By MATT CHANDLER
mchandler@bizjournals.com | 716-541-1654

As President Obama toured the country trumpeting the benefits of what was, at the time, proposed health-care reform legislation, conversation centered on expanded coverage for the uninsured - especially seniors, children and people with pre-existing medical conditions.

Obama told of plans to insure 49 million Americans who currently are uninsured. The question that lingered for some Americans was: At what cost? Beyond the obvious dollar amount attached to such a broad social program, what was the potential fallout of the soon-to-be signed health-care bill?

One area of debate was employment discrimination. With employers mandated to provide health insurance to workers, would there be a push back on the part of companies to weed out, for instance, smokers, obese employees and those with other known health risks?

Local attorneys vary on the possible impact of new legislation, with several saying it is too early to predict how the workplace will be affected.

"Employment law was a challenging area of law even before the health-care reform act because it is very subjective in terms of what can and can't be done," said Kevin Wicka, "and there is a lot of interplay of the different laws that already exist."

He is an attorney with Brown & Tarantino LLC specializing in employment discrimination.

There could be some discrimination fallout from the legislation, Wicka said, adding, "There are some new causes of action that could be created from this most recent bill that went into effect."

A potential problem area is employers who are more cognizant of health issues in the workplace taking action to remove perceived unhealthy employees from the payroll.

"You might see more adverse employment actions taken against individuals because of the obligation employers will face," Wicka said. "I don't know that there were new remedies that were created, but the existing ones may become more frequently used."

That said, Wicka sees employees being more informed about their rights and pushing back. That could drive up discrimination claims as they invoke the New York State Human Rights Law and the Americans with Disabilities Act.

"My experience dealing with employees that are terminated is that sometimes it is just performance-based and you can't show that there was a discriminatory reason, but I think you may see a lot of employees looking toward that reason and taking a closer look at these things," he said.

The new legislation includes provisions aimed at protecting against discrimination, including plans to cover individuals with pre-exisiting conditions (thus potentially removing the discrimination against employees with prior medical history), as well as whistleblower protection for those who speak out against discrimination in the workplace. That, along with a litany of laws already on the books, has local attorneys who specialize in employment law saying the new regs likely won't cause a significant bump in discrimination cases.

"I don't think that we are going to see any increase in bad activity on the part of employers because there is already so much statutory language in place governing what they can and can't do," said Ginger Schröder of Schröder, Joseph & Associates, Buffalo. A potential rise in discrimination cases "isn't even on our radar."

"I suppose it is possible that employers might be more likely to think about the health of their employees once they have to foot the bill for health care," she said. "Currently, though, a good portion of employers already pay for health care, so I would think these things, if not forefront in their minds, are at least there."

Robert Boreanaz of Lipsitz Green Scime & Cambria agrees.

"The economic downturn has already created that incentive for employers to maybe cut corners," he said. "I don't really see the new reform legislation as creating more incentive than may already exist for unscrupulous employers to avoid their obligations under the law."

Though he doesn't see the likelihood of an increase in lawsuits, he said there's always the potential for more subtle discrimination to occur.

"I think there is potential for that (overt discrimination)," he said, "but honestly, I don't see plaintiffs' lawyers taking those cases and bringing additional lawsuits because the ability to prove that becomes very, very challenging."