"Anytime an employer ... decides to do that—reduce an employee's hours or terminate employees so they don't have to provide them with health-care coverage—that could give rise to a claim," said Christopher Williams, a fiduciary product manager at Travelers Insurance. His firm recently launched coverage for ACA-related risk.
Williams said Obamacare litigation risk is something most large firms haven't thought much about yet, but plenty of lawyers are focused on the issue.
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"There's thousands of pages of regulations, and they're going to look through those statutes ... to come up with novel causes of action. We've started to see that already," he said. "There are some plaintiff law firms that are looking for clients whose hours have been reduced below 30 hours a week."
The problem does not just impact private employers. Government employers are subject to the same regulations, and the same litigation risks.
"Every local and state agency has to abide by the Affordable Care Act. Many of those plans are already over, or very close to being over the Cadillac tax threshold," said LeClairRyan's Anelli. "Now, you're going to have to have a discussion about having to control costs in order to avoid taxation."
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The so-called Cadillac tax imposes a 40 percent excise fee on high-cost health benefit plans starting in 2016. For municipalities with large numbers of unionized workers, such as teachers, police and firefighters, renegotiating plans to avoid incurring a penalty under one part of the ACA could put them at risk to the another part of the law in terms of litigation.
"That's the other shoe that's going to drop," Anelli said.