2014 employment law updates every dentist should know

Ali Oromchian examines some changes that can affect practices

As we welcome another new year, there are many changes and updates to employment laws across the United States that are important and relevant to your practice. 2013 saw a reduction of more than 30% in the number of labor and employment bills enacted as compared to 2012, but new legislation in 2014 provides for changes that are just as important as ever for both large and small employers.

Changes to employment law this year run the gamut, spanning health care, Health Insurance Portability and Accountability Act (HIPAA), social media policy, minimum wage, and arbitration agreements.  

The Patient Protection and Affordable Care Act

The Patient Protection and Affordable Care Act (Affordable Care Act) includes measures meant specifically for small employers that help lower premium cost growth and increase access to affordable, high-quality health insurance.  Currently, small businesses (up to 50 full-time employees) pay on average 18% more than big businesses (more than 50 full-time employees) for health insurance because of administrative costs.  

The small business Health Care Tax Credit, offered as part of the Affordable Care Act, helps small employers afford the cost of health care coverage for their employees.  The credit is designed to encourage small employers to offer health insurance coverage for the first time or maintain coverage they already have for employees. Beginning in 2014, there will be a tax credit of 50% to help offset the costs of insurance.  It is available to qualified small employers of up to 50 employees that participate in the Small Business Health Options Program (SHOP). SHOP offers small employers increased purchasing power to obtain a better choice of high-quality coverage at a lower cost. To enroll, eligible employers must have an office within the service area of the SHOP and offer SHOP coverage to all full-time employees. Enrollment for SHOP is open now.

The Affordable Care Act creates incentives to promote employer wellness programs and encourage employers to promote and support healthier workplaces. Health-contingent wellness programs generally require employees to meet a specific standard related to their health to obtain a reward, such as programs rewarding employees who don’t use tobacco and programs rewarding employees who achieve lowered cholesterol levels. Under final rules effective January 1, 2014, the maximum reward to employers using a health-contingent wellness program will increase to 30 percent of the cost of health coverage. The maximum reward for programs designed to prevent or reduce tobacco use will be as high as 50 percent.

Health Insurance Portability and Accountability Act (HIPAA)

Effective September 23, 2013, and through 2014 into the future, the new HIPAA rules are important for medical professionals to know and understand. They are part of sweeping changes made to the HIPAA Privacy and Security Rules through enactment of the Health Information Technology for Economic and Clinical Health (HITECH) Act.  The new rules expand the obligations of physicians and other health care providers to protect patients’ protected health information (PHI), extend these obligations to a host of other individuals and companies who have access to PHI, and increase the penalties for violations of any of these obligations. There are several areas to focus on when implementing these changes:

Breach notification requirements — The obligation to notify patients if there is a breach of their protected health information (PHI) is expanded and clarified under the new rules. There is now a rebuttable presumption of a breach, and breaches must be reported unless, after completing a risk assessment using four factors, it is determined that there is a low probability of PHI compromise. 

Disclosures to health plans — At the patient’s request, physicians and other health care providers may not disclose information about care the patient has paid for out-of-pocket to health plans, unless for treatment purposes or in the rare event the disclosure is required
by law.  

Marketing communications — The new rules further limit the circumstances when physicians and other health care providers may provide marketing communications to their patients in the absence of the patients’ written authorization. 

Notice of Privacy Practices (NPP) — Physicians and other health care providers must amend their NPPs to reflect the changes set forth above, including those related to breach notification, disclosures to health plans, and marketing of PHI.

Social media privacy policy

Legislation has been introduced or is pending in at least 36 states that governs social media and online privacy in the workplace. Ten states — Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont, and Washington — enacted legislation in 2013. Fifteen states have 2014 legislation governing employee and applicant social media and online privacy — California, Florida, Georgia, Hawaii, Illinois, Iowa, Kansas, Massachusetts, Minnesota, New Hampshire, New York, North Carolina, Ohio, Rhode Island, and Wisconsin. Typical of the social media privacy legislation is new legislation in Florida, which prohibits an employer from requesting or requiring access to a social media account of an employee or prospective employee and prohibits an employer from taking retaliatory personnel action for an employee’s failure to provide access to his or her social media account.  Further, it prohibits an employer from failing or refusing to hire a prospective employee who does not provide access to his or her social media account.

Arbitration agreements

Several cases in the last year shed light on what rules will govern employer arbitration agreements going forward. The United States Supreme Court ruled in 2013 that arbitration agreements containing class action waivers are enforceable, even if individual arbitration is economically unfeasible, but employers must ensure the agreement contains an express waiver of class action arbitrations. The Ninth Circuit, applying California law, recently ruled that an employer cannot present an arbitration agreement on a “take it or leave it” basis when an employee submits an employment application.  Recent California cases have held that an employer must choose a reputable arbitration forum whose rules are accessible and balanced, the employer must give the arbitration terms to the employee when he signs the agreement, and the arbitration clause must be readily identifiable.

Minimum wage

Laws have been enacted in many states that raise the minimum wage effective in 2014. These states include the following:

• Arizona ($7.90/hour effective 1/1/2014)
• California ($9.00/hour effective 7/1/2014)
• Colorado ($8.00/hour effective 1/1/2014)
• Connecticut ($8.70 effective 1/1/2014)
• Florida ($7.93/hour effective 1/1/2014)
• Missouri ($7.50/hour effective 1/1/2014)
• Montana ($7.90/hour effective 1/1/2014)
• New Jersey ($8.25/hour effective 1/1/2014)
• New York ($8.75/hour effective 12/31/2014)
• Ohio ($7.95/hour effective 1/1/2014)
• Oregon ($9.10/hour effective 1/1/2014)
• Rhode Island ($8.00/hour effective 1/1/2014)
• Vermont ($8.73/hour effective 1/1/2014)
• Washington ($9.32/hour effective 1/1/2014)

Employee handbooks

With all of the changes to employment law in 2014, covering everything from health care to social media privacy and minimum wage, it is important that an employer’s employee handbook is updated to reflect these changes.

To avoid mistakenly violating these and other important employment laws, we recommend using services such as HR for Health that ensure that you are compliant with all the necessary federal and state laws.