Employment Law Council Update
February Edition 2010
Actions Speak Louder than Words
While many lawmakers claim they are concerned about job creation, most legislative proposals advancing this session will be harmful to Illinois employers and their struggle to be competitive. Here are some of the more important ones:
Abusive Work Environment Act… HB 374 (Turner-D-Chicago). A carryover from last year, this proposal has been sent directly to the House floor for future action. It extends new civil liabilities to employers maintaining an abusive workplace as defined under the proposed Act. An amendment is pending that limits its application to public employers. SB 3566 (Delgado-D-Chicago) is a similar bill pending in the Senate.
7 Paid Days of Sick Leave… HB 3665 (Hernandez-D-Chicago)/SB 3835 (Sandoval-D-Chicago) requires all Illinois employers to provide a minimum of 7 paid sick days of leave. HB 3665 is pending consideration by the House Labor Committee and SB 3835 is in the Senate Committee on Assignments. For more details on the Chamber/ELC position these bills.
Limits on Employer Inquiries of Job Applicants… HB 4620 (Ford-D-Chicago) establishes the use by an employer of a prior criminal conviction as a hiring or promotion basis to be a civil rights violation. HB 4658 (Franks-D-McHenry) prohibits an employer from using an employee’s or prospective employee’s credit history in an employment related decision. Certain situations such as individuals responsible for handling cash or required to be bonded are excluded. HB 5154 (Chapa LaVia-D-Aurora) prohibits the disclosure of performance evaluations under the Personnel Records Review Act. HB 5185 (Jakobsson-D-Urbana) prohibits an employer from requiring that applications for employment be submitted only online or in another electronic format. HB 5390 (Howard-D-Chicago) makes it a civil rights violation for an employer to inquire into or to use the fact of a felony conviction as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms if more than 10 years have elapsed since the conviction.
New Workplace Mandates… HB 5155 (McGuire-D-Joliet) prohibits an employer from requiring an employee to attend an employer-sponsored meeting or participate in communication for the purpose of communicating the employer's opinion about religious or political matters. HB 5284 (Moffitt-R-Gilson) provides that all veterans of the United States armed forces, who served under any branch of the military, shall be granted paid leave to attend the funerals of other veterans. HB 5425 (Jefferson-D-Rockford) requires employers who employ 6 or more people to allow an employee to take unpaid leave to attend a criminal proceeding if the employee was a victim of certain crimes or is in the immediate family of the victim of such crimes. HB 5426 (Jefferson) provides that except as otherwise provided in the Victims' Economic Security and Safety Act, an employer who has 50 or more employees for each working day in each of 20 or more calendar Weeks in the current or preceding calendar year, and any agent of that employer, shall allow an employee who is a crime victim to leave work to attend certain court proceedings. SB 3186 (Hultgren-R-Wheaton) and SB 3187 (Burzynski-R-Clare) require employers to use the federal E-verify program to determine an employee or prospective employee’s citizenship status.
The Council will actively lobby against each of these proposals and urges our members to contact their legislators to ask them to vote “no” on them.
Governor Calls Agreed Bill Meeting
Gov. Quinn’s office convened a meeting last week of the joint employers and organized labor to discuss the agreed bill process relating to both unemployment insurance and workers compensation. This preliminary meeting led to a discussion of the process in general and several introduced bills on the topics in particular.
As a first step, employer groups including the Chamber and their counterparts in labor will review a list of potential pieces of legislation concerning unemployment insurance and workers compensation. This review will help determine if any of the more narrowly crafted bills introduced thus far might have merit for further discussion between the two groups.
Several measures helpful to employers have been introduced this session.
Unemployment Insurance Fraud…HB 5105 (Tracy-R-Liberty) provides that an individual who for the purpose of obtaining benefits fails to notify the Department of Employment Security when he or she quits, is discharged from work, or refuses work, or fails to look for work when required to do so, and reports to the Department that he or she searched for work, and thereby obtains any sum as benefits for which he or she is not eligible has committed unemployment insurance fraud.
Workers’ Compensation Alcohol/Drugs…HB 5721 (Zalewski-D-Chicago) provides that no compensation is payable if an injury was caused primarily by the intoxication of the employee, the influence of alcohol or certain drugs not prescribed by a physician, or the combined influence of alcohol and drugs that affected the employee to the extent that the intoxication constituted a departure from employment.
Workers’ Compensation Workplace Prevailing Cause…HB 6159 (Reis-R-Willow Hill) defines injury as an injury that has arisen out of and in the course of employment; provides that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.
Workers’ Compensation Collective Bargaining…SB 3829 (Link-D-Lake Bluff) provides that an employer or group of employers and the representative of its employees may agree to establish binding obligations and procedures relating to workers' compensation; provides that the agreement must be limited to, but need not include an alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of the Act.
Workers’ Compensation Objective Medical Standards…SB 3830 (Brady-R-Bloomington) provides that permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements, that subjective complaints shall not be considered unless supported by and clearly related to objective measurements, and that a specified publication shall be applied in determining the level of disability; provides that temporary total disability payments shall not exceed 104 weeks.
Workers’ Compensation Fraud… SB 3832 (Brady) provides that the Workers' Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to a case; provides that the Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud; provides that the fraud and insurance non-compliance unit of the Department of Insurance shall employ one or more attorneys as special prosecutors.
Workers’ Compensation Coverage… HB 6266 (Rose-R-Mahomet) provides that a subcontractor under contract to a general contractor may elect to be covered under any policy of workers' compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election, on a form prescribed by the Workers' Compensation Commission.
