print this page
ABA/TIPS Toxic Torts and Environmental Law Committee Newsletter Spring 2010
by Richard A. Du Bey, Co-Chair, Environment, Land Use & Natural Resources, Leslie C. Clark, and Stephanie G. Weir
Environmental and Municipal Law Update Spring 2010
by Tom Kilbane and Robert Zeinemann
by Robert S. Klein, Co-Chair, Business & Tax Practice Group
Violent Crime Stats Raise Alarm; Elderly Women Most Vulnerable
What They Don't Teach You in Law School
Employment Law Update - American Recovery and Reinvestment Act of 2009
The passage of the American Recovery and Reinvestment Act of 2009 ("ARRA") provides short-term relief to individuals needing to maintain health care benefits following a layoff. The law also means new Consolidated Omnibus Reconciliation Act ("COBRA") obligations, and costs, for employers.
COBRA premiums. COBRA, enacted by the U.S. Congress in 1986, provides certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates if coverage is lost due to specific events such as layoffs or involuntary reduction in work hours. Employers with 20 or more employees are covered under COBRA.
For many employees, COBRA is too costly to consider. Because employers usually pay at least part of the premium themselves for active employees, while COBRA participants generally pay the entire premiums themselves, employees are often surprised by the size of their premium.
Cap on employee contributions. To make COBRA benefits more accessible to the large number of people who have recently lost their jobs, ARRA, also known as the Stimulus Act, puts a temporary cap of 35 percent on the amount of COBRA premiums eligible individuals can be asked to pay. Their employers must pay the remaining 65 percent, which will later be returned to them through a federal payroll tax credit.
To be eligible for the subsidy, individuals must be involuntarily terminated between September 1, 2008, and December 31, 2009, and earn less than $125,000 annually in the year they receive the benefits ($250,000 annually if married and filing taxes jointly). While COBRA typically also applies to individuals who lose health benefits because their hours fall below minimum eligibility levels, ARRA only covers individuals who lose their jobs.
Plan switches. Traditionally, former employees electing COBRA coverage stayed in the same health plan they were in when they were working. Under the new law, they can, if their former employer allows it, choose a different plan as long as the costs do not exceed those of their existing plans.
Other coverage. Yet another difference between COBRA and the new Act is that if a former employee is eligible for alternative insurance coverage, such as a spouse's plan or Medicare, they cannot receive the COBRA subsidy. Under COBRA, an individual has to actually be enrolled on another plan (not just eligible) to lose COBRA coverage.
Notification requirements. Employers must notify every individual who lost or loses their job between September 1, 2008, and December 31, 2009, about the subsidy. Individuals who lost their job prior to February 17, 2009 (the law's effective date) and did not elect COBRA must be given a second COBRA election period to reconsider their decision in light of the subsidy.
The U.S. Department of Labor is expected to release a model notice that employers can use as a template.
Payroll tax credit. To avoid transferring the costs of the reduced premiums to employers, the new law reimburses employers for their portion of the premium costs through payroll credits. Employer can claim the subsidy quarterly by reporting 65 percent of COBRA premiums as an overpayment of payroll taxes on Form 9421 or more frequently by offsetting payroll tax deposits during the quarter.
Employment Law Update - Employers Must Post Injury and Illness Summary
Beginning February 1, 2009, employers are required to post a summary of the total number of job-related injuries and illnesses that occurred during 2008. Employers must use the Occupational Safety and Health Administration (OSHA) Form 300A (a summary form using information gathered on the OSHA Form 300). The 2008 summary must be posted from February 1 to April 30, 2009.
The summary must include the total number of job-related injuries and illnesses that occurred in 2008 and were logged on the OSHA Form 300. Information about the annual average number of employees and total hours worked during the calendar year is also required.
If a company recorded no injuries or illnesses in 2008, the employer must enter "zero" on the total line. The form must be signed and certified by a company executive.
Form 300A should be displayed in a common area where notices to employees are usually posted.
Employers with 10 or fewer employees and employers in certain industries are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A complete list of exempt industries in the retail, services, finance, insurance and real estate sectors is posted on the OSHA Website.
Remember that all employers covered by OSHA need to comply with safety and health standards. All accidents that result in one or more fatalities or in the hospitalization of three or more employees must be reported verbally within eight hours to the nearest OSHA office.
Copies of OSHA Forms 300 and 300A are available on the OSHA Recordkeeping Web page at http://www.osha.gov/recordkeeping/index.html in either Adobe PDF or Microsoft Excel Spreadsheet format.
