Posted on March 03, 2021

Health Plans and Issuers Must Cover COVID-19 Diagnostic Items and Services Without Cost-sharing

On Feb. 26, 2021, the Departments of Labor, Health and Human Services (HHS), and the Treasury issued FAQ guidance to clarify health coverage requirements related to COVID-19 diagnostic testing and vaccinations.

The FAQs explain that plans and issuers:

• May not use medical screening criteria to deny (or impose cost sharing on) a claim for COVID-19 diagnostic testing for an asymptomatic person with no known or suspected exposure to COVID-19.
• May distinguish between COVID-19 diagnostic testing of asymptomatic people that must be covered, and testing for general workplace health and safety or other purposes not primarily intended for individualized diagnosis or treatment of COVID-19.
• Must assume that a test is for individualized clinical assessment if it is provided by a licensed or authorized provider, including at a state- or locality-administered site, a drive-through site or a site that does not require appointments.

These FAQs also provide guidance regarding: (1) coverage of COVID-19 vaccines and other preventive care services; (2) notice requirements for plans and issuers regarding coverage of preventive care services; and (3) requirements for employee assistance programs (EAPs) and on-site medical clinics that administer COVID-19 vaccines to be considered excepted benefits.

© 2021 HR 360, Inc.

Posted on February 26, 2021

The Relief May Extend Beyond the Expected Feb. 28 Expiration Date in Some Cases

On Feb. 26, 2021, the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) issued Disaster Relief Notice 2021-01 to provide guidance on the duration of the COVID-19-related relief regarding certain employee benefit plan deadlines during the Outbreak Period. Under federal law, the period of relief cannot exceed one year.

Because the Outbreak Period began on March 1, 2020, the relief was expected to expire on Feb. 28, 2021. However, EBSA’s guidance interprets the one-year limit to begin on the date the action would otherwise have been required in a given situation. Specifically, individuals and plans will have the applicable periods disregarded until the earlier of one year from the date they were first eligible for relief, or 60 days after the announced end of the Outbreak Period.

Because participants and beneficiaries may encounter ongoing problems due to the COVID-19 pandemic, plan administrators should continue to make reasonable accommodations to prevent the loss of or undue delay in payment of benefits. For fiduciaries that act in good faith with respect to ERISA’s disclosure and claims processing requirements, the DOL’s approach to enforcement will be marked by an emphasis on compliance assistance, and includes grace periods and other relief.

© 2021 HR 360, Inc.

Posted on February 23, 2021

Informed Consent Requires Disclosure, Understanding and Free Choice

The Centers for Disease Control and Prevention (CDC) has issued guidance on the elements of consent and disclosures necessary to support employee decision-making when employers incorporate workplace COVID-19 testing.

Differences in position and authority (such as workplace hierarchies), as well as employment status in nonstandard working arrangements (e.g., temporary help, contract help or part-time employment) can affect an employee’s ability to make free decisions. This guidance suggests measures employers can take when developing a testing program. 

To fully support employee decision-making and consent, these measures should include:

• Safeguarding employees’ privacy and confidentiality;
• Providing information that is complete and understandable on how the employer’s testing program may impact employees’ lives;
• Explaining any parts of the testing program an employee would consider important when deciding to participate;
• Providing information about the testing program in the employee’s preferred language using nontechnical terms;
• Encouraging supervisors and co-workers to avoid pressuring employees to participate in the testing; and
• Encouraging and answering questions during the consent process.

© 2021 HR 360, Inc.

Posted on February 23, 2021

The Delay Would Allow the Biden Administration Time to Evaluate the Rule Before It Becomes Effective

On Friday, Feb. 5, 2021, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) proposed delaying the effective date for the Independent Contractor final rule from Mar. 8, 2021 to May 7, 2021. 

The WHD is proposing the delay to allow sufficient time for the agency to review the final rule as required by the memorandum President Biden issued on Jan. 20, freezing regulatory changes adopted late into the previous administration. 

The Independent Contractor Final Rule

The final rule issued on Jan. 6, 2021, clarifies how employers can determine whether a worker is an employee or an independent contractor. Adequate worker classification is necessary to determine whether workers are protected by employment laws or entitled to employment benefits. 

The final rule reaffirms that employers must consider whether, as a matter of economic reality, there is financial dependency in the employment relationship with their workers. 

