Fifth Circuit Reverses Denial of Preliminary Injunction in Vaccine Mandate Case

“A split panel in the Fifth Circuit is the first appellate court to signal certain private employer mandates could be vulnerable. The opinion reverses the district court’s denial of a preliminary injunction against the airline’s mandatory vaccine program.”  Full Article

– Littler

COVID-19 Testing Provider Sues Plans and TPAs for Violating Group Health Plan Coverage Mandate

“In a footnote to its opinion, the court acknowledged the plan’s assertion that the price of the testing was too high and noted that its ruling did not foreclose a counterclaim challenging the propriety of the pricing.”  Full Article

– Thomson Reuters / EBIA

March 1 Deadlines for Group Health Plans

“An employer with a group health plan that provides prescription drug coverage to Medicare-eligible individuals must make an annual disclosure to CMS within 60 days after the beginning of the plan year — no later than March 1, 2022 for calendar-year plans. The plan must report small HIPAA breaches occurring in 2021 no later than March 1, 2022. A ‘small’ breach is one affecting 500 or fewer individuals.”  Full Article

– Venable LLP

The Clock Is Ticking: HIPAA Small Breach Notifications Due March 1st

“Covered entities must report small breaches to OCR no later than 60 days after the end of the calendar year in which the small breaches were discovered. Steps to take for notifications [1] Designating a person within the covered entity [2] Preparing the contents of the notification in advance [3] Printing out and retaining a ‘receipt’ of the filing of the notification [4] Verifying that the covered entity has appropriate documentation in place.”  Full Article

– Davis Wright Tremaine LLP

Tolling of Important Health and Welfare and Retirement Plan Deadlines Extended Again Due to COVID-19

“On February 18, 2022, President Biden again formally extended the COVID-19 National Emergency. Certain deadlines continue to be tolled for one year (or, if earlier, 60 days from the end of the National Emergency). For Participants: [1] COBRA qualifying event and disability extension notices [2] COBRA election [3] COBRA premium payments [4] HIPAA special enrollment period [5] Benefit claims and appeals [6] External review [7] Perfecting a request for external review. For Plan Administrators: COBRA Election Notice.”  Full Article

– Groom Law Group

Recent Guidance on Implementing the No Surprises Act

“The No Surprises Act was enacted in December 2020 and went into effect on January 1, 2022. With just a year between enactment and the law’s effective date, the Biden administration moved swiftly to implement the law by issuing several interim final rules, one proposed rule, and guidance. But federal officials have not stopped there and have continued to issue new guidance, answer questions, and establish new processes. This article summarizes recent federal guidance on the No Surprises Act.”  Full Article

– Health Affairs

New Federal Contractor Minimum Wage Hike Heads to Court

“On February 8, 2022, just days after the Department of Labor’s (“DOL”) Final Rule “Increasing the Minimum Wage for Federal Contractors,” implementing Executive Order (“EO”) 14026, went into effect, five states – Arizona, Idaho, Indiana, Nebraska and South Carolina – filed a lawsuit – in Arizona federal district court, seeking, among other things, a court order invalidating the federal contractor minimum wage Final Rule and EO 14026.”  Full Article

– Crowell & Moring

A Brief Status Report on COBRA

“The normal difficulties that employers have adhering to the technical requirements of COBRA have been exacerbated during the past two years as COBRA rules were changed to recognize the complications accompanying the COVID-19 pandemic. This added complexity is particularly worrisome as an employer’s simple oversight in administering COBRA can result in ERISA penalties, an excise tax, unintended self- insurance of medical claims, and litigation, including class-action lawsuits.”  Full Article

– Jackson Lewis

Biden Task Force Aims to Increase Unionization Efforts with Pro-Union Report

“The Biden administration’s task force on organized labor recently released a report outlining steps to promote unionization amongst private and public sector employees and to strengthen labor unions. The Task Force on Worker Organization was created by executive order in April to enact policies for federal agencies and contractors that encourage unionization and to model best practices for private and public sector employers. It is co-chaired by Vice President Kamala Harris and Secretary of Labor Marty Walsh.”  Full Article

