment 47

48 Calculating Full-Time Status Proposed regulations provide: 130 hours of service in a calendar month would be treated as the monthly equivalent of 30 hours of service per week Example: Employee worked 28 hours a week in January (112 hours in 28 days) plus 6 hours a day during the 29 th 31 st of the month. The employee would be considered full time, having worked 130 hours in the month 48

49 Calculating Full-Time Status Proposed regulations provide: Hours of service include each hour an employee is paid or entitled to be paid for: Performing duties Vacation Holiday Illness or Incapacity* Layoff Jury Duty Military Duty, or Leave of Absence * Includes STD, LTD, and workers compensation leave even if paid by insurer 49

50 Calculating Full-Time Status To calculate hours of service : Hourly Employees count actual hours Non-Hourly Employees count: Actual hours of service; or 8 hours per day; or 40 hours of service per week 50

51 Safe Harbor for Determining Full-Time Status Employers may use a voluntary safe harbor method to determine the full-time status of variable hour, temporary, or seasonal employees The safe harbor: Allows employers to apply a look-back period to determine whether the employee is full-time Requires coverage during a stability period if the employee is determined to be full-time during the look-back period 51

52 Safe Harbor for Determining Full-Time Status May establish different look-back periods for each category of employees Categories of employees include (for example): Collectively bargained and non-collectively bargained employees Salaried and hourly employees Employees of different entities within a controlled group, and Employees in different states 52

53 Existing Employee Example If the Employer imposes a 12-month look-back period from October 15, 2012 October 14, 2013 and an administrative period running from October 15, 2013 December 31, 2013, the 12-month stability period would run from January 1, 2014 December 31, /01 10/15 01/01 12/31 10/14 01/01 12/31 01/01 12/31 12/ Standard Look-Back Period Standard Administrative Period Standard Stability Period Any Existing Employees (i.e., employees hired on or before October 15, 2012) would need to be offered coverage no later than January 1,

54 New Employee Example The Employer imposes a 12-month initial measurement period that begins the employee s date of hire and an administrative period that runs from the end of the initial measurement period through the last date of the next calendar month An employee who is hired on May 10, 2014 and determined to be full-time during the initial measurement period, must be offered coverage no later than July 1, /01 05/10 01/01 12/31 05/09 01/01 12/31 07/01 06/ /31 Initial Measurement Period Initial Stability Period Initial Administrative Period 54

55 Transition from New Employee to Ongoing Employee Transition Example: Employee hired May 10, The employee s initial measurement period runs from May 10, 2014 through May 9, The employee must also be included in the ongoing employee measurement period that runs from October 15, 2014 October 14, /01 01/01 12/31 05/10 05/09 10/15 01/01 12/31 07/01 06/30 10/14 01/01 12/31 12/ Standard Look-Back Period Standard Administrative Period Initial Measurement Period Initial Administrative Period Initial Stability Period Standard Stability Period 55

56 Rehired Employees/Employees Returning from Unpaid Leave General Rule: For unpaid leave of 26 consecutive weeks: An employer may treat an employee who returns to work as a new employee Rule of Parity: For unpaid leave of < 26 weeks: If unpaid leave 4 weeks and prior period of employment, employer may treat an employee who returns to work as a new employee Example: If an employee has been employed for 3 weeks, terminates employment and is rehired 10 weeks after termination, the rehired employee is treated as a new employee, because the employee s 3-week period with no credited hours of service is longer than the preceding 3- week period of employment 56

57 Rehired Employees/Employees Returning from Unpaid Leave For employees returning from unpaid leave who are treated as continuing employees (and not as employees terminated and rehired), the pre-break measurement and stability periods continue to apply Example: If the continuing employee returns during a stability period in which the employee is treated as a fulltime employee, the employee is treated as a full-time employee upon return and through the end of that stability period. The employee will be treated as being offered coverage upon resumption of services if the employee is offered coverage as of the first day that employee is credited with an hour of service, or, if later, as soon as administratively practicable 57

