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Employer Vaccination Mandates and Medical Premium Surcharges

Jeff Griffin

Many employers are struggling to increase COVID-19 vaccination rates among their workforce, concerned not only about the safety of the workforce but also the costs of COVID-19 treatment that could be avoided through vaccination.

Some, like Delta Airlines, are turning to higher premium costs, or a surcharge, for any group health plan participants who remain unvaccinated. This decision by Delta, taken once an FDA-approved vaccine came on the market, should by no means be interpreted as a full-throated endorsement of this action. In fact, it’s quite likely that Delta’s decision will be tested in the courts.

Challenges are likely to come in three areas: wellness positioning, surcharge amounts, and possible discrimination. Nevertheless, Delta’s decision has prompted some employers to consider doing something similar.

Here are issues employers need to consider if they decide to take similar action.

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Topics: Compliance, Cost Containment, wellness, COVID-19

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Vendor Contracts – Beware of These Five Pitfalls in Employee Benefits Agreements

Jeff Griffin

Anyone who has ever signed up for cellular phone service with a mobile phone carrier knows what a burdensome service agreement looks like. It's pages and pages of terms and conditions, often delivered by an anxious salesperson consumed with an expectation that the customer desiring service will sign the carrier agreement on the spot.

While consumer law often provides protections to the little guy when big corporations require the signing of contacts like this, the courts aren't nearly as understanding when it comes to agreements between business parties. In many of these cases, the courts expect business-to-business agreements to be fully enforced.

This is particularly unfortunate given what's occurred over the last decade in the employer-sponsored group benefits space. These agreements have morphed from straightforward, comprehendible documents to verbose and cryptic agreements that shift virtually all risk to the plan sponsor (e.g., the employer) while relieving the vendor from almost all meaningful liability.

Plan sponsors have seen some of this behavior abate in recent years, fueled by their successful push back against commercially unreasonable contract provisions. Furthermore, the DOL's Fiduciary Rule, which went into effect July 1, 2019, has also helped neutralize some of these more unreasonable provisions.

Nevertheless, employers should resist the temptation to view the provisions of their employee benefits vendor contracts as minor details. The wrong provisions could easily bankrupt a small to medium-size business or cripple the growth of a larger one.

Although every single word of every vendor contract needs to be reviewed carefully by not only you and your employee benefits broker, but also qualified legal counsel, here is a list of five common provisions that require special attention.

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Topics: Compliance, Legal Review

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2021 IRS Contribution Limits For HSA, HDHP, FSA, 401(k), QSEHRA, Adoption and Transportation

Jeff Griffin

The IRS recently finalized adjustments to 2021 contribution limits on various tax-advantaged health and dependent care spending accounts, retirement plans, and other employee benefits such as adoption assistance and qualified transportation benefits. Many of these contribution limits, though not all, are indexed to cost-of-living adjustments.

Together, these annual announcements by the IRS detail any adjusted limits to the amounts employees can tuck away pretax into Flexible Spending Accounts (FSAs), Health Savings Accounts (HSAs), Commuter Benefits, and Retirement Plans such as 401(k)s for the upcoming year.

While IRS limits for HSAs are required, by law, to be announced by June 1st, limits for these other pretax savings vehicles always seem to come so late in the year that many employers have already completed their employee benefits open enrollments.

As frustrating as this is, employers would be well-served to get this information out to their employees so they can take full advantage of these pretax savings vehicles. That said, there are not all that many changes for 2021.

What follows is a summary of limits employers and employees need to know.

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Topics: Compliance, Employee Communications, HSAs, Retirement Planning, HDHPs, FSAs

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EEOC Issues 7th Update To Employer Guidance on Coronavirus and the ADA

Jeff Griffin

Yesterday, the Equal Employment Opportunity Commission (EEOC) issued their seventh update to nearly 50 FAQs they have been publishing since March 18th, addressing how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic.

While their latest update primarily addresses antibody testing, the guidance, in its entirety, is quite informative, so much so that we wanted to share it here.

While it's a good idea for every employer to follow the CDC's latest guidelines for maintaining workplace safety, only employers with 15 or more employees are subject to the ADA (though smaller employers may be subject to similar rules under applicable state or local laws.)

Regardless, even smaller employers can benefit from the guidance provided in these EEOC FAQs about ADA compliance. 

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Topics: Compliance, Telecommuting, COVID-19

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The Pros and Cons of Monitoring Work-From-Home (WFH) Employees Remotely

Jeff Griffin

Due to the coronavirus (COVID-19) pandemic, more employees are working remotely than ever before. And, even as businesses begin to reopen across the country, remote work will likely remain popular for the foreseeable future.

While remote work arrangements help keep employees healthy and safe in the midst of the COVID-19 pandemic, they create unique challenges for teams and managers. One of these challenges involves monitoring remote workers. Employers across the nation are leveraging various technologies and tools to monitor employee productivity, and active and idle time.

While these tools can help employers ensure employees are working while they’re at home, they come with their own set of legal risks. Moreover, the practice of using such tools to monitor employees may create tension between employees and managers, as employees may feel like they’re not being trusted.

