Category Archives: Health Care Reform

Portland, Oregon, Mandates Employer-Provided Sick Leave

Jackson March 15, 2013
Following examples set by San Francisco to the South, and Seattle
to the North, the Portland, Oregon, City Council unanimously passed
Portland’s new sick leave ordinance. The new law imposes significant
burdens on employers in addition to mandating up to 40 hours of annual
sick leave. The new sick leave entitlements apply to all private-sector
employers, regardless of location of the employer’s primary place of
business. The law goes into effect January 1, 2014.

Under the leave law, private employers with at least six employees
will be required to provide qualifying employees up to 40 hours of paid sick leave per year. Employers with fewer than six employees still must provide up to 40 hours of unpaid sick leave per year.
All employees, regardless of whether they are temporary, part-time or
full-time, have the right to use protected sick leave if they work in
Portland at least 240 hours within a calendar year. Employees based
elsewhere, but who travel to Portland for business, accrue only benefits
for paid work hours within the city limits and are subject to the
240-hour threshold.
After the January 1, 2014, effective date, employees working in
Portland will accrue sick leave at the minimum rate of one hour for
every 30 hours worked. Newly hired employees accrue leave at the same
30:1 ratio from the outset of employment, but are subject to a 90-day
waiting period before accrued leave may be taken.
Unused sick time can be carried over to the following calendar year,
but an employee’s annual use of sick time accrued under the new law is
capped at 40 hours.
Employers may not require employees wishing to take leave accrued
under the new law to find a replacement worker, nor may employers
require employees to work an alternate shift to make up for time missed.
Conversely, if an employer permits shift trading and a shift is
available, employees must be permitted to trade shifts to avoid using
accrued sick leave.
The law extends well beyond traditional “sick” leave. As an initial
matter, the leave may be taken not only for an employee’s own illness,
injury or preventive medical care, but also for a qualifying family
member’s similar needs. “Family member” is broadly defined to include
the employee’s children, parents, parents-in-law, grandparents,
grandchildren and registered same-sex domestic partners. Additionally,
sick leave may be taken for absences resulting from workplace or school
closures, or for reasons related to domestic violence, sexual assault or
stalking that affect the employee or the employee’s family members.
The new law prohibits employers from taking any adverse action
against employees who take leave accrued under the ordinance. Therefore,
employers will find it difficult to enforce no-fault attendance
policies lawfully in light of these new requirements. Further, because
the new law mandates accrual and tracks usage on a calendar-year basis,
employers with Portland-based employees likely will find it too onerous
to implement time-off policies based on an employee’s hire date. In
addition to these and other systemic changes that may be necessary,
employers are required under the law to develop and disseminate policies
advising employees of the procedure for reporting absences. Adding
extra complexity, successor employers are required to recognize sick
leave accrued under the new law. Finally, covered employers will be
required to post a notice describing the new law.
Covered employers that fail to comply with the sick leave
obligations, including the new posting requirement, are subject to civil
penalties. Employees who believe their employer interfered with or
failed to provide them with the minimum benefits under the new law may
bring an action for injunctive relief and back pay, as well as
attorneys’ fees and costs.
Employers covered by the new requirements should review their
existing policies carefully. While employers currently providing leave
entitlements equal to or greater than Portland’s new requirements may be
exempted from providing additional leave, that exemption applies only
if the existing policies are co-extensive with the new requirements.
Consequently, many employers will need to modify their policies and may
need to negotiate changes in collective bargaining agreements to
integrate the law’s new requirements.
Jackson Lewis attorneys routinely work with employers of every size
throughout Oregon on compliance and implementation strategies, including
the many nuances of this new leave requirement. If you have any
questions about this or other workplace developments, please contact
Scott Oborne,, or Mark Crabtree,, in our Portland office at (503) 229-0404, or
the Jackson Lewis attorney with whom you regularly work.






© 2013, Jackson Lewis LLP. This Update is provided for informational
purposes only. It is not intended as legal advice nor does it create an
attorney/client relationship between Jackson Lewis LLP and any readers
or recipients. Readers should consult counsel of their own choosing to
discuss how these matters relate to their individual circumstances.
Reproduction in whole or in part is prohibited without the express
written consent of Jackson Lewis LLP.

How will the exchanges actually work

THis weeks collection of rules, regs and insights into Health Care Reform comes in the form of a guidance letter from CMS CCIIO (you gotta love that) – the Center for Consumer Information and Insurance Oversight.  It provided some missing details.


Individuals going to the exchange (now “The Marketplace”), after they have put in their application information and selected a plan, will be directed to the insurers website to make payment arrangements, select primary care physicians, and provide any other needed information.