Employment Law Update - Workplace Smoking Ban
In 2006, Washington voters enacted Initiative Measure 901 to address concerns about the harmful effects of secondhand smoke. Initiative 901 expanded the 1985 ban on smoking in public places, as set forth in RCW 70.160, and added a prohibition against smoking "in any place of employment."
The Washington Supreme Court recently upheld the constitutionality of the amendment in American Legion Post v. Dept. of Health, 164 Wn. 2d 570 (2008).
A "place of employment" is very broadly defined as "any area under the control of a public or private employer which employees are required to pass through during the course of employment." In light of the broad reach of this amendment, if you allow smoking on your premises, you may need to revise your personnel manual accordingly.
Employment Law Update - FMLA for Military Families
On Monday, January 28, 2008, the President signed into law the first expansion of the Family and Medical Leave Act (FMLA). The National Defense Authorization Act (H.R. 4986) provides additional FMLA leave for military families. Specifically, Section 585 of the bill adds two new FMLA-qualifying events, expanding the FMLA to include employees caring for an injured service member and allowing leave when a family member is called to active duty.
Under the new law, FMLA-eligible employees will now be entitled to the following:
Family Leave Due to a Call to Active Duty. This benefit provides 12 weeks of FMLA leave when a spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the Armed Forces. Leave may be used for any "qualifying exigency" arising out of the servicemember’s current tour of active duty or because the servicemember is notified of an impending call to duty in support of a contingency operation.
Caregiver Leave for an Injured Service Member. This benefit provides 26 weeks of FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or nearest blood relative caring for a recovering service member. A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active duty that may render the person unable to perform the duties of the member’s office, grade, rank, or rating.
Most of the provisions of the FMLA remain unchanged and will apply to these new types of FMLA leave, including employer coverage, employee eligibility requirements, health insurance continuation, and reinstatement rights. Employees can utilize the leave on an incremental basis or in the smallest increment that the employer’s payroll system tracks under both of these new leave requirements.
While the Department of Labor (DOL) will need to issue regulations to fully implement this new law, they have released guidance that indicates the caregiver provision of the law is effective as of January 28, 2008. The call to active duty provision is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency." In the interim, the DOL encourages employers to provide this type of leave to qualifying employees.
Environmental, Land Use & Natural Resources
Upper Columbia River Contamination (.pdf file) -- A Transboundary Application of CERCLA; Pakootas v. TCM Metals, Ltd., by Richard A. Du Bey, Michelle U. Rosenthal and Leslie C. Clark
This article first appeared in the May 15, 2005 issue of "The Water Report," a monthly newsletter for water professionals covering water issues in the western US. More information on "The Water Report" is available at www.thewaterreport.com.
SCB represents the Confederated Tribes of the Colville Reservation (Tribes) in a lawsuit brought against Teck Cominco Metals, Ltd. (Cominco) under the citizen suit provision of CERCLA. Teck is a Canadian mining company that operates the world's largest zinc smelter, which is located on the banks of the Columbia River in Trail, British Columbia, just a few miles north of the U.S.-Canada border. For nearly 100 years, Cominco discharged hundreds of thousands of tons of slag and other heavy metals directly into the Columbia River, where it flowed downstream and came to rest along the banks and shores of the Columbia River in Eastern Washington, parts of which comprise the Tribes' Reservation. The lawsuit seeks to enforce an EPA-issued Unilateral Administrative Order against Cominco that compels the Canadian company to conduct a remedial investigation/feasibility study at the Columbia River Site.
In a case of first impression, the U.S. District Court for the Western District of Washington and the Ninth Circuit Court of Appeals have held that hazardous substances from slag and heavy metals originally released from the smelter into the Columbia River in Canada triggered the application of CERCLA. The courts also determined that the case involves the application of domestic law to a domestic situation, rather than a transboundary application of CERCLA. Teck Cominco has since appealed to the Ninth Circuit and requested an en banc review of the court's July 3, 2006 decision.
The following articles examine the opposing perspectives represented in this litigation by the Tribes and Cominco, as well as the legal and policy issues raised in this case. The two articles were published in Natural Resources & Environment, Volume 21, Number 1, Summer 2006, for the ABA Section of Environment, Energy, and Resources.
CERCLA and Transboundary Contamination in the Columbia River (.pdf file)
Environmental Enforcement Across National Borders (written by Gerald George, TCM) (.pdf file)
Colville Reservation Clean-Up (1.17 MB .pdf file)
by Richard A. Du Bey, Co-Chair, Environment, Land Use & Natural Resources
and Jennifer Sanscrainte