58 Rehired Employees/Employees Returning from Unpaid Leave Unpaid leave under FMLA and USERRA: Employee must be given credit for hours of service during leave at same rate as before leave An employee cannot be disadvantaged by taking these leaves 58

59 Transition Relief for Fiscal Year Plans Proposed regulations provide transition relief for fiscal (noncalendar) plan years, with respect to the employer penalties that begin on January 1, 2014 Under the transition relief, no penalty will be assessed for a full-time employee if the employee is offered affordable, minimum value coverage as of the first day in the 2014 plan year and either: The full-time employee was or would have been eligible for coverage under the plan s eligibility terms as of December 27, 2012, or At least 1/4 of the employer s employees were covered under a plan (or multiple plans with the same plan year) or 1/3 of employees were offered coverage during the most recent open enrollment (before December 27, 2012) 59

60 Planning Choices Have no full-time employees (all employees work under 30 hours a week) Do not offer coverage and pay the penalty for all full-time employees in a month Provide unaffordable minimum essential coverage and only pay penalty for full-time employees who receive a Subsidy on an Exchange Provide affordable coverage (can use affordability safe harbors) Employer would not be subject to Health Care Reform (not a practical or workable solution) $ per month per full-time employee if one employee goes to the Exchange and receives a Subsidy Can provide minimum essential coverage with minimum value and require employees to pay 100% of cost Need only provide (i) affordable employee-only coverage, and (ii) dependent coverage at employee expense at cost 60

61 REPORTING AND FEES

62 Information on Activities that Improve the Quality of Care New reporting and disclosure requirements on activities that improve the quality of care, effective January 1, 2011* Provides information to Congress on improvement in health outcomes through patient-centered education, medical homes, care management, wellness and health promotion activities * Delayed until guidance issued 62

63 W-2 Reporting The employee s W-2 must include the aggregate cost of employer-sponsored coverage, beginning with 2012 W-2s issued in January 2013 Employer-sponsored coverage means group health plan coverage, other than the following excluded benefits: Stand alone dental and vision plans HRAs HSAs Archer Medical Savings Accounts that do not include employer contributions Long-term care insurance Accident and Disability Coverage EAPs, Wellness Programs, and on-site medical clinics, if qualified beneficiaries are not charged a premium in order to continue the coverage under COBRA 63

64 Patient-Centered Outcomes Research Fees For each plan year ending on and after September 30, 2012, and before October 1, 2019, sponsors of self-funded group health plans are (including retiree-only plans) subject to an annual patient-centered outcomes research fee With respect to insured benefits, insurance carriers are responsible for the fee For each plan year, plan sponsors are required to calculate the amount of the fee and file Form 720, Quarterly Federal Excise Tax Return by July 31 following the plan year 64

65 Patient-Centered Outcomes Research Fees Fee Amount Average number of covered lives, times: Plan year ending December 31, 2012 $1* Plan year ending December 31, 2013 $2* The Joint Committee on Taxation estimates this will raise $3.8 billion in revenue * Subject to increase 65

66 Medicare Part A Tax The HI tax (previously 1.45% for all employees) is increased by 0.9% for earnings over $250,000 for joint returns and $200,000 for single taxpayers effective January 1, 2013 Threshold amounts are not indexed for inflation Employers are responsible for tax withholding on an employee s wages in excess of $200,000 at 2.35% (1.45% + 0.9%) for the additional HI tax 66

67 Medicare Part A Tax There is also an additional 3.8% tax on unearned income (dividends, interest, annuities, royalties, rents and capital gains) for earnings in excess of $250,000 for joint returns and $200,000 for a single taxpayer Threshold amounts are also not indexed for inflation The Joint Committee on Taxation estimates the new Medicare Part A taxes will raise $ billion in additional revenue from

68 Annual Reporting Plan Reporting For calendar years beginning after December 31, 2013, insurance carriers and self-funded group health plans that provide minimum essential coverage to any individual must report to with the IRS and covered individuals, by the following January 31: The name, address and taxpayer identification number of the primary insured and each other individual obtaining coverage The dates during which the individual was covered The amount of any premium tax credit or cost-sharing reduction received by the individual with respect to such coverage 68

