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EEOC Continues its Rampage Against Wellness

This week, the EEOC filed its third, and perhaps most significant, complaint in a wellness-related case.  The complaint alleges that the wellness program, which involved biometric screening and a surcharge for tobacco users, violates the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA). The ADA complaint is that the program requires a medical examination that is not job-related or consistent with business necessity.  The GINA complaint is that the employer is providing a prohibited inducement to receive genetic information. The maximum penalty under the program is $4,000 per year.

While the details of the program are not fully fleshed out in the complaint, this appears to be an escalation of the EEOC’s focus on wellness programs.  While $4,000 is a significant sum of money, this appears to us to be a typical wellness program.

The frustrating aspect of these wellness program lawsuits is

Reporting and Disclosure Guidance

Reporting and Disclosure Guidance

October 28, 2014

Authored by: benefitsbclp

On October 17, 2014, the Internal Revenue Service published a guide entitled “Retirement Plan Reporting and Disclosure Requirements Guide.” The Service states that the Guide is intended to be a quick reference tool to assist plan sponsors and administrators and is to be used in conjunction with the Department of Labor’s “DOL Retirement Plan Reporting and Disclosure Guide” [sic]. The DOL Guide was last updated in August 2013 and is actually called “Reporting and Disclosure Guide for Employee Benefit Plans”.

The IRS Guide covers twenty-five basic notices and disclosures, and, of course, not all of them would pertain to a particular plan. The type of plan determines the number and frequency of participant notices/disclosures. The IRS Guide addresses eleven possible reports, and, as with disclosure, the requirement for reporting depends on the nature of the plan.

The DOL’s Guide identifies thirty-three possible

2015 Qualified Plan Limits!

2015 Qualified Plan Limits!

October 24, 2014

Authored by: Julie Wagner and Lisa Van Fleet

They’re here!  The 2015 IRS plan limitations arrived a full week earlier than last year.  Most of the limitations have been adjusted upwards.  See the chart below (after the jump) to see the new limits as well as a summary of the limits over the preceding three years.

Ebola and the FMLA

Ebola and the FMLA

October 22, 2014

Authored by: Christy Phanthavong and Chris Rylands

519410079By now, many U.S. employers are heavily involved in preparing for workplace issues implicated by Ebola.  From a benefits perspective, make sure your planning gives appropriate consideration to the Family and Medical Leave Act (FMLA).

Undoubtedly, an employee who is eligible for FMLA leave will be entitled to such leave if the employee contracts Ebola, based on having a serious health condition that requires leave from work.  Similarly, an eligible employee whose covered family member contracts Ebola is likely to be entitled to leave to care for such family member (even if such “care” involves only psychological care and not physical care).

But what about the employee who is exposed or potentially exposed to Ebola, and, as a result, is requested or required – or even just volunteers, based on potential exposure

Act Now to Obtain a Controlling Health Plan HPID

Health PlanIn light of the numerous unresolved issues surrounding the process for plan sponsors to obtain a health plan identifier (“HPID”) for their  self-funded health plan, we suggested in an earlier post that plan sponsors consider delaying the application process in the hope that regulators would address at least some of the unanswered questions.  Since that time, the Centers for Medicare and Medicaid Services (“CMS”) has updated its Health Plan and Other Entity Enumeration System User Manual and issued a set of Frequently Asked Questions.  As the deadline for obtaining an HPID approaches, the time for waiting is over.

HPIDs are obtained through the Health Plan and Other Entity Enumeration System (“HPOES”) portal, which is a component of the CMS Health Insurance Oversight System (“HIOS”).   However, plan sponsors must first obtain access to the CMS Enterprise

Self-Insured Plans – One More Reminder – Get those SSNs!

Self-Insured Plans – One More Reminder – Get those SSNs!

October 16, 2014

Authored by: benefitsbclp

Annual open enrollment is always a complicated time for benefits teams…. Questions abound: Is the coverage offered legally compliant? What is the latest and greatest notice that must be included in the annual open enrollment package? Have the rules changed regarding how we send the notices?