IDES Provides For Voluntary Leave Examples
As part of the unemployment insurance agreed bill negotiations last year, the Council insisted that the Illinois Department of Employment Security (IDES) provide better guidance to employers and workers as to what constitutes voluntary leave under Section 601 of the Act and how UI benefit fraud is detected. We worked with the Agency along with others and the product is now two emergency rules that will be in effect for 180 days. Companion proposed rules will replace the emergency rule when it expires. Comments on the rules will be accepted for up to 45 days following the February 5, 2010 publication of the rule.
General Assembly Continues to Put Pressure on Employer Health Plan Costs
Healthcare mandates are helping drive healthcare costs for small employers. Legislative mandates before various legislative committees only impact health plans provided by small business. Most. larger employers use self-insured plans that are not subject to state regulation.
We do not doubt the good intentions of the sponsors and the groups supporting these mandates, however as many small employers are struggling to continue to provide their health benefit plans for their employees, this is the worst time to add additional cost burdens on their plans. Because of additional costs created by a one-size fits all approach, many Illinois employees may be faced with losing their employer healthcare benefits entirely. For these reasons and others provided for under specific bills listed below, the Illinois Chamber of Commerce is OPPOSED to the following healthcare mandates:
HB 1082 (C. Gordon-D-Morris): mandates coverage for surrogates. Employer plans are designed to cover employees and their dependents. Expanding to surrogates would increase costs on small employers.
HB 4726 (Sente-D-Vernon Hills) mandates that coverage for test strips for glucose monitors as durable medical equipment rather than as pharmaceuticals and supplies. It is our understanding that test strips require a prescription and therefore are properly covered under drug benefit provisions. A better approach is to encourage employers to add drug benefits to their plans and adopt wellness benefits that focus on diabetes.
HB 4924 (Mulligan-R-Des Plaines) mandates small employer health plans to cover operations to implant cochlear implants and post-treatment services for children identified within one year of birth as being deaf or hearing impaired and audiological services and hearing aids for children up to 18 years of age.
HB 5085 (Harris-D-Chicago) mandates that benefits for oral drug treatments for cancer are treated the same as benefits for intravenous treatments. A one-size fits all approach is inappropriate as there are different protocols, costs and potential side-effects between the two approaches.
HB 5085 also extends new benefits for clinical cancer trials. Small employers should not be required to pay the research and development costs that are the responsibility of drug company investors and government.
HB 5142 (Lang-D-Skokie) mandates mental health parity benefits and expands coverage for autism. Illinois just recently adopted expanded coverage for autism. HB 5142 now requires coverage minimally at $36,000 and eliminates all cost-sharing components that insureds would pay for any other disease. Makes significant changes to how lifetime limits are applied to mental health services.
HB 5766 (Feigenholtz-D-Chicago) mandates small employer health plans to provide coverage or reimbursement of at least $500 for a tobacco use cessation program for insureds who are 15 years of age or older. This benefit is more appropriate for an employer wellness program. It also appears to limit the use of preferred provider agreements for delivery of the services.
HB 6061 (Feigenholtz) mandates small employer plans provide maternity benefits. This is an expensive benefit that some small employers are unable to afford. Federal law also provides protections such as the Pregnancy Discrimination Act which requires businesses with 15 or more employees to cover expenses for pregnancy and medical conditions related to pregnancy on the same basis as coverage for other medical conditions.
HB 6064 (Feigenholtz) mandates small employer health plans provide coverage for medically necessary foods, low protein foods, and pharmacological doses of vitamins and amino acids and the medical equipment and supplies necessary to administer the foods for the treatment of inborn errors of metabolism.
HB 6066 (Lang)/SB 3545 (Crotty-D-Oak Forest) prohibit a health plan from charging a copayment or deductible for any prescription or device that is prescribed for the treatment of psoriasis. Approval of this measure would undermine an employer's ability to control healthcare costs and would trigger a deluge of all other diseases to call for prohibiting the application of copayments or deductibles.
SB 2516 (Silverstein-D-Chicago) mandates coverage for hearing aids.
Other issues that will impact employer health benefit plans:
HB 4679 (Flowers-D-Chicago) prohibits certain limitations and provisions regarding pre-existing conditions. OPPOSE
HB 5030 (Flowers) Creates the Premium and Loss Data Reporting Act. HB 5030 conflicts with and will undermine the new law that Gov. Quinn just signed in January (HB3923). OPPOSE
HB 5038 (Flowers) requires employer health plans to cover all services ordered by a physician and provided in a hospital that are considered medically necessary. Adds the right not to be discriminated against by the hospital due to the patient's race, color, or national origin. Sets forth provisions concerning discrimination grievance procedures and emergency room antidiscrimination notices. OPPOSE
HB 5107 (Harris) limits recoupment of over payments for healthcare services to 180 days after original payment for services. This will limit cost controls for employer health plans and likely will lead to more frequent audits and higher administrative costs. OPPOSE
HB 5250 (Chapa LaVia) establishes numerous requirements between insurers and network administrators with medical providers that are more appropriately addressed in contracts between the parties. Also, will create significant administrative costs that will be passed onto employers. OPPOSE
HB 5471 (Flowers) establishes external review procedures, data reporting requirements of health insurers and an 85% loss ratio requirement which are in conflict with HB 3923 recently signed into law by Gov. Quinn. The Chamber supported HB 3923. OPPOSE
HB5473 (Flowers) establishes external review procedures which are in conflict with HB 3923 recently signed into law by Gov. Quinn. The Chamber supported HB 3923. OPPOSE |
