CUPA-HR eNews

PUBLIC POLICY NEWS YOU CAN USE – December 16
December 16, 2009

Christmas Healthcare Deadline in Jeopardy, GINA Now in Effect, Congress Continues to Focus on H1N1 Paid Sick Leave Legislation, End-of-the-Year Labor Agenda, Senate Committee Approves EEOC Nominees, CUPA-HR and ACE File Comments on ADAAA
By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR

Christmas Healthcare Deadline in Jeopardy
The Senate has begun debate on its version of healthcare reform legislation, the Patient Protection and Affordable Care Act (H.R. 3590), which was introduced by Majority Leader Harry Reid (D-NV) on November 19. The House passed its bill, the Affordable Health Care for America Act (H.R. 3962), on November 7 by a vote of 220 to 215. Just before going home for Thanksgiving recess, on November 21, the Senate was able to get 60 votes on cloture to move forward with debate. Since returning from recess, the Senate has worked late into the evening and over the weekends in an attempt to pass the bill by Christmas. Debate and the amendment process continue to revolve around the same controversial issues – a public option and abortion funding.

Discussions over a government run health plan, referred to as a public option, have paralyzed Congress since this summer. The House passed its bill with a public option. While the Senate bill originally had a public option that would allow states to opt out, Reid has not been able to get the 60 votes he needs to move the proposal forward. In an effort to break the deadlock, five liberal and five moderate Democrats have been working on a compromise that could gain sufficient votes. On December 9, the group announced they had reached an agreement to send a proposal to the Congressional Budget Office (CBO) requesting a cost estimate. 

Specifics of the potential compromise have not been made public, but it would reportedly create a national plan administered by private insurers with rates negotiated by the Office of Personnel Management (OPM). The compromise would also expand Medicaid from 133% to 150% of the federal poverty level and allow all uninsured individuals between the ages of 55 and 64 to buy into Medicare. 

President Obama has come out in support of the compromise, while doctor and hospital groups have voiced strong opposition. Sen. Joe Lieberman (I-CT) also has concerns with the compromise and notified Reid on December 13 that he would filibuster the healthcare bill if it includes a Medicare “buy-in.” Sen. Ben Nelson (D-NE) has also expressed concern with a Medicare “buy-in” option, putting this latest attempt at a public option compromise on thin ice. If the cost estimate from CBO comes back as reasonable and Reid can address the concerns of Lieberman and Nelson or find support in Republicans Olympia Snowe (R-ME) or Susan Collins (R-ME), public debate and consideration of the compromise could begin before the holiday break.

Another significant hurdle for the Senate bill has been federal funding of abortions. Several members of Congress have come out strongly on both sides of the issue, putting their vote for the final bill on the line. The House approved a last-minute amendment in its bill that would prohibit federal funds from being used for abortion, pleasing conservative and angering progressive Democrats. Nelson, a staunch pro-life member, proposed an amendment similar to the House amendment in the Senate; however, it was tabled by a vote of 54 to 45 on December 8, so the debate is ongoing.

Reid is expected to file cloture motions prior to December 18 on three pieces of his healthcare bill that he hopes will allow him to move forward with a vote before the Senate goes home for Christmas. One of the cloture motions would be for a manager’s amendment, he has yet to offer, that will reportedly include the final public option compromise and some sort of abortion compromise. However, it is still unclear if he will be able to get the 60 votes he needs. 

If the Senate is able to pass a bill before Christmas, or sometime in the new year, it has not yet been determined if a conference committee to merge the House and Senate bills will take place. Democratic leadership is still weighing options between having a conference or having the House just take up the Senate bill. With either approach, many hurdles still remain for healthcare reform because the two bodies still have significant disagreements on what a bill should look like. CUPA-HR will continue to closely monitor the healthcare debate.

GINA Now in Effect
On November 21, 2009, Title II of the Genetic Information Discrimination Act (GINA) took effect. GINA, signed into law by President Bush on May 21, 2008, prohibits employers from denying employment or promotions to an individual based on genetic information and regulates employer acquisition and disclosure of genetic information. 

The Equal Employment Opportunity Commission (EEOC), the agency responsible for Title II regulations, published proposed regulations on March 2, 2009, and was required by statute to issue final regulations by May 21 – six months before employers were required to comply with the Act. The agency, however, ignored the requirement and has yet to issue final regulations interpreting GINA. The rule is reportedly going through the approval process at the Office of Management and Budget (OMB) and may be changed significantly enough that the EEOC commissioners will need to vote again to approve OMB’s version of the rule. 

In the meantime, employers must nonetheless comply with GINA’s requirements. CUPA-HR filed comments on the EEOC’s proposed regulation and will alert members when the EEOC issues a final rule.

