Employee’s Widow Can Sue Walmart for Life Insurance Benefits – 6th Circ.

“The 6th U.S. Circuit Court of Appeals said a lower court erred in dismissing Ruth Mae Chelf’s claims for breach of fiduciary duty based on the ‘ministerial function’ exception to ERISA. That defense was unavailable to Walmart because Walmart was a fiduciary as it indisputably exercised control over the Plan’s assets when it handled Mr. Chelf’s premiums, exercised control over the disposition of the Plan’s assets, and had discretionary authority over the administration of the Plan.”  Full Article

– Reuters

Qualified Parking Compensation Reductions Unused Due to COVID-19 Cannot Be Transferred to Health FSA

“The Code prohibits cafeteria plans from offering qualified transportation fringe benefits, and IRS rules do not permit unused compensation reduction amounts under a qualified transportation plan to be transferred to a health FSA under a cafeteria plan. Because some risk of loss due to changing circumstances is unavoidable, employers should clearly articulate that risk to employees before they make compensation reduction elections.”  Full Article

– Thomson Reuters / EBIA

Deadline Approaching Under Health Plan Price Transparency Rules – Public Disclosure of Provider Reimbursement Rates Due by July 1, 2022

“To meet the Transparency in Coverage requirements that will be enforced starting on July 1, 2022, plans and issuers must create two files — one to disclose in-network provider rates for covered items and services and another to disclose out-of-network allowed amounts and billed charges for covered items and services.”  Full Article

– Foley & Lardner LLP

Ohio’s Surprise Billing Law – Impact on Health Plans

“While the Ohio Surprise Billing Law intends to shield insureds from surprise medical costs, health plans and insurers may end up paying these costs in some instances. These additional costs are expected, at least in large part, to be ultimately borne by employers through increased reimbursement rates and higher premiums.”  Full Article

– Jackson Lewis P.C.

A Fix for the ACA’s ‘Family Glitch’

“If an employee in a family was offered affordable self-only coverage, the employee would still not be eligible for premium tax credits. The family would thus have to purchase two policies — one for the employee through the employer and one through the marketplace for the remaining family members. The family also may have to meet two deductibles, be subject to two out-of-pocket limits, and might find itself in two different provider networks. Families with more than one employee offered self-only coverage may need to purchase several policies, one for each employee and a marketplace plan for the remaining family members.”  Full Article

– The Commonwealth Fund

Washington State Retools First-In-the-Nation Long-Term Care Benefit

“The WA Cares Fund, which was set to begin collecting money for the program with a mandatory payroll tax on workers in January, has been delayed while lawmakers made adjustments during the current legislative session. Payroll deductions will start in July 2023, and benefits will become available in July 2026. Other states are watching Washington closely as they weigh offering coverage for their own residents.”  Full Article

– Kaiser Health News

Is an Emoji Worth a Thousand Words? The Impact of Emojis in the Workplace

“Work does not always occur within the physical confines of a workplace. Indeed, due to the interconnectivity of today’s world, work often takes place in the digital space, where employees regularly use pictorial icons and images known as emojis and emoticons to express themselves. Although emojis and emoticons are not hieroglyphics, they can be difficult to interpret, and courts have increasingly had to grapple with them as evidence in discrimination and harassment claims.”  Full Article

– Littler Mendelson

Restaurant’s Mandatory Service Charge is Not a “Tip” Under FLSA

“Tipped employees at Miami’s Nusr-et Steakhouse sued their employer, alleging that the restaurant violated the Fair Labor Standards Act by counting payments to employees from the restaurant’s mandatory 18% “service charge” as part of the employees’ “regular rate of pay,” rather than as tips. The district court rejected the employees’ claim and granted the restaurant’s motion for summary judgment, holding that the service charge was not a tip. In Compere v. Nusret Miami, LLC, 2022 U.S. App. LEXIS 7293 (11th Cir. Mar. 18, 2022), the Eleventh Circuit affirmed.”  Full Article

– Eversheds Sullivan

Recall Message! Do Yourself (and Your Employer) a Favor and Sharpen Your Email Game

“Email isn’t a new technology. By now, we all know that our work emails aren’t private, and most of us exercise some discretion in deciding what to “put in writing” in our business communications. We’ve heard horror stories of incriminating emails turning up in business lawsuits. Yet, despite our awareness of these risks, the problem persists. Time and again, bet-the-company lawsuits turn on the content of internal work emails. And it’s not just so-called “smoking gun” emails where an employee admits wrongdoing. More often, the key emails are seemingly innocuous co-worker communications that, due to their poor wording, are taken out of context and made to look malicious, heavy-handed, or insensitive.”  Full Article

