Tax treatment of cafeteria plans. Internal Revenue Service (IRS), Treasury. Final regulations

This document contains final regulations relating to section 125 cafeteria plans. The final regulations clarify the circumstances under which a section 125 cafeteria plan election may be changed. The final regulations permit an employer to allow a section 125 cafeteria plan participant to revoke an existing election and make a new election during a period of coverage for accident or health coverage or group-term life insurance coverage.     

Performance of functions; claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended. Final rule

On June 8, 2005, the Department of Labor (DOL) published interim final regulations that govern its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act). Part B of the Act provides lump-sum payments of $150,000 and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B also provides lump-sum payments of $50,000 and medical benefits to individuals found eligible by the Department of Justice (DOJ) for $100,000 under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or calendar years of qualifying wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any calendar years of qualifying wage-loss). Part E also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of RECA and, where applicable, to survivors of such employees. At the same time the Department published the interim final regulations, it also invited written comments and advice from interested parties regarding possible changes to those regulations. This document amends the interim final regulations based on comments that the Department received.     

COBRA's draconian penalties.

In June 1987 the Internal Revenue Service issued proposed regulations clarifying the penalties to be imposed for noncompliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA). These regulations met with ardent objections from employers because of the scope of the sanctions. Not only does a noncomplying employer lose its tax deduction for health plan contributions, for example, but so does any successor employer or member of a multiemployer plan to which the offending employer belongs. The IRS has also been criticized for neglecting to differentiate in the regulations between significant and minor violations and for neglecting to define what it means when it refers to a violation being corrected. In the following article the author explores these problems and their effect on employers as well as Congress's recent efforts to ease the COBRA penalty burden.     

Occupational exposure to ethylene oxide--Occupational Safety and Health Administration. Proposed rule and notice of hearing

By this notice, the Occupational Safety and Health Administration (OSHA) is proposing to amend its existing occupational standard that regulates employee exposure to ethylene oxide (EtO). The basis for this action is a determination by the Assistant Secretary, based on animal and human data, that exposure to EtO at OSHA's current permissible exposure limit (PEL) of 50 parts EtO per million parts of air (50 ppm) as an eight (8)-hour time-weighted average (TWA) is inadequate for employee health protection. OSHA proposes to reduce the PEL for EtO to a TWA of 1 ppm. An "action level" of 0.5 ppm as a TWA is included in the proposal as a mechanism for exempting an employer from the obligation to comply with certain requirements, such as employee exposure monitoring and medical surveillance, in instances where the employer can demonstrate that the employees exposures are at very low levels. The proposal would provide for among other requirements certain methods of exposure control, personal protective equipment, measurement of employee exposures, training, medical surveillance, signs and labels, regulated areas, emergency procedures and recordkeeping.     

法律规制视野下的劳动者休假权——以节日文化与钟点时间的历史演进为进路

自机械钟表发明以来，钟点时间（clocktime）日益深入地影响了劳动者个人及其家人的身体作息。伴随着工厂制度和劳动力受雇用情况的出现，时间变成了金钱，变成了雇主的金钱。劳动者身体受到时间无所不在的牵制，也开始变成一个俗常的行为。特别是20世纪初以来，劳动者基本权利之演进和劳动者工作时间之人性化探讨，又不断彰显其在法律体系中的重要意义。因此，以节日文化的法律规制之历史演进为研究进路，研究在钟点时间（clocktime）的规约下，调整劳动法律关系出现的原因，从政治、经济特别是法律文化的视域，阐述节假日功能与劳动者休假权保护的多元商谈价值及其法理基础，就有了一种特别的人文关怀。     

Occupational Safety and Health Administration--Access to employee exposure and medical records. Final rule

This final occupational safety and health standard, promulgated today as a revised 29 CFR 1910.20, provides for employee, designated representative, and OSHA access to employer-maintained exposure and medical records relevant to employees exposed to toxic substances and harmful physical agents. Access is also assured to employer analyses using exposure and medical records. The final standard requires long term preservation of these records, contains provisions concerning informing employees of their rights under the standard, and includes provisions protective of trade secret information.     

Sick leave for family care purposes. Office of Personnel Management. Final rule

The Office of Personnel Management is issuing final regulations to expand the use of sick leave for family care purposes. Under the final regulations, an employee may use a total of up to 12 weeks of accrued sick leave each year to care for a family member with a serious health condition. This benefit broadens the options available for employees to meet their family responsibilities.     

Smoking in the work place: a management perspective.

In the past, smoking in the private work place has been a matter left largely to the discretion of individual employees and employers. A recent poll of the nation's largest service and industrial companies indicates a strong employer preference for this noninterventionist approach by which employees work out smoking-related problems among themselves. Nonetheless, approximately eight states and four dozen localities have passed legislation regulating smoking in the private work place, apparently in response to the courts' reluctance to order such restrictions where the employer has undertaken reasonable efforts to accommodate smokers and nonsmokers. While these laws vary widely in their language and specifics, they may pose significant practical and compliance problems for employers. In the following article, the authors examine judicial, legislative, and employer responses to work-place smoking issues and discuss the options of private employers for coping with this problem.     

