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Constitutional Law Scholars Discuss Religious Rights, the First Amendment and Obamacare

"Professor Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, as well as a Senior Fellow at the Hoover Institution.... David H. Gans is the Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. He is the co-author of an amicus brief filed in the Sebelius v. Hobby Lobby Stores, Inc. case.... Their discussion covers topics such as the Founding Fathers' intentions about corporate rights, religion, and the First Amendment; the ability of corporations to exercise certain types of religious rights; and rights of corporations to refuse to pay for health insurance programs they find morally objectionable." [Article includes link to podcast.]

North Carolina Voters Amend Constitution to Limit Marriage to Persons of Opposite Sex: Implications for Employers

"The new amendment to the North Carolina constitution reemphasizes that employers in North Carolina will not have to adjust their policies, plans and documents to accommodate or provide for same-sex spouses. Employers may, however, offer benefits to the same-sex spouses of employees who enter into those marriages in states where it is legal -- the amendment does not prevent that. Employers also may provide benefits that are not taxable to employees' same-sex spouses. But the amendment does mean that it remains the case that for purposes of state taxation, if an employer in North Carolina provides coverage in a health and welfare plan to the same-sex spouse of an employee, that coverage is taxable income to that employee."

Are Family-Building Benefits Raising COBRA Coordination Issues?

"If an employer decides to create an HRA to reimburse infertility treatment expenses, the COBRA treatment is more complex.... For purposes of assessing the employer's COBRA obligation in connection with [long-term fertility preservation ], the key question is whether the reimbursement of such expenses constitutes the provision of 'health care.' ... In general, reimbursement of costs related to adoption or surrogacy shouldn't give rise to a program that provides medical benefits -- meaning neither program should be subject to COBRA."

Employers Exploring Paid Sick Leave Options as Coronavirus Spreads

"Some employers may want to implement a paid leave policy in response to the public health emergency without making it permanent ... An employer that does not make provisions for paying employees who are quarantined or otherwise not willing or able to work won't face liability unless a state or local law requires paid leave ... Telecommuting [may be] a reasonable accommodation under the Americans with Disabilities Act (ADA), but ... being diagnosed with COVID-19 alone may not constitute a disability. However, telecommuting may be a reasonable accommodation for employees with disabilities whose medical conditions could be made worse by contracting the virus."

Proving Loss Causation in Breach of Fiduciary Claims: The Circuit Split Widens (PDF)

"[M]ost circuit courts of appeals agree that ERISA requires that causation between the alleged breach and the claimed loss must be established before any liability may be imposed upon a breaching fiduciary. The courts are split, however, as to whether an ERISA plaintiff or the defendant-fiduciary bears the burden of proving the causal link between breach and loss. In other words, does the burden compose an element of the claim and thus fall upon the plaintiff, or does the burden constitute an affirmative defense and thus fall upon the defendant-fiduciary?"

New Jersey Gov. Christie's Budget Proposes Pension Overhaul

"The so-called Roadmap for Reform would freeze the existing pension plan and have the New Jersey Education Association [NJEA] take ownership of a new pension fund for educators. The state would be required by a constitutional amendment to fund its current obligations over the next 40 years. In exchange, the unions would agree to significant health care cost savings to offset the costs."

Employer Violated COBRA When Hours Reduction Hiked Premiums

"The fact that the reduction in hours resulted in an increase in their premiums constituted a 'loss of coverage' for COBRA purposes. Also, the employer's disclosures were inadequate in explaining this outcome. This resulted in both a COBRA notice failure and a breach of fiduciary duty under ERISA.... Here, the two individuals had to pay 100 percent of premiums once they were suspended -- prior to that, they only paid 5 percent and 18.5 percent of the premium, respectively. This increase of premiums was a loss of coverage for COBRA purposes that was a direct result of their reduction in hours, the court found."

Senate Passes Legislation on ERISA 4062(e); Bill May See Action in Lame Duck Session (PDF)

"A bill unanimously passed by the Senate that would clarify what constitutes a 'substantial cessation of operations' under ERISA Section 4062(e) may see action in the House during Congress's lame duck session. Under S. 2511, passed by senators Sept. 16, a substantial cessation of operations would be clarified to ... change the liability trigger from 20 percent of plan participants to 15 percent of all employees of the employer. They also specify that a cessation of operations must be 'permanent.' These clarifications are supported by the business community, which say the regulations proposed to implement this law have been too broad, too expensive and make business planning difficult."

California Cities, Counties Need Statewide Pension Reform Initiative

"California voters suffered another defeat at the hands of special interests this month when public employee unions judicially blocked a Ventura County pension reform initiative from the November ballot, further underscoring the need for strong statewide action to allow local governments to control pension costs.... A well-drafted constitutional amendment would ... remove the numerous government employee union roadblocks thwarting local pension reforms ... and provide much needed clarity to conflicting laws and regulations."

Court Finds No ERISA Sec. 510 Violation for Self-Insured Plan That Denied Coverage to Same-Sex Spouse

"A same-gender couple had argued that, in light of U.S. v. Windsor, because the plan declined to cover the spouse, the employer interfered with the attainment of benefits. However, the court noted, that only narrower ERISA claims were the focus of the lawsuit -- not other federal laws or constitutional issues. As such, as ERISA currently stands, employers have the right to design their plans as they see fit -- as long as someone's employment is not adversely affected." [Jane Roe and Jane Doe v. Empire Blue Cross Blue Shield and St. Joseph's Medical Center, No. 12-cv-04788 (S.D.N.Y. May 1, 2014).]