69 Annual Reporting Employer Reporting Each large employer ( 50 employees) must report certain health insurance coverage information to both its full-time employees and to the IRS, including: Certification of plan for full-time employees and dependents with minimum essential coverage List of full-time employees and number of months covered Additional information if offer minimum essential coverage, to show it is compliant and whether employees are eligible for subsidy 69

70 Annual Reporting Employer Reporting The employer is required to report to each full-time employee the information included in the return with respect to that employee, on or before January 31 of the year following the calendar year for which the information is required to be reported to the IRS 70

71 Transitional Reinsurance Program Established in each state to: Stabilize premiums for individual health insurance coverage offered through Exchanges, effective in , and Affect the cost of the Early Retiree Reimbursement Program ( ERRP ) Total fees collected must total $12 billion for 2014, $8 billion for 2015, and $5 billion for

72 Transitional Reinsurance Program Contribution calculated by multiplying the average number of covered lives (i.e., enrolled employees/pre-65 retirees and their dependents) in the group health plan by the national contribution rate for the applicable year HHS estimated that the annual national contribution rate for 2014 will be $63 per covered life Payments would generally be deductible as ordinary and necessary business expenses Considered permissible expenses of the plan 72

73 Transitional Reinsurance Program Affected Plans a group health plan for purposes of the fees includes grandfathered group health plans and retireeonly plans (participants in retiree-only plans are counted as covered lives if Medicare is secondary payer), but does not include: Excepted benefits plans Integrated HRAs that are offered with major medical coverage Health savings accounts Health flexible spending accounts Stop loss coverage, or EAPs, disease management or wellness programs, which do not provide major medical coverage 73

74 Transitional Reinsurance Program Annual Report and Payment each TPA or insurance carrier must submit an annual report detailing the average number of covered lives to HHS no later than November 15 each year Within 15 days of submission or by December 15, whichever is later, HHS will then notify each responsible entity of the reinsurance contribution amount due for the year The contribution will then need to be remitted to HHS within 30 days of the notification Budget accordingly! 74

75 LITIGATION AND ENFORCEMENT ISSUES

76 Litigation and Enforcement Issues HCRA is enforced through ERISA s traditional remedial scheme Private rights of action under ERISA: ERISA Section 502(a)(1)(B) (enforce plan) ERISA Section 502(a)(3) (appropriate equitable relief) ERISA Section 502(g)(1) (attorneys fees) Department of Labor can enforce HCRA IRS can impose excise taxes 76

77 Possible Areas of Litigation Enforce HCRA Litigation over grandfathered status Litigation over employer coverage mandates Enforce terms of the plan Enforce other employer promises (primarily union context) Analogous to retiree healthcare litigation Contractual vesting based on employer promises or representations Estoppel Breach of fiduciary duty Challenges to any change to plan (including moving to private exchanges) 77

78 Possible Areas of Litigation Impact of external review Independent Review Organizations ( IRO ): a work-in-process What claims subject to external review? IRO performs de novo review Do ERISA s fiduciary standards apply to IRO? What standards apply to challenges to IRO determinations? 78

79 Workplace Restructuring to Avoid or Control HCRA Impact ERISA Section 510: No adverse employment action for exercising rights to benefits No adverse employment action to interfere with the attainment of any right to which such participant may become entitled under the plan No retaliation Downsizing or limiting hours to avoid pay or play : violation? Interfering with attainment of ERISA rights? Pay or play: statutory option to employers? Merely avoiding a tax, not interfering with attainment of ERISA rights? 79

80 Whistleblower Protection HCRA amended the Fair Labor Standards Act Protects whistleblowers Prohibits adverse employment actions against employees because they receive an HCRA credit or subsidy Will the Courts extend this protection to employees seeking to receive an HCRA credit or subsidy? Claims procedures through OSHA Remedies include injunctive and compensatory damages (including reinstatement, back pay with interest, litigation costs, attorneys fees, expert fees, and other special damages ) 80