UI profs: Health law could prompt employer retaliation

CHAMPAIGN — Workers could be in for some harassment and retaliation as employers seek to minimize their costs under the Affordable Care Act, according to a new study down by two University of Illinois law professors.

Suja Thomas, an employment discrimination expert, and Peter Molk, an insurance law expect, looked at conflicting incentives in the act — with employees looking to gain health coverage and some employers looking to avoid providing the coverage — and the consequences that could have for the employees.

Under the Affordable Care Act, nearly everyone will be required to have health coverage staring Jan. 1, 2014.

Requirements for employers with 50 or more employers to provide health coverage or pay penalties were also originally set to take effect next year, but have been delayed by one year.

Employers see extra health coverage costs ahead, and before employer requirements take effect in 2015, Congress needs to close loopholes that will allow for some unintended consequences for workers, the authors say.

Among the problems they see:

— Employers can restructure the workplace, laying off employees and changing full-time jobs to part-time jobs to avoid providing coverage, or they can reduce take-home pay to make up for their insurance costs.

In some cases, Thomas said, there may be some necessary and legitimate restructuring taking place, but right now employees falling victim to cuts by employers trying to avoid health coverage don't have any protection.

"We think there should be protection for employees in some circumstances where the only thing the employer is trying to do is avoid the Health Care Act," Thomas says.

— Another conflict: Employers polling employees and prospective employees about their health insurance intentions — such as, do they have coverage through a spouse or will they be needing coverage at their workplace — can use their answers to place targets on those employees' backs, Thomas said.

"In our mind, the employers shouldn't be able to discriminate against you if you have health care coverage or not," she said.

— Still another issue: Employees offered inadequate coverage (defined as not comprehensive enough or too expensive) who try to go out and purchase subsidized coverage being offered through the new state marketplaces could be subject to termination, Thomas says.

That's because the fines on employers who fail to provide coverage can be triggered in two different ways: They can be fined if they don't provide any coverage at all, and they can be fined if they offer inadequate coverage that forces the employee to go out and buy subsidized coverage through the state marketplace.

The act provides protection for employees fired or threatened with being fired if they accept adequate coverage, Thomas said, but there's no protection for an employee who is threatened with being fired for rejecting inadequate employer coverage, Thomas said.

"In the circumstances where there is inadequate insurance, there really is a big loophole that Congress couldn't have intended," Thomas said.

She and Molk conclude that a substantial number of retaliation claims are likely under the Affordable Care Act and additional employee protections are needed.

Their paper will published in the Cornell Law Review Online in October.

It can be accessed now at: http://bit.ly/1bSepG2

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