Limiting your risks in the new Russian roulette--discharging employees

Time was when an employer had the freedom to discharge employees for a good reason, a bad reason, or no reason at all. As more and more employees bring claims of "wrongful discharge" to courts, however, employers' discretion to terminate employees at will is being restricted. This is particularly so where cases are presented before juries, which tend to be more sympathetic to the employee's plight. In the following article, the author examines the circumstances under which courts are now finding employers responsible for wrongful discharge. He also discusses ways in which employers can limit their exposure to wrongful discharge claims.     

Employer remedies for work stoppages that violate no-strike provisions

An employer faced with a work stoppage that violates a contractual no-strike provision has several alternatives: the employer can seek an injunction against the strike, discipline employees involved in the strike, or attempt to recover damages for violations of the collective bargaining agreement. Each of these remedies, however, presents practical problems in terms of employer-employee relations as well as legal questions regarding the extent of relief available. In the following article, the author examines the remedies available to an employer when employees engage in activity that violates a no-strike provision. He also examines the impact of recent cases on an employer's ability to enforce a no-strike pledge.     

Treatment of research-related injuries to human subjects--VA. Final rule

This final rule amends the Department of Veterans Affairs (VA) medical regulations to provide (or to pay for the provision of) necessary medical treatment to certain human subjects injured as a result of participation in VA research. Under the final rule all participants in research approved by a VA Research and Development Committee (regardless of source of funding), and conducted under the supervision of one or more VA employees, are eligible for treatment unless injuries are due to noncompliance by a research subject with study procedures. VA will provide medical care in those circumstances where VA has some responsibility for the need for medical care.     

Federal employees health benefits: payment of premiums for periods of leave without pay or insufficient pay. Final rule

The Office of Personnel Management (OPM) is issuing final regulations to rewrite certain sections of the Federal regulations in plain language. These final regulations require Federal agencies to provide employees entering leave without pay (LWOP) status, or whose pay is insufficient to cover their Federal Employees Health Benefits (FEHB) premium payments, written notice of their opportunity to continue their FEHB coverage. Employees who want to continue their enrollment must sign a form agreeing to pay their premiums directly to their agency on a current basis, or to incur a debt to be withheld from their future salary. The purpose of this final regulation is to rewrite the existing regulations to ensure that employees who are entering LWOP status, or whose pay is insufficient to pay their FEHB premiums, are fully informed when they decide whether or not to continue their FEHB coverage.     

The use of medical examinations for employment purposes

This article examines a number of legal issues which arise where medical examinations or tests are used in the employment context, either to test the suitability of a prospective employee in pre-employment situations or to ascertain the fitness of existing employees. Employer justifications for seeking medical information usually relate to attempts to comply with health and safety legislation and to reduce workers compensation costs. This article discusses the legal obligations involved in pre-employment medical testing and, in particular, employee obligations to provide correct information in relation to their health to a prospective employer. It also notes the consequences for employees of providing false information in relation to workers compensation claims and dismissal cases. The article notes the growing trend of requiring drug and alcohol testing for existing employees, particularly in the mining industry. The article concludes by noting that employers need to take care in seeking medical information, and that it should not simply be done as a mechanical, matter-of-course exercise. Failure to observe anti-discrimination laws may result in the employer facing allegations of misuse of medical information and claims for damages for discrimination.     

Nevada State plan; final approval determination. Occupational Safety and Health Administration (OSHA), U.S. Department of Labor. Final State plan approval--Nevada

This document amends OSHA's regulations to reflect the Assistant Secretary's decision granting final approval to the Nevada State plan. As a result of this affirmative determination under section 18(e) of the Occupational Safety and Health Act of 1970, Federal OSHA's standards and enforcement authority no longer apply to occupational safety and health issues covered by the Nevada plan, and authority for Federal concurrent jurisdiction is relinquished. Federal enforcement jurisdiction is retained over any private sector maritime employment, private sector employers on Indian land, and any contractors or subcontractors on any Federal establishment where the land is exclusive Federal jurisdiction. Federal jurisdiction remains in effect with respect to Federal government employers and employees. Federal OSHA will also retain authority for coverage of the United States Postal Service (USPS), including USPS employees, contract employees, and contractor-operated facilities engaged in USPS mail operations.     

Reporting by multiple employer welfare arrangements and certain other entities that offer or provide coverage for medical care to the employees of two or more employers. Final rule

This document contains a final rule governing certain reporting requirements under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) for multiple employer welfare arrangements (MEWAs) and certain other entities that offer or provide coverage for medical care to the employees of two or more employers. The final rule generally requires the administrator of a MEWA, and certain other entities, to file a form with the Secretary of Labor for the purpose of determining whether the requirements of certain recent health care laws are being met.     