Congress Continues to Focus on H1N1 Paid Sick Leave Legislation
On November 17, 2009, Sen. Chris Dodd (D-CT) introduced legislation, with Rep. Rosa DeLauro (D-CT), titled the Pandemic Protection for Workers, Families and Businesses Act (S. 2790/H.R.4092). The bill is modeled after the Healthy Families Act legislation (S.1152/H.R. 2460) and would guarantee paid sick leave for those infected with the H1N1 virus or who exhibit other flu-like symptoms by requiring employers with 15 or more employees to provide up to seven paid sick days annually. The bill would require employers to provide leave for part-time workers as well, albeit on a pro-rata basis. The legislation would allow employees to decide when to use the leave for their own contagious illness or to care for a child with a contagious illness.

House Education and Labor Committee Chairman George Miller (D-CA) held a hearing that same day largely focused on his own bill, the Emergency Influenza Containment Act (H.R. 3991), which he introduced November 3. The Miller bill would require employers with 15 or more employees to pay employees for up to five days of leave per 12-month period where the employer “instructs or advises” the employee to take the leave because the employer believes the employee has symptoms of a contagious illness or has been in close contact with an individual who has symptoms of a contagious illness.  

Both the Miller and Dodd bills would become effective 15 days after being signed into law, but would sunset after two years. While both are well-intentioned, they would pose significant implementation problems for employers. The Miller bill was expected to move through committee quickly, but the H1N1 flu outbreak appears to be less severe than expected, lessening the need for emergency legislation. However, the introduction of these two bills and the debate in the committees do make it clear that both the House and the Senate intend to seriously consider some version of paid sick leave legislation in the 111th Congress. CUPA-HR will continue to watch the issue.

End-of-the-Year Labor Agenda
As the first session of the 111th Congress draws to a close, several labor issues remain on Democratic leadership’s agenda for the year and may be included in a two-part omnibus spending package crafted to move the remaining appropriations bills that have not yet been enacted this year. Specifically, House Majority Leader Steny Hoyer (D-MD) has said that a six-month extension of unemployment insurance and COBRA benefits could go in either package. Unemployment numbers remain high, and these benefits have begun to run out for some individuals who still have not found work. 

Also, the Public Safety Employer-Employee Cooperation Act (S. 1611), which would create a federally protected right to collective bargaining for police (including most campus police), firefighters and EMTs employed by states (including public colleges and universities) or municipalities with 25 or more full-time employees and populations over 5,000, could be slipped into legislation before the new year. This would be a change for many southern states, where public employers have no duty to recognize or bargain with unions. Proponents of S. 1611 reportedly have the votes to pass the bill, and Congressional leaders may feel pressure to bring the bill to a vote in order to progress with the labor agenda, as most other labor bills have less support.

Senate Committee Approves EEOC Nominees
On December 10, 2009, the Senate Health, Education, Labor and Pensions (HELP) Committee approved by voice vote President Obama’s nominees to the Equal Employment Opportunity Commission (EEOC). Jacqueline Berrien has been nominated to be chair, and Chai Feldblum and Victoria Lipnic have been named to fill Democrat and Republican commissioner seats, respectively. P. David Lopez, who has been nominated to be the commission’s general counsel, is also a part of the same nomination package. 

The HELP Committee held a November 19 hearing to consider the nominations. Though Chai Feldblum was questioned about some controversial writings on marriage, much of the hearing focused on praises and endorsements from various members of Congress for the nominees, paving the way for committee approval. The nominations will now move to the Senate floor for a vote. It is unclear if that will occur prior to the Christmas recess or when the Senate returns in the new year. 

CUPA-HR and ACE File Comments on ADAAA
CUPA-HR, along with the American Council on Education (ACE), filed comments on the EEOC’s proposed rule to implement changes to the Americans with Disabilities Act made in 2008 by the ADA Amendment Acts (ADAAA). Congress passed the ADAAA in response to several Supreme Court decisions that lawmakers felt interpreted the ADA to narrowly. 

Specifically, the ADAAA expanded the definition of disability so that more individuals are entitled to accommodations under the ADA. While, to be considered disabled, an individual still must show he or she has an impairment that substantially limits a major life activity, the ADAAA expanded the list of major life activities and specifically states that “disability” should be interpreted broadly. The ADAAA also prohibits discrimination based on an impairment as well as a disability, although employers are not required to accommodate an individual with an impairment. In its comments, CUPA-HR asked the EEOC to clarify its position on transitory and minor conditions and when they qualify as disabilities. 

It also asked the agency to remove the “per se” list of disabilities it created in the regulations, as doing so is contrary to the individual assessment required under the ADA and ADAAA. Finally, it requested the EEOC remove from its final regulations changes it made to the major life activity of working, as they are confusing and Congress specifically instructed the EEOC not to make such a change. CUPA-HR will alert members when the EEOC issued the final regulations.