Inusrance Carriers will share information daily with the Federal Exchange on enrollments, updatesd and cancellations.  CMS will operate a call center (English and Spanish) to provide basic information about the exchange and the options on it.


On another note, also released this week was the “HHS Notice of Benefit and Payment Parameters for 2014.”  This is a higly technical document having to do with risk adjustment pools inside Health Care Reform, and the many formulas used to calculate who gets what.  If you are really into “how the watch works” its fascinating reading.  Really. – Reeve

Quit – or pay ALOT more!

Under Health Care Reform, smokers can be charged 50% more than non-smokers for health insurance.  Life Insurance Premiums are already 250-300% higher for smokers.   This is a great article on companies that are already charging more… and how they are changing their processes. – Reeve

Marketwatch – Jen Wieczner 3/5/2013

Like many firms, Direct General places a hefty surcharge on the health
insurance of workers who smoke—an extra $480 a year in premiums. And for
years, the Nashville-based insurer levied the fine the way most other
businesses do: using the honor system.

But last year Direct General began requiring that the 1,400 employees in
its health plan prove their nonsmoking status by taking nicotine
screening tests, with the hope of getting a more accurate assessment.
Not surprisingly, perhaps, the proportion of employees paying the
tobacco surcharge has jumped, from 21% in 2010 to nearly 31% today. “We
had some very honest people,” says Bill Smith, the company’s senior vice
president for human resources. “And some who would say they weren’t
smokers and they were—lurking around the other side of the building
where no one would see them.”

While most firms that penalize smokers through tobacco surcharges—or
that reward nonsmokers with lower premiums—still rely on their
employees’ word, roughly 10% have started screening for nicotine (or its
biometric marker, cotinine) to keep their employees honest, estimates
Michael Wood, senior health management consultant at human resources
firm Towers Watson. That’s up from only a handful of firms a few years

Xerox this year began screening its employees for nicotine use, in
addition to assessing other health indicators, like cholesterol. The
company rewards employees with a $300 discount on their insurance if
they take the test and another $300 discount for testing tobacco-free
(up to $1,200 for an employee plus covered spouse), according to Xerox’s
employee benefits summary. Marathon Oil and construction firm Jacobs
Engineering Group also test their workers for nicotine, with nonsmokers
able to earn cash or premium reductions. (Representatives from Xerox,
Marathon and Jacobs did not respond to requests for comment.)

Experts believe more firms will put workers to the test, as they
increasingly levy steep fines on smokers: In 2014, nearly three-quarters
of employers plan to reward or penalize employees based on their
tobacco use, compared with only 44% this year, according to Towers
Watson. Starting next year, smokers may pay even more as new Affordable
Care Act guidelines, still being finalized, would allow employers to
penalize them with surcharges worth up to 50% of the total cost of their
health coverage—compared with the 20% currently allowed. For a company
with individual premiums of $100 a month, a smoker would pay $600 more
for the year than a nonsmoker, up from just an extra $240 this year. (In
practice, employers may offer non-tobacco-users a 50% “discount.”)

Companies say the onerous surcharges will encourage smokers to quit. But
raising them even further could backfire if people are more motivated
to lie to escape them. With so much money at stake, experts say
employers have to test workers, rather than rely on them to own up to
their cigarette habit. “If it’s self-reported, it doesn’t mean much,
because most people aren’t going to self-report that they smoke,” says
Sunit Patel, a senior vice president in Fidelity’s benefits consulting

Employers want to force the smokers to cough up the cash, which helps
cover their additional health-care expenses. (Employers pay an extra $21
per smoker per day in additional medical costs and lost productivity,
according to a white paper by rapid diagnostics firm Alere, or $7,874 a

Critics of nicotine screening, however, including the American Lung
Association, say the new tests can be unreliable. Plus, trusting
employees to be honest fosters a culture of ethics and trust: Paul
Terry, CEO of StayWell Health Management, which runs corporate wellness
programs, says instead of testing, employers should ask workers to sign a
legal-sounding pledge that they are tobacco-free, or even testify to it
over the phone. Introducing tests could damage morale, say some
wellness experts. “What is the actual effect of upsetting all of the
compliant folks for the sake of catching the few that are not?”says
Francois de Brantes, executive director for the Health Care Incentives
Improvement Institute.

