In yesterday’s Advisor, attorney Stephen Woods covered changes to FMLA; today, his take on nursing mothers and Medicare reporting requirements, plus an introduction to a special program for small HR departments.
Woods is a shareholder in the Greenville, South Carolina office of law firm Ogletree Deakins, Nash, Smoak & Stewart, PC. His remarks came at BLR’s National Employment Law Update, held recently in Las Vegas.
Employers Must Provide “Reasonable Breaks” to Nursing Mothers
A new amendment to the Fair Labor Standards Act (FLSA) requires employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for [one] year after the child’s birth each time such employee has need to express the milk,” Woods says.
Additionally, says Woods, the employer must offer an employee a private “place” to express breast milk. “Place” is a location that is “shielded from view and free from intrusion from coworkers and the public.” The new law specifically excludes “bathrooms” as an appropriate “place.”
Employers are not required to compensate mothers taking “reasonable breaks” during “work time.” However, the employer may not schedule the break time. Instead, the nursing mother may take a “reasonable break time” each time she needs to.
A recently released DOL factsheet clarifies that employers are generally not required to compensate employees during these breaks, but employers would be required to do so if they already provide paid break time and the nursing employee uses such time to express milk.
The FLSA amendment affects all employers, with a limited exception for certain employers with fewer than fifty employees if the new requirements would impose an “undue hardship.”
Also, says Woods, at least twenty-four states, Washington, D.C., and Puerto Rico have enacted workplace laws relating to nursing mothers.
The DOL’s recent factsheet clarifies that the amendment took effect immediately. Therefore, employers should:
- Reexamine current policies and procedures to ensure compliance
- Identify private spaces for nursing mothers
- Train management about the new requirements, and
- Communicate this new right to employees.
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Costly Penalties for Failure to Report Settlement and Severance Payments to Medicare Beneficiaries
As of January 1, 2010, Woods notes, employers may be subject to a penalty of $1,000 per day for failing to report certain settlement and severance payments made to Medicare-eligible employees to resolve discrimination or other workplace-related claims.
The issue is that when other funds are available to pay for medical treatment, Medicare is intended to be the “secondary payer,” not the primary.
So President Obama signed the “Medicare, Medicaid and SCHIP Extension Act of 2007” (MMSEA), which allows Medicare to determine when its beneficiaries have received payment or reimbursement for medical expenses that Medicare could recoup.
The Act requires a “Responsible Reporting Entity” (RRE) to register with the Centers for Medicare and Medicaid Services (CMS) Coordination of Benefits Contractor (COBC) and to electronically file certain information on third-party claims that involve payments to Medicare-eligible claimants.
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The payment is referred to as the Total Payment Obligation to Claimant (TPOC).
An RRE can be any entity that is self-insured for all or part of a particular claim involving medical expenses. When the claimant is a Medicare beneficiary and either (i) the claimant has made a claim for medical expenses, or (ii) the claim results in a settlement, judgment, award or other payment to the Medicare beneficiary that resolves claims for medical expenses, the RRE must report the payment to the COBC.
Nursing rooms and Medicare reporting—more HR headaches. We’re talking about intermittent leave headaches, accommodation requests, investigations, training, interviewing, and attendance problems, to name just a few. In HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.
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