The Affordable Care Act – Where Are We Now?

This is the first of a three part series on the Affordable Care Act (“ACA” or “Act”), commonly known  as “ObamaCare.”

The ACA was signed into law in March of 2010 with the goals of increasing the quality and affordability of health insurance, lowering the uninsured rate by expanding public and private insurance coverage, and reducing the costs of healthcare for individuals and the government.  Since that time, the ACA has been the subject of much debate.  Having survived a challenge to the United States Supreme Court, the ACA is officially the “law of the land” albeit with some changes.  One of the most anticipated and debated provisions of the ACA is the “employer mandate,” which will be phased in starting January 1, 2015.  With the public discussions and news reports focusing on the employer mandate and, earlier in the year, the health insurance exchanges, there was very little reported on the fact that most of the provisions of the ACA have already gone into effect. This post summarizes the employment related provisions of ACA that are currently in effect.


Earlier this year the Department of Labor, Treasury, and Health and Human Services adopted final regulations regarding minimum essential health insurance coverage.  In February, these agencies jointly announced the publication of final regulations implementing a 90-day limit on waiting periods for health coverage.  Described as a “common sense measure that helps workers access employer-sponsored health insurance,” the final regulations require that no group health plan or group health insurance issuer may impose a waiting period that exceeds 90 days after an employee is otherwise eligible for coverage.  Employers, however, can generally impose other conditions for eligibility such as meeting certain sales goals or successfully completing an orientation program.   In addition, employers can generally require employees to complete a certain number of hours before becoming eligible for coverage, as long as the requirement is capped at 1200 hours.  The rules do not require coverage be offered to any particular individual or class of individuals.

Breaks for Nursing Mothers

The ACA also amended the Fair Labor Standards Act (“FLSA”) to include mandatory break time for nursing mothers.  Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Employers are also required to provide a place other than a bathroom that is “shielded from view and free from intrusion” which may be used by the employee to express milk.  Employers with less than 50 employees are not subject to the break time requirement if compliance with the provision would impose an undue hardship.  Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.  All employees who work for the covered employer are counted when determining whether this exemption may apply.

Whistleblower Protections

Notably, in addition to health insurance reforms including the aforementioned requirements under the ACA, Section 1558 of Title I of the ACA protects employees from retaliation for reporting violations of the various reforms found in Title I and receiving a premium tax credit or a cost sharing reduction for enrolling in a qualified health plan. Employees who believe they have been retaliated against in violation of Title I of the Act may file a complaint with OSHA.

Our next post will discuss the Employer Mandate, which will require that as of January 1, 2015, all employers with the equivalent of 100 or over full-time equivalent employees to purchase health insurance for their workers or pay a penalty will take effect (also known as the Employer Mandate).  Employers with 50 or more full-time equivalent employees will be subject to the Employer Mandate starting January 1, 2016.  We will also discuss certain reporting requirements that will also take effect beginning in 2015.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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