At least one company has tried and rejected testing smokers. Affinia
Group, an industrial manufacturing firm based in Ann Arbor, Mich.,
required in 2011 and 2012 that employees take the test in order to
collect a $100 reward for being tobacco-free. But this year, the company
backed off, asking employees to simply admit whether or not they smoke.
“The reason for this switch is that we have a high level of trust in
our workforce, to be honest,” says Bob Soroosh, the company’s director
of benefit administration. But he notes that Affinia’s $100 tobacco-free
incentive isn’t so high that employees would lie to receive it: “Any
employer that is charging a medical plan premium of over $1,000 more for
smokers should only accept a third-party test, not a self-report,” he

While companies have so far been slow to implement nicotine
screenings—Alere says 99% of its corporate clients are still enforcing
tobacco-free surcharges with the honor system—some experts believe more
employers will turn to tests as pioneering firms report successful
results, such as collecting more surcharges. “I think it’s way too early
to say whether or not cotinine testing is leading to more people
telling the truth,” says Sean Bell, executive vice president of Alere
WellBeing, which recently began offering the company’s new saliva-based
cotinine test to employer clients. “It’s a hypothesis, and it’s one our
employers are willing to test.”

Meanwhile at Direct General, executives have been pleased by the
collection of more tobacco surcharges, which help fund the company’s
wellness programs. And employees—both smokers and nonsmokers—have been
satisfied knowing that everyone is paying what they deserve, says human
resources VP Smith. “We did anticipate that our reported tobacco user
rate would go up as a result of testing,” Smith says. “What we didn’t
anticipate was the reaction from many of our employees who were glad we
were testing so the surcharges would be fairly applied.”

Update – new fees and taxes on insurance companies

This is a quick summary, paraphrased from the Medical Mutual of Ohio broker update today.  Its obvious (to me) that these fees will all end up being paid, one way or another, by all of us. – Reeve

A new suite of taxes and fees is being assessed on
health plan sponsors in 2014 based on stipulations outlined in the
Affordable Care Act (ACA). This Special Broker Update is part of a
series of communications about these taxes and fees and how  we will
implement them.

The first fee, implemented in 2012, is the
Patient-Centered Outcomes Research Institute, or PCORI, fee. Currently
$0.16 for each covered member and each dependent, this fee will increase
to $0.18 for each in 2014. We will continue to separately disclose this
charge to fully insured groups only. Self-insured groups must pay this
fee directly to the government using IRS Form 720.

Beginning January 2014, other federal fees will be imposed. We expect them to be in the following ranges:

  • Reinsurance fee, approximately $5.25 per member per month
  • Market share fee, between 2 percent and 3 percent of the monthly premium

Reinsurance Fee
Medical Mutual will assess and collect the reinsurance fee across all medical
lines of business for all fully insured plans and self-funded groups;
excluded coverage includes stop loss, dental, vision and Medicare

Market Share Fee
Medical Mutual will assess the market share fee on all fully insured lines of business, including
dental and vision, with the exception of Medicare Supplement policies. Stop-loss applicability is to be determined.

Monthly Economic Update, March 2013

THE MONTH IN BRIEF As February ended, a central question seemed to preoccupy Wall Street: “When will the Dow hit a new record high?” Nothing seemed to shake the Street’s upbeat mood – not the $85 billion in federal budget cuts slated for March 1, not the real estate bubble in China or political uncertainty in Italy, not the still-anemic Q4 GDP reading or the abrupt decline in personal incomes. All told, the data stream offered much to keep Wall Street in a good mood: impressive numbers from the housing sector, rebounding consumer sentiment, continuing expansion in the manufacturing and service sectors. So the Dow ended the month at 14,054.49, with bulls holding an unyielding belief that it could reach a new all-time high in March – and the index did just that.1,2

DOMESTIC ECONOMIC HEALTH February wrapped up with no agreement between Congress and the White House to postpone the sequestration – a 9% budget reduction for domestic programs, a 13% reduction for defense programs and a 2% cut in Medicare payments to physicians. March 27 presents a deadline for an appropriations bill to keep federal government operations sufficiently funded; the sequester cuts might be retroactively altered or undone as a result.3 Word came from the Commerce Department that consumer incomes fell 3.6% in January, a clear effect of higher payroll taxes. Yet consumer spending held up, rising 0.2% in that month. So did consumer sentiment: the University of Michigan’s monthly index was at 77.6 in February, and the Conference Board’s consumer confidence poll soared to 69.0 last month, even with the jobless rate at 7.9%.4,5 If a rising stock market and general perception of an improving economy influenced the above numbers, tame inflation may have as well. In January, the Consumer Price Index was flat again. Retail prices had only increased 1.6% in 12 months. The troubling asterisk: core CPI (with food and energy prices factored out) rose 0.3% in January, a gain unmatched since May 2011. Also, retail sales increased just 0.1% in January compared to 0.5% in December. Wholesale inflation (as measured by the federal government’s Producer Price Index) was up 0.2% for January, and had increased 1.4% in the past year.6,7,8 The world certainly pays attention to the Institute for Supply Management’s twin purchasing manager indices, and the latest readings on the economy from ISM have been quite positive. Its non-manufacturing index rose to 54.2 in February (the best mark since June 2011) while its service sector index read 56.0 last month, up from 55.2 in January for the highest reading in 12 months.9,10 When the Federal Reserve’s January policy meeting minutes came out, they raised eyebrows – the Federal Open Market Committee had agreed to review its easy money policies in March, perhaps signaling an earlier-than-expected end to QE3. The Bureau of Economic Analysis revised its estimate of Q4 GDP to +0.1%.5,11