There are benefits and drawbacks to monitoring remote employees, as well as a host of legal considerations. This article provides a general overview of the pros and cons of monitoring remote workers and outlines general best practices for doing so.

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Topics: Compliance, Telecommuting, COVID-19

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Common Employment Practices Claims Arising Out of COVID-19

Jeff Griffin

COVID-19 has brought massive upheaval upon the American workplace. Employers have found themselves drafting and implementing policies and procedures addressing a wide array of issues including remote work, layoffs, furloughs, pay cuts, workplace conditions and many more.

Not surprisingly, the uncertainty wrought by COVID-19 has left employers at an increased risk of exposure to employment-related claims alleging wrongful termination, discrimination, retaliation and many others.

In this post today we'll cover the most common potential causes of action related to COVID-19 that may lead to employment-related litigation. As is the case with all inherently legal issues, employers are strongly advised to seek the guidance of legal counsel when faced with any of the claims discussed here.

WORKPLACE HEALTH AND SAFETY

There have already been a multitude of safety violation claims filed under the Occupational Safety and Health Act (OSHA) and state equivalents. These safety violations typically allege that an unsafe workplace has caused sickness and/or death due to COVID-19, or that an employer failed to take appropriate measures to reduce COVID-19 exposure and spread within the workplace.

Such “appropriate measures” might include failure to provide hand-washing stations, sanitizers, masks, or adequate protective gear on location. Other claims have alleged that employees have been unable to practice social distancing due to the nature of their jobs.

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Topics: Compliance, Risk Management, COVID-19, ERISA

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Leaves of Absence: Do Employers Need to Provide Health Insurance During These Times?

Jeff Griffin

Employees who take qualifying leaves of absence are provided multiple protections by way of the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Act (USERRA), and many state laws.

The most well-known protection is the guarantee of the same or an equivalent job when employees return to work, but there are also other protections. For example, many of these laws stipulate employers’ obligations regarding health insurance during employees’ qualifying leaves of absence.

The following is a breakdown of FMLA, USERRA, and some general state laws with regards to employer-provided health insurance coverage.

FMLA and Health Insurance

In order to meet the requirements for an FMLA-qualifying leave of absence, employees must meet four criteria.

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Topics: Compliance, Qualifying Life Events, FMLA, USERRA

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Best Practices For Maintaining Legally Compliant Workplace Wellness Programs

Dr. Christine Maxwell

There are several comprehensive federal statutes that impact workplace wellness programs. While employers who invest in wellness initiatives almost always do so with the best of intentions, violations of these regulations can be costly.

Today we'll focus on three key federal laws which employers should keep in mind when building out a wellness plan. They are as follows;

1. The Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (HIPAA) includes nondiscrimination rules that apply to wellness plans being offered in connection with group health plans. Under HIPAA, workplace wellness programs are divided into two categories: participatory wellness programs and health-contingent wellness programs.  

Here are the main differences between these two types of programs;

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Topics: Employee Benefits, Compliance, wellness, employee wellness, wellness program

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Keeping Your Wellness Program Compliant

Dr. Christine Maxwell

You don’t have to be a health insurance expert to know that healthcare coverage makes up a significant portion of businesses’ operating costs. Looking ahead to next year, Willis Tower Watson predicts the average annual per-employee cost for health insurance will increase 5.3% to $12,850 (up from $12,200 in 2017).

Understandably, employers are always looking for ways to get a firmer handle on rising healthcare costs and often turn to wellness programs as a possible solution.   

Three Important Federal Laws That Affect Wellness Plans

Before you launch a wellness program, it’s important to do your homework. Mistakes can be costly for both your employees and your bottom line. One area you should pay particularly close attention to is the intersection of wellness plans and federal law.

There are several comprehensive federal statutes that impact workplace wellness plans, so before you put your plan in place, make sure you consult with a legal expert who can help you stay on the right side of the law.

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Topics: Employee Benefits, Compliance, wellness, employee wellness, wellness program

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IRS Finally Announces Official Contribution Caps For FSAs, 401(k)s, HSAs and More (Includes Comparison Tables)

Jeff Griffin

This afternoon the IRS officially announced the final 2020 election/contribution limits for Flexible Spending Accounts (FSAs), qualified Commuter Benefits, and several retirement savings vehicles. (See comparison tables, below.)

Considering that many employers have already held their employee benefits Open Enrollments for 2020, today’s announcements by the IRS can best be filed under the “better late than never” category.

These IRS statements finally set official contribution limits for Health Care FSAs, Dependent Care FSAs, Limited Purpose FSAs, Qualified Parking and Qualified Transportation Saving Plans, 401(k)s, 403(b)s, most 457 plans, IRAs, SIMPLE Plans, and the Federal Government’s Thrift Savings Plan.

All of these saving plans provide participants with the opportunity to save money, either by paying for qualified expenses with pre-tax savings contributions, or by saving for retirement with pretax elections. 

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Topics: Compliance, Employee Communications, HSAs, Retirement Planning, HDHPs, FSAs

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