Business Litigation Perspectives - Insights & Commentary on Business Legal Issues

Now that a divided U.S. Court of Appeals for the 11th Circuit panel has ruled that the individual mandate aspect of President Obama’s health care overhaul law is unconstitutional, what’s going to happen next?

Calling it an “unprecedented exercise of congressional power,” the Atlanta federal appellate court (in a 300+ page opinion, including one dissent) sided with Florida and 25 other states in rejecting a plan that would require almost all Americans to have health insurance in 2014.

The 11th Circuit’s decision (2-1 against the law) is the latest in a series of federal court rulings on the much-debated health care plan, as the panel held that the mandate exceeds congressional power under the Commerce Clause (i.e., Article I, Section 8 of the U.S. Constitution). The majority said Congress cannot require Americans to buy expensive insurance “from the time they are born until the time they die.”

With more than a hint of sarcasm, the dissenting judge, Stanley Marcus, a former U.S. Attorney from Miami, dismissed the "impending doom" and "parade of horribles" predicted by opponents of the law, saying that upholding the law does not mean that the feds will "compel us to purchase and consume broccoli, buy General Motors vehicles and exercise three days a week."

The 11th Circuit ruling runs contrary to a recent decision from the 6th Circuit in Ohio, which concluded that the individual mandate is within legislators’ authority to regulate interstate commerce under the Commerce Clause. The majority in that case ruled that Congress had a “rational basis” for concluding the minimum coverage provision is essential to the law’s larger reforms.

It is a virtual guarantee that this dispute will ultimately be decided by the U.S. Supreme Court, which will have the final judicial say on whether it is constitutional for Congress to require Americans to purchase medical insurance.

However, more courts are likely to weigh in on this issue before the Supreme Court gets there, as there are more than 30 lawsuits that have been filed over the health care legislation.  Stay tuned…

(Why I may get to leave work NOW for Johnny's play, and you can’t stop me, Boss!)

Legislation has been introduced in Congress this month that would greatly expand the federal Family and Medical Leave Act (FMLA).

H.R. 1440 -- the Family and Medical Leave Enhancement Act of 2011 -- was introduced on April 8, 2011 by Rep. Carolyn Maloney, a Democrat from the 14th District of New York (Manhattan and Queens).

If adopted, many more employers would face the necessity of permitting leave for employees to attend to personal family and medical matters, including things like school plays and related activities.

Now, most employers that I represent take a reasonable, common sense approach to allowing their employees to go to their kids’ school plays and such.  But mandating that employers do so as a matter of federal law? Sounds like overreaching, doesn’t it?

As most employers know, the FMLA is intended to allow employees to take unpaid leave (up to 12 weeks in most cases) for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse, or parent who has a serious health condition. The so-called Family and Medical Leave Enhancement Act of 2011 (FMLEA) would amend the FMLA to allow employees to take off from work to participate in or attend their kid’s and grandkid’s school and extracurricular activities, and for other purposes.

Under the bill, employers would be required to allow an eligible employee to:

1. participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee; or
2. meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes.

One sign that the drafters of this bill have not completely taken leave of their senses is that the bill would limit FMLEA leave to no more than 4 hours during any 30-day period, and no more than 24 hours of leave during any 12-month period.

One other major change to existing law would be that the FMLEA would apply to all private employers with 25 or more employees (currently the FMLA applies to private employers with 50 or more employees).

From the employer's perspective, given the Republican-controlled House, the prospects of passage of H.R. 1440 are not favorable, to say the least.  Whew....