Impact on Employers

Until the final rule becomes effective, employers are not required to use the DOL’s Economic Realities Test as required by the final rule. However, employers should become familiar with this final rule and consider how they would implement any necessary changes into their worker classification practices by May 7, 2021. 

Employers should also continue to monitor the DOL website for updates on whether the Biden administration chooses to accept, amend or reject the final rule before the rule’s effective date. 

© 2021 HR 360, Inc.

Posted on February 23, 2021

The New Law Affects Background Checks for Job Applicants

On Feb. 5, 2021, Virginia passed a new law (House Bill 2312) that legalizes recreational marijuana for adults ages 21 and older in the state. The new law also expands an existing provision that prohibits employers from asking job applicants about their marijuana-related criminal backgrounds. Under the new law, inquiries about an applicant’s civil fines related to the drug will be prohibited as well. 

Current Law – Decriminalized Marijuana

Under an existing law that was enacted in May 2020 (Virginia Senate Bill 2), the state has already removed all criminal penalties—and now imposes only a civil fine of up to $25—for possessing up to 1 ounce of marijuana. As of July 1, 2020, that law also prohibits all employers in the state from asking job applicants about their marijuana-related criminal backgrounds (with limited exceptions for public-safety positions). 

New Law – Legalized Marijuana 

The new law, which is expected to be signed by the governor, removes all civil penalties for possession of up to one ounce of marijuana. It also expands the restrictions on employer inquiries to include civil violations. In general, this means that employers may face fines of up to $2,500, imprisonment for up to 12 months or both, if they:    

• Require a job applicant to disclose any information about their marijuana-related criminal or civil records; or 
• Ask about marijuana-related criminal or civil history on any job application, during any job interview or in any other interaction with a job applicant.  

 

 

 

© 2021 HR 360, Inc.

Posted on February 22, 2021

No New Guidance at This Time

Last year, federal agencies issued relief postponing various employee benefit plan deadlines during a defined “Outbreak Period” to help plans, participants and service providers impacted by the COVID-19 pandemic.

The Outbreak Period began on March 1, 2020, and lasts until 60 days after the announced end of the National Emergency, but by law, it cannot exceed one year. This means that the deadline relief expires on Feb. 28, 2021, in the absence of further guidance. At this time, no additional guidance has been issued.

The relief, in the form of a final rule, extends deadlines affecting COBRA continuation coverage, special enrollment periods, claims for benefits, appeals of denied claims and external review of certain claims. While the extension is not mandatory for non-federal governmental plans, agencies have encouraged sponsors of these plans to provide similar relief to their participants and beneficiaries. In addition, a separate Disaster Relief Notice includes deadline extensions for notices and disclosures required under the Employee Retirement Income Security Act (ERISA).

Given the lack of agency guidance, employers and plan sponsors should begin preparing for the deadline extension relief to expire on Feb. 28, 2021.

© 2021 HR 360, Inc.

Posted on February 19, 2021

“Workweek” Means 7-Day Period When Employer Is in Operation

An employee working a “one week on, one week off” schedule who takes 12 workweeks of continuous federal Family and Medical Leave Act (FMLA) leave may be required to return to work 12 weeks later, a federal appeals court has held. In Scalia v. State of Alaska, the 9th Circuit Court of Appeals found that an employer may count both “on” and “off” weeks against the FMLA leave entitlement of an employee on a rotating schedule.

In the absence of an FMLA definition of “workweek,” the court applied the Fair Labor Standards Act definition of the term: a week-long period, designated in advance by the employer, during which the employer is in operation. The court noted that the alternative of counting only weeks the employee was scheduled to work would allow rotational workers to take 24 weeks of FMLA leave. This, the court said, did not follow the statute and would be unfair to both employers and employees not on a rotating schedule. The decision is limited to employees taking continuous (not intermittent) FMLA leave.

Ninth Circuit decisions apply in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands. The opinion was issued Jan. 15, 2021.

© 2021 HR 360, Inc.

Posted on February 18, 2021

Guidance Addresses Mid-year Elections and Temporary Rules for Health and Dependent Care FSAs

On Feb. 18, 2021, the IRS released Notice 2021-15, which provides additional mid-year election change relief for Section 125 cafeteria plans for plan years ending in 2021. It also clarifies the application of temporary special rules for health and dependent care flexible spending arrangements (FSAs). Building on prior guidance, the relief aims to allow employers to respond to changes in employee needs as a result of the COVID-19 pandemic.

