U.S. Health Care Reform: Beginning to address seasonal employees

Earlier this month, the U.S. Treasury, Department of Labor, and Internal Revenue Service (IRS) released a “Request for Comments on Shared Responsibility for Employers Regarding Health Coverage,” which solicits input on several issues regarding the employer responsibility provisions of the Patient Protection and Affordable Care Act (PPACA). The intent is to use the comments it receives from this request to shape the rules it proposes on the employer responsibility provisions.

This is the first opportunity the attractions industry has to solicit clarification on the full-time vs. seasonal employee issue. As you may remember, during the legislative debate IAAPA tried to clarify the differences between full-time, year-round employees and seasonal workers who work more than 30 hours per week for a few consecutive months.

The Request for Comments addresses the following issues:
• The definitions of employer, employee, and hours of service (Section III)
• Determination of whether an employer is an applicable large employer (Section IV)
• Potential methods for determining full-time employees (Section V), including a possible “look-back/stability period safe harbor method” – MORE BELOW
• How provisions of PPACA that establish assessable payments for not offering minimum essential coverage to eligible employees will be interpreted and applied, and situations where appropriate exceptions should be provided (Section VI(A)).
• The 90-day limitation on wait periods and how it applies in certain situations (Section VI(B))

Look-Back/Stability
Under the possible look-back/stability period, an employer would determine each employee’s full-time status by looking back at a defined period of three to 12 months, as chosen by the employer, to determine whether the employee averaged at least 30 hours of service per week (or 130 hours per calendar month). If an employee met this obligation during the look-back period, then he would be treated as a full-time employee during a subsequent “stability period,” regardless of the number of hours of service he worked during the stability period, provided he remained an employee.

The business would be required to enroll the employee in its health insurance program or pay the penalty during the stability period. The stability period could be longer than the look-back period, but not shorter. The look-back/stability process would continue on a rolling basis.

IAAPA intends to submit comments in response to this request, but we need to know how these proposals would work for member companies. Comments are due June 17, so please email us your thoughts by June 10.

URGENT MEMBER ALERT: CPSC Recalls Pool/Spa Drain Covers

We just received word that the U.S. Consumer Product Safety Commission (CPSC) held a press conference today and announced the voluntary recall of pool and spa drain covers from eight different manufacturers. Click here for a copy of CPSC’s press release with the highlights and photos of some of the recalled covers.

The release does not provide specific model numbers for the recalled covers and the photos included do not represent all of those recalled. If you have drain covers from one of the manufacturers listed, we recommend you contact the manufacturer directly to see if your covers are included in the recall.

Also, please note the “Remedy” section of the press release which states:
“Remedy: Pool owners/operators and consumers who have one of the recalled pool or spa drain covers should immediately contact the manufacturer to receive a replacement or retrofit, depending on their make and model. Except for kiddie pools, wading pools and in-ground spas, retrofit or replacement of installed covers are not required in pools with multiple drain systems or gravity drainage systems or for covers installed before December 19, 2008.”

This recall may generate press coverage since the CPSC issued the press release two days before the Memorial Day weekend. We recommend you survey your pools and spas to understand the extent to which this recall may or may not impact your facility and be prepared to respond to inquiries from the press, employees, or guests.

The IAAPA Government Relations team continues to monitor this issue and if additional information becomes available we will share it with you.

Thank you for your ongoing support of IAAPA and best wishes for a safe and successful holiday weekend.

Setting the Record Straight on ADA

Yesterday's News Flash (IAAPA member login required) featured an article about a county-operated miniature golf course in North Carolina that will be forced to close if it cannot comply with the new ADA regulations when they become effective next spring. There has been some confusion about this issue, and I wanted to set the facts straight:

"Grandfathering"
The article is inaccurate when it states that up until now, miniature golf courses have been "grandfathered" into compliance. IAAPA members know recreation facilities were not included in the 1991 Standard (however certain elements present in a recreation facility, such as parking lots and bathrooms, were included). Until the 2004 ADA Accessibility Guidelines were published, there were no federal standards for miniature golf courses, swimming pools, or amusement rides. The 2004 Guidelines were not law until adopted by the U.S. Department of Justice last summer, and are not effective until March 15, 2012. Having said that, since the 2004 Guidelines were released IAAPA has encouraged its members to incorporate them into new construction or alteration, as we knew they would eventually be adopted as law.

For elements that were included in the 1991 Standard (such as bathrooms, service counters, and parking lots), there is a "safe harbor" in the new regulations, provided those elements are compliant with the 1991 Standard. This means a business does not have to change these elements to comply with the 2010 Standard.

Title II vs. Title III
The miniature golf course at the Dan Nicholas Park is operated by Rowan County; it is not a private business. Government facilities such as the Dan Nicholas Park are subject to Title II of the Americans with Disabilities Act. Commercial businesses (which make up the vast majority of IAAPA members) are subject to Title III of of the ADA. Both titles were updated in the rulemaking that came to an end last fall, but the rules are slightly different.

Both Title II and Title III reference the 2010 Standards for Accessible Design. Both sets of rules have the same effective date for compliance with the 2010 Standards for new construction and alteration, and barrier removal: March 15, 2012.

The major difference lies in the barrier removal obligations. Under Title II, state and local governments do not have the "flexibility" that is provided under Title III for "readily achievable" barrier removal. Under Title II, state and local governments must provide access to programs, and each program is evaluated on the whole. If Rowan County has only one miniature golf course that is not accessible—and cannot be made accessible—and the county cannot afford to build a new, accessible course, then its options are to close the course or wait for legal activity.

A commercial business is required to do barrier removal to the extent "readily achievable," which means "easily accomplishable without much difficulty ot expense." IAAPA encourages miniature golf course operators to survey the accessibility of their courses and develop a response plan to remove barriers on the course. The response plan might not make a course fully accessible by March 15, 2012, but ideally it would show step-by-step how an operator plans to make his or her facility accessible as resources allow.

More Information

Watch your mailboxes for the July issue of Funworld, IAAPA's monthly magazine, which contains an article explaining the new ADA rules for recreational facilities. To provide members with more in-depth information on the 2010 Standards, IAAPA is publishing a series of white papers, which will be available soon. If you have more questions, please don't hesistate to contact us.

U.S. State Dept Issues Interim Final Rule on J-1 Visas

Late last month, the U.S. Department of State released an interim final rule with request for comments on the J-1 visa Summer Work Travel (SWT) program. The rule will go into effect July 15, 2011, and the Dept. of State will accept comments until June 27.

This rule stems from reports of exploitation of SWT students (not in the attractions industry). Last fall the Dept. of State announced a pilot program that would make changes to the SWT program for students from six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine). The pilot program served as a basis for this interim final rule.

The rule modifies the Summer Work Travel regulations by establishing different employment placement requirements based on the students’ countries of citizenship and by requiring sponsors to fully vet the job placements of all program participants. It also clarifies that only vetted U.S. host employers and vetted third party overseas agents or partners (i.e., foreign entities) with whom sponsors have contractual agreements may assist sponsors in the administration of the core functions of their exchange programs.

IAAPA knows its members provide a good experience to SWT students. Last month IAAPA met with Deputy Assistant Secretary for Private Sector Exchange Stanley Colvin to discuss the attractions industry’s use of the SWT program and the new rule. During the meeting Deputy Assistant Secretary Colvin expressed interest in visiting amusement parks to see the positive stories our industry has to tell. If your facility is interested in hosting State Department officials this summer, please contact us.