GLOBAL ECONOMIC HEALTH By the end of the month, Wall Street had one eye on China and another on Italy. The PRC finally set some limits on its runaway real estate market, imposing a whopping 20% capital gains tax on real property sales, demanding higher mortgage rates and down payments and requiring cities to adopt yearly price easing targets for their housing markets. China’s manufacturing PMIs barely showed expansion in February: the official PRC PMI came in at 50.1, while the HSBC PMI read 50.4. The People’s Bank of China forecasts 3% inflation in 2013, compared to 2.6% in 2012; Bloomberg sees China’s economy growing 8.1% in 2013, up from the 13-year low of 7.8% recorded by its government last year. 12,13

Italy’s national election produced a deadlock,
raising fears that austerity measures stipulated by the European Central Bank
could be rejected. Incumbent Prime Minister Mario Monti had been effectively
challenged by Beppe Grillo, a populist fiercely opposed to the euro, and – of
all people – disgraced former Prime Minister Silvio Berlusconi. (Italy’s jobless
rate hit a 21-year peak of 11.7% in February.) On the upside, European
Commission president José Manuel Barroso announced a federal surplus in Ireland
and smaller payment imbalances for Italy, Portugal, Spain, and Greece. On the
downside, the smaller deficits for those last four nations could be traced
largely to a reduction in imports stemming from sinking demand.4,14


Foreign benchmarks experienced much more turbulence than ours last month. A list of some losses: Hang Seng, -3.29%; NIFTY 50, -6.55%;
MERVAL, -11.95%; Bovespa, -3.91%; Euro STOXX 50, -2.57%; CAC 40, -0.26%; DAX,
-0.44%; MSCI World Index, -0.02%; MSCI Emerging Markets Index, -1.35%. The
gains: S&P/ASX 200, +3.27%; KOSPI, +3.51%; TOPIX, +3.79%; FTSE 100, +1.34%;
TSX Composite, +1.08%; S&P Asia 50, +0.52%.1,15


When was the last time gold racked up a five-month losing streak on the COMEX? You
have to go back to 1997 to find another example of that, yet that was its
dubious achievement in February. All key metals seemed to retreat last month:
gold went 5.0%, silver -9.3%, copper -4.9%, platinum
-5.5% and palladium -1.5%. Gold settled at just $1,572.30 on the COMEX on
February 28. The perception of an improving economy also hurt oil, which ended February at $92.05 a barrel, its lowest NYMEX settlement price of the
year. (It would head lower in early March). Natural gas futures, rose 4.4% in
February. The U.S. Dollar Index rose 3.46% last month.16,17,18

Could a seller’s market be emerging? That possibility
doesn’t seem so absurd given the latest round of indicators. Existing home
sales had improved 0.4% in January even as the inventory of homes reached its
lowest level April 2005, the National Association of Realtors noted;
year-over-year, home prices were up 12.9%. NAR also found pending home sales rising
4.5% in January, and December’s S&P/Case-Shiller Home Price Index recorded
a 6.8% 12-month increase. January also saw a 15.6% jump in new home sales,
which had increased 28.9% in a year.19,20,21,22

Between January 31 and February 28, home loan rates generally decreased. In that
interval (according to Freddie Mac), the average interest rate on the 30-year
FRM went from 3.53% to 3.51%. Average rates for the 15-year FRM went from
2.81% to 2.76%; the 5/1-year ARM, 2.70% to 2.61%; the 1-year ARM, 2.59% to


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Reeve Conover is a Registered Representative. Securities offered through Cambridge Investment Research, Inc., a Broker/dealer member FINRA/SPIC. Cambridge and Conover Consulting are not affiliated. Licensed in SC, NC, NY, CT, NJ, and CA. - SIPC - Brokercheck