Specifically, for employer-sponsored health coverage, a cafeteria plan may permit employees to prospectively take any of the following actions for plan years ending in 2021:

• Make a new election if the employee previously declined coverage;
• Revoke an existing election and enroll in different health coverage sponsored by the employer; or
• Revoke an existing election, if the employee attests in writing that he or she is, or immediately will be, enrolled in other health coverage.

With regard to health and dependent care FSAs, the guidance provides more details and clarifying examples related to carryovers of unused amounts from the 2020 and 2021 plan years, the extended grace period for plan years ending in 2020 and 2021, mid-year election changes for plan years ending in 2021, and more.

© 2021 HR 360, Inc.

Posted on February 17, 2021

USERRA Requires Paid Leave if Comparable Leaves Are Paid

Employees who take off work for military duty may be entitled to paid leave from their employers, according to a Feb. 3, 2021, federal appeals court decision. The case, White v. United Airlines, Inc., was brought by a United Airlines pilot whose short leaves from work for Air Force Reserve duty were unpaid, although United paid pilots for other short-term leaves of absence, such as jury duty and sick leave.
 
The 7th Circuit Court of Appeals considered language in the Uniformed Services Employee and Reemployment Rights Act (USERRA) requiring that employees on military leave be provided the rights and benefits generally provided to similar employees on other leaves. Finding that “rights and benefits” included paid leave, the court reinstated the case and sent it back to the lower court for further proceedings.

Importantly, the 7th Circuit noted that White, the plaintiff, must now show that any paid leave of absence provided by United is comparable to any given stretch of military leave. Factors to be considered in this analysis, the court said, are the duration and purpose of the leave, as well as the ability of the employee to choose when to take the leave.

The 7th Circuit Court’s jurisdiction covers Illinois, Indiana and Wisconsin.

 

 

© 2021 HR 360, Inc.

Posted on February 09, 2021

Information Current as of Jan. 31, 2021

The Department of Labor (DOL) has released a new model Employer CHIP Notice with information current as of Jan. 31, 2021. As a reminder, employers with group health plans that cover participants in states that provide premium assistance subsidies through Medicaid or the Children’s Health Insurance Program (CHIP) are required to notify their employees annually, regardless of the employer’s location.

The DOL’s model notice, which employers may use for this disclosure, is updated periodically to reflect changes in the states that offer premium assistance subsidies, as well as the contact information for those states. Click here for more information.

© 2021 HR 360, Inc.

Posted on February 03, 2021

Employees May Take Leave for Three Periods of Quarantine or Isolation

Employers who prohibit employees not in quarantine or isolation from coming to work for COVID-19 exposure reasons must pay them their regular rate, according to new guidance issued by the New York Department of Labor (NYDOL). The Jan. 20, 2021, guidance also states that employees may take leave for three periods of quarantine or isolation, among other points. 

In March 2020, New York state enacted a law providing job-protected leave for employees under a COVID-19 quarantine or isolation order. Employee payment during the leave depends on employer size and income.

The NYDOL’s new guidance on the COVID-19 leave law includes the following key points:  

• Employees who return to work after completing quarantine or isolation and then test positive must be provided COVID-19 leave, even if they have already taken COVID-19 leave during an earlier quarantine or isolation period.
• Employees who test positive at the end of quarantine or isolation may not report to work and must be allowed COVID-19 leave. However, it is not recommended that employees be tested to discontinue quarantine or isolation. (With the exception of nursing home staff.)
• Employees not under a quarantine or isolation order, whose employers nonetheless bar them from work due to COVID-19 exposure (or possible exposure) must be paid their regular rate until they return to work or enter quarantine or isolation. Notably, the guidance includes this point despite the COVID-19 leave law's requirement of leave only for employees under a quarantine or isolation order.
• Employees may only take leave for three quarantine or isolation orders, and the second two leave periods must be supported by positive tests.

© 2021 HR 360, Inc.

