As has been widely reported, the Supreme Court has overturned the 1973 decision Roe v. Wade. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court concluded there is no directly embedded Constitutional right to an abortion. Instead, the Court ruled that individual states can now regulate abortion.

So what will this mean for medical plan sponsors?

STATE REGULATION

Some states have already passed laws restricting abortion, while others have enacted “trigger laws” that ban or restrict abortion when Roe is overturned. (Laws regarding abortion vary by state and a complete rundown of these laws is beyond the scope of this initial write-up.) Additionally, it is likely that further legislative changes at the state level will be made in response to this decision, so this is a highly fluid situation.

That said, the immediate impact for a state like Arizona can be summed up in one word - uncertainty. Experts predict an immediate challenge to Arizona's anti-abortion laws as well as a fight to determine which of two anti-abortion laws will take precedence. One law was written 158 years ago while one is practically brand new.

The old law, created in Arizona’s territorial days, is a strict ban on providing or helping to provide an abortion, except to save the mother's life. It calls for a mandatory prison sentence of two to five years for violators.

Republicans in the state Legislature passed the new anti-abortion law this year; Gov. Doug Ducey signed it into law in March. Scheduled to take effect 90 days after the Legislature adjourns its current session (which may happen by the end of June), it bans abortions after 15 weeks of pregnancy except if necessary to save the mother’s life. Violating physicians face potential felony charges and loss of their professional licenses.

The state court system, likely the Arizona Supreme Court, will need to settle the issue as women seeking abortions and abortion service providers wait for guidance. Since this question remains unanswered, Planned Parenthood of Arizona has paused all abortions, both medical and surgical, and seven of nine licensed providers in the state have immediately halted abortions.

FEDERAL REGULATION OF HEALTH PLANS

Notably, in the employee benefits context this decision indirectly affects group health plans, especially insured plans issued in states that ban or limit abortion. Self-insured plans are also impacted, because though exempted from complying with state-mandated health care services, they must comply with state laws whenever reimbursing medical expenses incurred by plan participants.

Shown below is a list of key issues employers should consider in response to this decision. Note, however, that just as state laws are likely to be enacted in response to this decision, new federal rules may be introduced to modify the treatment of certain healthcare services, which would impact some of the considerations noted below.

If you’re an employer who has not yet made public your in-network negotiated rates, out-of-network billed charges, and historically allowed amounts, you have less than two weeks to complete this task.

This rule came into being through a series of overlapping transparency rules passed by congress in 2020 and 2021. Some were a part of a rulemaking from 2020 (the “Transparency in Coverage Rules” or “TiC Rules”), while others were enacted as part of the Consolidated Appropriations Act, 2021 (the year-end 2020 COVID relief bill or the “CAA”)).

Most fully-funded employers are conforming to this rule by simply ensuring that their carrier partners are making this information publicly accessible. Other employers, especially those who are self-funded, are conforming to this rule by accessing and posting links on their websites, which are being provided by insurance carriers or third-party administrators (TPAs) who are hosting these rates and historical payments on their own websites. Still, other employers are publishing this information directly on their own websites. 

That said, employers and group health plans must familiarize themselves with this disclosure requirement as insurance carriers and TPAs expect group health plan sponsors to assist them with posting the machine-readable files.

Here’s a recap of what the Transparency Rules entail;

The IRS has finally announced adjustments to 2022 contribution limits on various tax-advantaged health and dependent care spending accounts, retirement plans, and other employee benefits such as adoption assistance and transportation benefits. Many of these contribution limits, though not all, are indexed to cost-of-living adjustments.

Together, these combined announcements by the IRS detail 2022 adjusted limits to the amounts employees can tuck away pretax into Flexible Spending Accounts (FSAs), Health Savings Accounts (HSAs), transportation benefits, and retirement plans such as 401(k)s.

While IRS limits for HSAs and HDHPs 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.

Employers who have already completed open enrollment for 2022 have two choices when it comes to communicating these updates; 1) they can do nothing, since there isn't an obligation to make the maximum election amounts available to employees, or 2) they can reopen the enrollment process and let employees who want to increase their elections do so before December 31st, for calendar year plans.

What follows is a summary of the new IRS limits;

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.

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.

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.

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. 

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.

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.

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.