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Well, this year is no different. With the advent of the employer mandate’s enforcement, there are many new requirements that benefits and HR teams are grappling with to ensure compliance. We wanted to take a moment to post a specific reminder about collecting social security numbers for self-insured plans providing minimum essential coverage.

As you are likely aware, self-insured plans will need to begin the onerous reporting process to comply with Code Sections 6055 and 6056 beginning in Q1 2016. But, what may have slipped

Quirky FMLA Counting Rules: Leave Prior to Eligibility

Quirky FMLA Counting Rules: Leave Prior to Eligibility

October 15, 2014

Authored by: Christy Phanthavong and Chris Rylands

488281517Continuing our discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), today we address these questions: May leave granted to an employee who is not eligible for FMLA leave be designated as FMLA leave? And may that leave be counted against the 12-week FMLA leave entitlement.

The short answer (to both) is:  No.

This question typically arises because an employer is trying to be generous.  For example, the employee is a newer employee and needs leave, but has not yet worked for the employer for 12 months or 1,250 hours.  Or perhaps the employer has various office locations and wants to allow employees in smaller offices (which do not meet the 50 employees in 75 miles eligibility rule) to take FMLA leave just like employees in larger

Check it Out and Check it Off: 2015 Group Health Plan Checklist

Check it Out and Check it Off: 2015 Group Health Plan Checklist

October 14, 2014

Authored by: benefitsbclp

460326385With 2015 just around the corner, certain mandates under the Patient Protection and Affordable Care Act, as amended (“ACA”) are about to become effective. Health plans also have several existing enrollment and annual notice requirements. Below is a checklist of upcoming ACA mandates that employers must implement in preparation for or in 2015 and a summary of existing enrollment and annual notice requirements.

For a refresher on the ACA mandates which became effective this year, please see our 2014 group health plan checklist here.

I. ACA Requirements That Apply to All Group Health Plans (Whether Grandfathered or Not)

On or beginning with the dates specified below, a group health plan must comply with the following requirements, regardless of its status as a “grandfathered health plan”:

Obtain a Health Plan Identifier Number (HPID).

HHS Guidance Recognizes HIPAA Privacy Rights of Same-Sex Spouses and Dependents

On September 17th, the Department of Health and Human Services Office for Civil Rights (“HHS”) issued guidance to assist covered entities and business associates in complying with the privacy requirements under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) following the decision issued by the Supreme Court in United States v. Windsor.  The guidance clarifies that same-sex spouses, determined under the “state of celebration rule,” must be afforded the same privacy rights as opposite-sex spouses.

The guidance from HHS clarifies that for purposes of the HIPAA privacy rules, the term “spouse” includes individuals who are in a legally valid same-sex marriage sanctioned by a state, territory or foreign jurisdiction (as long as a U.S. jurisdiction would also recognize the marriage) whether or not they live or receive services in a jurisdiction that recognizes their marriage.  Similarly, the guidance provides that the term “marriage” includes

2014 Year-End Qualified Retirement Plan Checklist

2014 Year-End Qualified Retirement Plan Checklist

October 9, 2014

Authored by: benefitsbclp

CheckIt’s time to ensure year-end qualified plan deadlines are satisfied. Below is a checklist designed to help employers with this process.  This checklist addresses both year-end deadlines and January 2015 deadlines which sponsors of qualified retirement plans may wish to begin preparing for now.

A.        DEADLINES APPLICABLE TO QUALIFIED RETIREMENT PLANS

  • Cycle D Sponsors.  Individually designed plans are on five-year cycles for renewing their determination letters with the IRS.  For most Cycle D sponsors (i.e., those sponsors with an employer identification number ending in either 4 or 9), the five-year cycle will end on January 31, 2015.  Generally, multiemployer plans are assigned to Cycle D.

Individually designed plan Cycle D sponsors (and multiemployer plan sponsors) who have not already renewed their determination letter this cycle should be prepared to

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