Posted on February 02, 2021

New Guidance Addresses Credit Extension for Leave Granted Voluntarily

On Jan. 29, 2021, the IRS updated its frequently asked questions (FAQs) on tax credits available to employers for providing paid employee leave under the Families First Coronavirus Response Act (FFCRA). While the paid sick and family leave requirements of the FFCRA expired on Dec. 31, 2020, the law’s tax credits were extended for employers that voluntarily provide the leave to employees through March 31, 2021. The FAQ updates address this extension.

The FFCRA tax credits cover certain costs of the employee leave required by the law: employee wages, health plan expenses allocable to those wages, and the employer’s portion of the Medicare tax related to the wages.

Eligible employers may claim the credits on their federal employment tax returns (e.g., Form 941, Employer's Quarterly Federal Tax Return), but they can benefit more quickly from the credits by reducing their federal employment tax deposits.

© 2021 HR 360, Inc.

Posted on February 01, 2021

Requirement Generally Applies to Group Health Plans Providing Prescription Drug Coverage

Group health plan sponsors are required to complete an online disclosure form with the Centers for Medicare & Medicaid Services (CMS) on an annual basis and at other select times, indicating whether the plan's prescription drug coverage is creditable or non-creditable. This disclosure requirement applies when an employer-sponsored group health plan provides prescription drug coverage to individuals who are eligible for coverage under Medicare Part D.

The plan sponsor must complete the online disclosure within 60 days after the beginning of the plan year. For calendar year health plans, the deadline for the annual online disclosure is March 1, 2021.

Employers that are required to report to CMS should work with their advisors to determine whether their prescription drug coverage is creditable or non-creditable. They should also visit CMS' creditable coverage website, which includes links to the online disclosure form and related instructions.

© 2021 HR 360, Inc.

Posted on January 19, 2021

Employers Subject to EEO-1 Reporting Should Begin Preparing 2019 and 2020 EEO-1 Component 1 Data

On Jan. 12, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it will open four equal employment opportunity (EEO) data collections in 2021. The agency had previously delayed EEO collections in May 2020 due to the coronavirus pandemic.

According to the announcement, EEO reporting will now resume according to the following schedule:

• April 2021: Private employers and federal contractors will be required to file 2019 and 2020 EEO-1 Component 1 data.
• July 2021: Certain public elementary and secondary school districts will be required to file 2020 EEO-5 data.
• August 2021: Certain unions will be required to file 2020 EEO-3 data.
• October 2021: State and local governments will be required to file 2021 EEO-4 data.

© 2021 HR 360, Inc.

Posted on January 14, 2021

Letter Clarifies When Employers May Offer ICHRAs Without Violating the ADEA

A Jan. 7, 2021 opinion letter from the U.S. Equal Employment Opportunity Commission (EEOC) addresses employer contributions to Individual Coverage Health Reimbursement Arrangements (ICHRAs) and compliance with the Age Discrimination in Employment Act of 1967 (ADEA). The letter clarifies that an employer may offer an ICHRA under two scenarios without giving rise to ADEA liability:

• A defined contribution, meaning each employee receives the same employer contribution to the ICHRA. (This could result in older employees bearing both a larger amount and larger proportion of their health insurance premium costs because of age.)
• A specified percentage of premium costs to all employees, rather than a defined contribution. (This would likely result in employers providing larger amounts to older workers.)

The guidance makes clear, among other things, that employers that choose to increase contributions to older employees’ ICHRAs to offset age-based increases will not violate the ADEA. In addition, the ADEA’s prohibition against less favorable health insurance plans for older employees only applies to plans that are offered by the employer. Where the employer has no control over the plans and plays no role in making them available to employees, the ICHRA is not covered by the ADEA.

Employers may rely upon the letter in good faith as a defense to liability for age discrimination.

© 2021 HR 360, Inc.

Posted on January 12, 2021

Proposals Would Generally Strengthen Individuals’ Rights to Access Their Own PHI

The Department of Health and Human Services (HHS) issued a proposed rule that would make certain changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. The proposed changes are primarily intended to support individuals’ engagement in their care and remove barriers to coordinated care.

While many of the proposals primarily impact health care providers and their patients, a number of proposed provisions will also have an impact on employer-sponsored health plans. Specifically, the proposed rule would, among other things:

• Strengthen individuals’ rights to access their own personal health information (PHI), including electronic information;
• Improve information sharing for care coordination and case management for individuals; and
• Modify the content requirements of the Notice of Privacy Practices to clarify individuals’ rights with respect to their PHI and how to exercise those rights.