– Robbins Kaplan

BREAKING NEWS: OFCCP Releases New Directive Setting Expectations of Contractors During Compliance Reviews

“Directive 2022-02: Effective Compliance Evaluations and Enforcement issued March 31, 2022 is intended to “strengthen OFCCP compliance evaluations and reduce delay by promoting the timely exchange of information”. It also sets a number of expectations for contractor conduct and compliance during reviews, rescinding a number of previous Directives that set out transparency and expectations and timelines for submission of information – commonly known as previous OFCCP Director Craig Leen’s Four Pillars.”  Full Article

– Jackson Lewis

Department of Labor Issues Strong Caution on Use of Cryptocurrencies in 401(k) Plans

“The U.S. Department of Labor (the DOL) has issued a compliance release that provides strong caution against ERISA fiduciaries of 401(k) and 403(b) plans including cryptocurrencies as plan investment options. In an unusual move, the DOL has cautioned fiduciaries to “exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan’s investment menu for plan participants.”  Full Article

– Cozen O’Connor

Five Employment Law Remarks in President Biden’s State of the Union Address

“In his March 1, 2022 State of the Union Address, President Biden briefly touched upon a handful of employment reforms he is urging Congress to pass. This article is intended to help employers understand five of President Biden’s remarks, summarize what those remarks referenced, and describe the status of potential legislation relating to them.”  Full Article

– Venable

ACA Round-Up: Recent Developments

“Federal officials continued to issue guidance on the Affordable Care Act in early 2022. This article summarizes the status of the so-called SUNSET rule, new materials for the 2023 plan year, Section 1332 waiver applications for Minnesota and Virginia, new risk adjustment data validation results, and guidance from the Internal Revenue Service and Centers for Medicare and Medicaid Services on the ACA and the eventual unwinding the public health emergency.”  Full Article

– Health Affairs

On Remand from Supreme Court, Eighth Circuit Rules That ERISA Does Not Preempt State PBM Regulation

“Following the reasoning of the Supreme Court in Rutledge, the Eighth Circuit found that none of the challenged provisions in the North Dakota law had an impermissible connection with the ERISA plans. The court stated that the provisions at issue did not: [1] Regulate a central issue of plan administration, [2] Interfere with uniform plan administration, or [3] Force a plan to adopt a specific structure in terms of coverage or choice of insurers.”  Full Article

– Hall Benefits Law

No Surprises Act: Guidance for Health Plans and Insurers

“Recently enacted legislation has restricted surprise medical billing for health plan participants who receive services at out-of- network health provider facilities in emergency contexts. The legislation also restricts surprise medical billing for services provided by health providers at in-network facilities and includes protections involving air ambulance services. Effective beginning in 2022, the legislation imposes significant compliance requirements for group health plans and insurers.”  Full Article

– Thomson Reuters

Benefits Issues That Arise Upon Misclassification of Employees

“The effects of worker misclassification on employee benefit plans may include, but are not limited to: [1] failure to provide employee benefit coverage and appropriate remedial action; [2] failure to make employer and employee contributions to retirement and other employee benefit plans; [3] failure to provide the individual with required benefit plan disclosure and administrative notices; and [4] excise taxes under the ACA for failure to provide required health plan coverage.”  Full Article

– Foley & Lardner LLP

New Illinois State Law Imposes Disclosure Requirements on Group Health Plans

“The CCDA requires employers that sponsor group health plans with employees in Illinois to disclose a comparison of the plan’s coverage to certain ‘Essential Health Benefits’ required by Illinois state law. The CCDA broadly applies, regardless of the employer’s size or its location, to fully insured and self-funded group health plans. Additionally, the Illinois DOL has taken the position that the CCDA also applies to ERISA-covered self-funded group health plans.”  Full Article

– Miller Johnson

Congress Reopens Door for HSA with No-Deductible Telehealth, But with a Hole

“The Consolidated Appropriations Act of 2022 restores the exception for telehealth and other remote services, but only for the period from April 1 through December 31, 2022. This means that if a plan’s year started at any time from January 1, 2022 through March 31, 2022, and the plan did not impose the minimum deductible for telehealth or other remote services from the start of the plan year through March 31, 2022, the plan would not be a high-deductible health plan for that period. Consequently, participants covered by the plan would be ineligible to make or receive HSA contributions for that period.”  Full Article

– Proskauer