PPOs: the employer perspective

This paper reports the results of a national survey on employer experiences with preferred provider organizations (PPOs). The survey, conducted in 1987, included information from almost 700 telephone interviews with employee benefit managers. We found that 11 percent of employees are in PPOs. PPOs now have a strong presence among employers of all sizes. However, whereas they are a major force in the West, where almost one-third of employees are members, they have garnered only a 1 percent market share in the East. We examine the impact of PPOs on health insurance premiums and on employer satisfaction. The results show that in 1987, the year of the survey, PPOs appeared to provide mild cost savings compared to conventional insurance, and that employers were very satisfied with almost all aspects of PPOs, whereas they were surprisingly critical of their HMOs.     

Plans established or maintained pursuant to collective bargaining agreements under section 3(40)(A)--Pension and Welfare Benefits Administration. Notice of intent to form a negotiated rulemaking advisory committee

The Department of Labor (Department) intends to form a Negotiated Rulemaking Advisory Committee (Committee) in accordance with the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act. The Committee will negotiate the development of a proposed rule implementing the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001-1461 (ERISA). The purpose of the proposed rule is to establish a process and criteria for a finding by the Secretary of Labor that an agreement is a collective bargaining agreement for purposes of section 3(40) of ERISA. The proposed rule will also provide guidance for determining when an employee benefit plan is established or maintained under or pursuant to such an agreement. Employee benefit plans that are established or maintained for the purpose of providing benefits to the employees of more than one employer are "multiple employer welfare arrangements" under section 3(40) of ERISA, and therefore are subject to certain state regulations, unless they meet one of the exceptions set forth in section 3(40)(A). At issue in this regulation is the exception for plans or arrangements that are established or maintained under one or more agreements which the Secretary finds to be collective bargaining agreements. If adopted, the proposed rule would affect employee welfare benefit plans, their sponsors, participants and beneficiaries, as well as service providers to plans. It may also affect plan fiduciaries, unions, employer organizations, the insurance industry, and state insurance regulators.     

Performance of functions; claims for compensation under the Energy Employees Occupational Illness Compensation Program Act. Interim final rule; request for comments

This document contains the interim final regulations governing the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the Department of Labor (Department or DOL). Part B of the Act provides uniform lump-sum payments and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B of the Act also provides smaller uniform lump-sum payments and medical benefits to individuals found eligible by the Department of Justice (DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or years of established wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any years of established wage-loss). Part E of the Act also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of the RECA and, where applicable, to survivors of such employees. The Office of Workers' Compensation Programs (OWCP) administers the adjudication of claims and the payment of benefits under EEOICPA, with the Department of Health and Human Services (HHS) estimating the amounts of radiation received by employees alleged to have sustained cancer as a result of such exposure and establishing guidelines to be followed by OWCP in determining whether such cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for notifying potential claimants and for submitting evidence necessary for OWCP's adjudication of claims under EEOICPA.     

Employee Insolvency Priorities and Employment Protection in France,Germany, and the United Kingdom

When an employer becomes insolvent, employees’ claims for unpaid wages and contributions may be protected through statutory priorities, social security schemes, or a combination of both. This article compares the interplay of employee statutory priorities, if they exist, and social security schemes in France, Germany, and the United Kingdom. While France protects employees through both a statutory priority and a social security scheme, Germany and the United Kingdom have progressively reduced employment protection over the last forty years. Theories of varieties of capitalism and of legal origins cannot fully describe and explain the development of employment protection strategies in these countries. The evolution of the German and British regimes, in particular, are better explained as a sign of profound cultural shifts regarding the position of labour within firms and vis‐à‐vis other stakeholders. Finally, I also show that a cumulative application of employee priorities and insurance schemes is not necessarily redundant.     

Medicare program; reduction in Medicare Part B premiums as additional benefits under Medicare+Choice plans. Final rule

This final rule revises the regulations to provide for a Medicare+Choice organization to offer a reduction in the standard Medicare Part B premium as an additional benefit under one or more Medicare+Choice (M+C) plans. The legislation specifies that the reduction to the Medicare Part B premium cannot exceed the standard Medicare Part B premium amount and cannot be applied to surcharges. Surcharges are increased premiums for late enrollment and for reenrollment. The Medicare Part B premium may be collected by a variety of methods: Paid directly to the Centers of Medicare & Medicaid Services by the beneficiary; collected as an adjustment to any Social Security, Railroad Retirement, or Civil Service Retirement benefits; paid by an employer as part of an annuity package; or, paid by the State for individuals enrolled in a qualifying State Medicaid program. This legislation applies to benefits under Medicare M+C plans offered by an M+C organization electing this option, beginning January 1, 2003. This final rule revises the regulations to set out the basic rules under section 606 of the Medicare, Medicaid, and SCHIP Benefits Improvement Protection Act of 2000 (BIPA) for adjustment and payment of the Medicare Part B premium.