If finalized, the provisions in the final rule would take effect 60 days after publication. Covered entities would generally have 180 days from the effective date to comply.

© 2021 HR 360, Inc.

Posted on January 12, 2021

Rules Would Establish a De Minimis Limit for Wellness Incentives Under the ADA and GINA

On Jan. 7, 2021, the Equal Employment Opportunity Commission (EEOC) issued two proposed rules on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). These proposed rules were issued in response to a federal court decision that vacated a portion of EEOC regulations describing the incentives that an employer could offer as part of a wellness program in certain circumstances.

Prior regulations established a 30% limit on the permissible incentives a wellness program may offer under both the ADA and GINA. These proposed rules would establish a limit generally allowing de minimis incentives to be offered as part of wellness program participation. Exceptions allowing larger incentives would apply to health-contingent wellness programs that are part of, or qualify as, group health plans under the ADA rules.

These proposed rules have not been finalized and may not be relied upon. The EEOC is requesting comments on the provisions in the proposed rules. Comments on the proposals are due 60 days after the proposed rules are published in the Federal Register.

© 2021 HR 360, Inc.

Posted on January 11, 2021

Leave Permitted for 2020 Births, Adoptions and Placements

The Massachusetts Department of Family and Medical Leave (DFML) has issued emergency regulations for the state's paid family and medical leave (PFML) program. The emergency regulations add personal care attendants and family care providers to the program’s definition of “covered individual.”
 
The regulations also clarify that births, adoptions and foster care placements that occurred during 2020 are qualifying events for family leave in 2021, as long as the leave:

• Is completed within calendar year 2021; and
• Is taken during the first 12 months after the child’s birth, adoption or foster care placement with the covered individual.

The emergency regulations allow acute care hospitals to grant employees an extension beyond the 12-month period for this bonding leave, as long as the leave does not extend beyond Dec. 31, 2021. The extension is intended to help acute care hospitals maximize staffing capacity during the COVID-19 crisis. Other employers seeking a similar extension may submit a request to the DFML director.

© 2021 HR 360, Inc.

Posted on January 06, 2021

New Answers Address Tax Credits and Employee Compensation

The U.S. Dept. of Labor (DOL) has issued two additional Q&As about employee leave under the Families First Coronavirus Response Act (FFCRA).

Q&A 104 explains that employers are not required to provide employees with FFCRA leave after Dec. 31, 2020, even if an employee did not use all available leave in 2020. However, under the Consolidated Appropriations Act, 2021, employers may voluntarily decide to provide this leave. Employers that voluntarily provide leave can receive tax credits for leave provided until March 31, 2021.

Q&A 105 states that employees must be compensated for FFCRA leave taken before Dec. 31, 2020. Employees whose employers failed to pay them for FFCRA leave that occurred before Dec. 31, 2020, may file a complaint with the DOL’s Wage and Hour Division within two years of the last action alleged to be in violation of the FFCRA. According to the Q&A, employees may also have a private right of action for violations.

© 2021 HR 360, Inc.

Posted on December 30, 2020

Requirement Applies Even to Employers With Fewer than 16 Employees

On Jan. 1, 2021, Colorado employers will have to provide workers with up to 80 hours of paid public health emergency leave (PHEL) under the state’s Healthy Families and Workplaces Act, passed in July 2020. The requirement was clarified in guidance and temporary emergency rules issued by the state’s  Department of Labor and Employment (DLE) on Dec. 23, 2020.

The PHEL requirement mandates that on the date a public health emergency is declared, employers provide full-time employees with enough supplemental paid leave to ensure they have a total of 80 hours of paid leave to use for specified purposes related to the emergency. Part-time employees are entitled to a lesser amount of the supplemental paid leave, and all employees may use the leave for four weeks following the end of the public health emergency.

According to the DLE’s Dec. 23 guidance and temporary rules, the PHEL requirement was triggered by Colorado executive orders declaring and extending a COVID-19 public health emergency through at least Dec. 27, 2020. Employers with fewer than 16 employees must provide 80 hours of PHEL, despite not having to provide general paid sick leave under the Healthy Families and Workplaces Act until 2022.

© 2021 HR 360, Inc.