Employment Law This Week®: DOL’s Association Health Plan Proposal, NJLAD Includes Nursing Mothers, New Unpaid Intern Test, HHS’s Conscience-Based Protections

by Epstein Becker & Green
We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) DOL Proposes See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) DOL Proposes Expanded Options for Employers to Form Association Health Plans

Our top story: The Department of Labor (DOL) proposes expanding health insurance options for employers. The proposed new regulations would allow small businesses and self-employed individuals to join together to form group association health plans. Groups could be formed on the basis of geography or industry. The proposal is available for public comment until March 6. Adam Solander, from Epstein Becker Green, has more:

“This could be significant for employers, especially small employers and individuals who may be self-employed. There's two things that this does. First, it allows them to band together and harness economy of scale. This will allow them to negotiate as one unit. The other thing that it does is, allowing them to be regulated under insurance law as a large employer plan or as a self-funded plan gets rid of a lot of the regulation that's specific to individual and small employer plans. Under the ACA, under the Public Health Services Act, under ERISA, individual and small employer plans are regulated much more heavily. At the end of the day, this could mean that they could get a much better deal on insurance, both from the ability to negotiate, as well as from the less regulation that will now apply to these associations.”

(2) New Jersey Amends Discrimination Law to Include Nursing Mothers

There’s a new protected class in New Jersey. A new amendment to the New Jersey Law Against Discrimination makes breastfeeding mothers a protected class under the law. The state is the latest to join an expanding movement to increase workplace protections for nursing mothers. Effective immediately, it is unlawful for employers to discriminate or retaliate against an employee working in New Jersey who is breastfeeding or expressing milk for her child. The amendment also requires employers to provide reasonable break time and a private location for nursing women, unless doing so would create an undue hardship for the employer.

(3) DOL Adopts New Test for Unpaid Interns

The DOL adopted the “primary beneficiary” test for determining whether interns must be paid for their working time. The test evaluates the relationship between an intern and an employer to determine which party is the primary beneficiary. If the employer is found to be the primary beneficiary, the intern will be considered an employee, entitled to be paid at least the minimum wage and for overtime. This test brings the DOL in line with rulings by several federal appellate courts.

(4) New Conscience Protections for Doctors and Nurses

The Department of Health and Human Services (HHS) announced new conscience-based protections for health professionals. HHS has proposed new protections for doctors and nurses who refuse to participate in services that run counter to their moral or religious beliefs. The protections cover moral or religious objections to participating in abortions as well as assisted suicide and sterilization, among other procedures. This change would have an immediate impact on how health care organizations discipline and assign employees and may give rise to issues that will need to be addressed in collective bargaining agreements. Public comments are now being accepted on the proposed rule.

(5) Tip of the Week

Peter Damiano, Vice President and Associate General Counsel for J.Crew Group, is here with some best practices for sending an employee overseas:

“First, think holistically about how to structure your employee’s assignment so it does not expose your company to new corporate tax risks. Plan ahead. Immigration documents and work permits can take several months to secure, so you'll want to start that process well in advance. Tailor non-compete language to ensure it remains enforceable under the local laws of the new country. Also, the employee's benefits may need to be restructured. Oftentimes, current benefits will need to be suspended and new ones that follow the local country’s pension or Social Security requirements will need to be offered. Finally, most expats will want to ensure their individual tax remains the same, so your organization should consider tax provisions in both jurisdictions in order to work through the difference.”

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