The Department of Labor intends to issue a proposed rule in October revising the regulations implementing the FLSA’s overtime exemptions for executive, administrative, and professional employees. The US Supreme Court has ruled that employer health insurance plans can limit coverage for end stage renal disease. OSHA has extended its national emphasis program for COVID-19 that covers healthcare facilities as well as meat and poultry processing plants. The Workplace Misconduct Accountability Act has been introduced in the House of Representatives to safeguard against the abuse of non-disclosure agreements.

DOL Plans to Issue Revised Overtime Regulations – The Department of Labor (DOL) published in its semi-annual regulatory agenda that it intends to review the regulations implementing the exemption of executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. DOL advised that it plans to issue a notice of proposed rule making in October. The salary basis threshold for overtime exemptions  was increased in 2019 from $23,660/year to $35,568/year. Previously, Secretary of Labor Marty Walsh stated that he believes the salary basis threshold is too low and as part of the review, the Labor Department will consider whether regular and automatic updates are needed.  

Supreme Court Decides that Health Plans Can Limit Coverage – The United States Supreme Court ruled in the case of Marietta Memorial Hospital Employee Health Plan v. DaVita Inc. that health plans can make coverage for treatment of certain diseases out of network only. In 1972, Congress extended Medicare coverage to individuals with end stage renal disease regardless of age or disability. Due to rising costs, Congress passed the Medicare Secondary Payer statute that makes Medicare a secondary payer to existing health insurance for certain medical services including dialysis when that plan already covers the same services. Justice Kavanaugh who wrote the majority opinion concluded that “because the Plan provides the same outpatient  dialysis benefits to all Plan participants, whether or not a participant is entitled to or eligible for Medicare, the Plan cannot be said to take into account whether its participants are entitled to or eligible for Medicare.”

The Marietta Memorial Hospital Employee Health Benefit Plan is an employer-sponsored group health plan. The Plan offers the same terms of coverage for dialysis to all participants. But under the Plan, outpatient dialysis services are subject to relatively limited reimbursement rates. In 2018, DaVita, which provides dialysis services sued the Plan, arguing that the Plan’s limited coverage for outpatient dialysis both (i) differentiates between individuals with and without end-stage renal disease and (ii) takes into account the Medicare eligibility of individuals with end-stage renal disease in violation of the Medicare Secondary Payer statute. The Sixth Circuit Court of Appeals concluded that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease. There was a conflict concerning this issue between the Sixth Circuit and the Ninth Circuit, which resulted in the Supreme Court agreeing to review the case.

The Supreme Court found that the Medicare Secondary Payer statute and its regulations did not include a disparate impact theory. The court noted that there was no basis for determining when coverage for outpatient dialysis would be considered inadequate. The statute according to the court “simply coordinates payments between group health plans and Medicare” and does not require a level of coverage for dialysis by group health plans.

The National Kidney Foundation issued a statement expressing concern with the impact of the Supreme Court's decision. According to the statement, “Some individuals with kidney failure will have to pay for both Medicare benefits (which cover their dialysis needs) AND their employer sponsored benefits (which may cover supplemental services such as vision and dental). Other patients may have to transition to Medicare completely and potentially lose supplemental benefits.”

OSHA Extends COVID-19 National Emphasis Program – The Occupational Safety and Health Administration (OSHA) is extending its National Emphasis Program for COVID-19 indefinitely. The program was started in March 2021. According to OSHA, “The program focuses enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus, and on employers who engage in retaliation against workers who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.” OSHA also temporarily increased the coronavirus inspection goal from 5% of inspections to 10% while it continues to work on finalizing a permanent coronavirus health care standard. Due to a projected increase in hospitalizations in the coming weeks, OSHA will continue to prioritize inspections at workplaces such as hospitals, assisted living facilities, and nursing homes that have a higher possibility of exposure to COVID-19. The program also will continue to cover non-health care industries such as meat and poultry processing.

Workplace Misconduct Accountability Act Introduced – Representative Carolyn Maloney (D-NY), chairwoman of the House Committee on Oversight and Reform along with eight cosponsors have introduced the Accountability for Workplace Misconduct Act (H.R. 8146). The bill is designed to make “reforms that would safeguard against the abuse of non-disclosure, confidentiality, and non-disparagement agreements that silence victims of workplace misconduct and establish requirements for employers when conducting investigations of harassment, discrimination, and retaliation complaints.”

The bill would prohibit the use of post-dispute non-disclosure agreements that would limit, prevent, or interfere with the ability of employees to disclose workplace misconduct to government agencies or Congress. Employers would be required to provide employees who agree to enter into a post-dispute non-disclosure agreement with a 21-day consideration period and a 7-day revocation period. Employers would need to develop and inform employees of a policy that includes several methods for reporting workplace misconduct that includes confidential reporting. Employers also would be required to provide reports concerning the status and outcome of investigations. The Equal Employment Opportunity Commission (EEOC) would administer the law by developing regulations to educate employers of their responsibilities and employees of their rights and to process complaints.

Representative Maloney and eight cosponsors also introduced the Professional Images Protection Act (H.R. 8145) that would require employers to provide employees with written notice and consent prior to using professional images including disclosing who would have access to the professional images and how they would be used. The bill would establish fines for employers who violate the notice and consent requirements.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.