– Barnes & Thornburg

New Nationwide Ban against the Enforcement of Mandatory Arbitration Agreements in Sexual Misconduct Cases

“On February 10, 2021, the US Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act), a bipartisan bill that invalidates and renders unenforceable predispute arbitration agreements in any case alleging sexual assault or sexual harassment. The US House of Representatives passed a version of the bill on February 7, 2021. US President Joe Biden is expected to sign the bill into law soon.”  Full Article

– McDermott Will & Emery

Female Video Game Developers Show Importance of Diversity

“Recent news about Activision Blizzard’s workplace harassment has triggered broader conversations about female treatment in the video game industry. While Microsoft’s plan to acquire Activision Blizzard could lead to improvements, sexist gender stereotypes have long plagued the gaming industry. Part of the culture stems from the lack of female video game developers as well as a lack of representation at the executive levels of gaming companies. A report released by Activision showed that only 25% of its employees were women. At the executive levels, that number was significantly lower”  Full Article

– Carpenter Wellington

Impact of Recent OSHA and CDC Updates on Employers’ Mandatory Vaccination Policies

“Now that OSHA has withdrawn its vaccine or test rule, many employers are considering the use of mandatory vaccination policies in their workplaces. Employers have met this development with varied responses – some employers have rescinded vaccination requirements that were compliant with the more stringent OSHA Emergency Temporary Standard (“ETS”) requirements, some have retained mandatory vaccination policies compliant with the now-withdrawn ETS, and still others have created mandatory vaccination policies without reference to the ETS.”  Full Article

– Mintz

Medical Plan Surcharge for COVID-19 Unvaccinated: Checklist for Plan Sponsors (PDF)

“A medical plan surcharge for the COVID-19 unvaccinated is workable, but complex. To implement a surcharge for COVID-19 unvaccinated participants, plan sponsors need to take these steps.”  Full Article

– Fox Rothschild LLP

The 2021 Mental Health Parity Grades Are In: Everybody Failed

“The DOL issued 156 letters to plan sponsors and insurance providers requesting information about comparative analysis for NQTLs, and the initial responses were all insufficient. [The report] contains helpful information for those sponsors who were not part of the initial investigation. The agencies characterized the responses as generic, unresponsive, and lacking in sufficient detail and supporting documentation.”  Full Article

– Jackson Lewis P.C.

You Have Questions, the Government Has Answers Regarding Group Health Plan Coverage of At-Home COVID-19 Tests

“When providing coverage of at-home tests through a direct-to-consumer arrangement, group health plans must cover reasonable shipping costs and sales tax in a manner consistent with other items or products provided by the group health plan via mail order. The direct coverage arrangement does not have to cover every eligible test from every manufacturer.”  Full Article

– Miller Johnson

In COBRA Election Notice Dispute, Court Requires Employer to Provide Retroactive Coverage and Pay Penalties

“The district court found that the employer’s failure to correct the participant’s COBRA eligibility date was arbitrary and capricious. The court reasoned that the employer’s decision to use January 1, 2014, as the end date for the participant’s active-employee coverage was inconsistent with: The COBRA election notice furnished to the participant [and the] employer’s decision to pay for his active-employee coverage through February 28.”  Full Article

– Thomson Reuters Practical Law

Illinois Employers: Are You Complying with the Consumer Coverage Disclosure Act?

“The Illinois Consumer Coverage Disclosure Act (CCDA) requires that Illinois employers provide a disclosure to employees regarding how the employer’s group health plan compares with the essential health benefits under the Illinois benchmark plan. While Illinois takes the position that the law applies to employers with self- insured plans, a court may not necessarily agree if an employer was willing to challenge the law on ERISA preemption grounds.”  Full Article

– Groom Law Group

Washington Legislature Instructs Employers Not to Deduct WA Cares Act Premiums

“Employers should immediately stop any WA Cares payroll deduction. Employers that collected any premium from employees with the first paychecks of 2022 under the then-existing version of the Act have 120 days to refund those premiums to employees in full. Employers should maintain copies of all exemption approval letters for those employees who purchased their own insurance and obtained approved exemptions. Be aware of new exemptions.”  Full Article

– Fisher Phillips