Workplace Wellness Trends to Watch in 2023

“Hybrid work will be here to stay, along with the rise of the four-day work week.. Mental well-being has taken center stage, the labor movement will grow, and well-being is considered a shared responsibility.”  Full Article

– HR Daily Advisor

Employer Health Plans Face Competition for High Quality Doctors

“Employer-sponsored commercial plans, which cover about 157 million people in the US, typically pay higher rates for health-care services than Medicare’s fee-for-service system, which pays for each individual service. But Medicare Advantage, a private plan alternative to traditional Medicare, is rapidly gaining popularity, covering more than 28 million people in 2022.”  Full Article

– Bloomberg Law

Health Savings Account Balances, Contributions, Distributions, and Other Vital Statistics, 2021

“Despite a rebound in out-of-pocket health care spending in 2021, HSA balances increased on average over the course of the year. Accounts that received an employer contribution saw higher total contributions and were more likely to invest. Most accountholders took a distribution in 2021. Age and tenure play a major role in HSA utilization.”  Full Article

– Employee Benefit Research Institute

What the Inflation Reduction Act’s Reforms to Medicare Part D Mean for Prescription Drug Prices

“Much has been written about the act’s individual provisions, but little has been said about how they fit together as a whole. In fact, these seemingly standalone reforms act together to reshape access and affordability of branded prescription drugs under Medicare Part D, while also leaving the door open to further reforms.”  Full Article

– Health Affairs Forefront

Reductions in Force: COBRA and Internal Revenue Code Considerations

“If an employer intends for the COBRA continuation period to run concurrently with the subsidized coverage from the date of the qualifying event, the severance documentation should make this clear, and COBRA notices should be sent accordingly. Otherwise, the employee may mistakenly believe and argue that the COBRA continuation coverage begins when the subsidy ends.”  Full Article

– Walters Kluwer

Court Holds the Health Insurer’s TPA Activities Are Subject to ACA Section 1557

“The court held that under the plain language of Section 1557, the insurer’s TPA activities constitute the operation of a health program or activity. The insurer argued that under the 2020 regulations, Section 1557 does not apply to its TPA activities because those actions are not ‘healthcare activities’ and because it does not receive any federal financial assistance for them, but the court rejected those arguments, explaining that the 2020 regulations are clearly contrary to the statute and appear to be arbitrary, capricious, and contrary to law.”  Full Article

– Thomson Reuters/ EBIA

NEW JERSEY

Signed, Sealed, Delivered: New Jersey Implements Long-Delayed Landmark WARN law

“On January 10, 2023, Governor Philip D. Murphy signed into law S3162/ A4768, which makes the 2020 amendments to NJ WARN effective 90 days from his signature, irrespective of whether a State of Emergency still exists.”  Full Article

– Littler Mendelson P.C.

CALIFORNIA

Challenges and Opportunities in California’s New Pay Transparency Rules

“California’s new pay transparency rules generally fall into three disclosure categories: job-posting requirements, pay scale requests and pay data disclosures. For new hire job postings, employers with 15 or more employees must disclose the reasonably expected pay scale, both for salaried and hourly employees.”  Full Article

– Duane Morris LLP

NEW YORK

New York Requires Employers to Provide Electronic Versions of Mandatory Workplace Postings

“Before the amendment, the law required that certain legal notices be posted conspicuously in the workplace. Now, employers must also make digital versions of the physical notices available, either on the employer’s website or via email.”  Full Article

– Cooley LLP

MARYLAND

Maryland Expands the Scope of Conduct that Constitutes Sexual Harassment in the Workplace

“Recently, Maryland Senate Bill 450 (SB 450) went into effect, revising the definition of sexual harassment in the workplace by changing the standard of sexual harassment from “severe or pervasive” conduct to the “totality of the circumstances” in sexual harassment cases.”  Full Article

– Shulman Rogers

ILLINOIS

Illinois Legislature Passes Paid Leave for All Workers Act

“On January 10, 2023, the Illinois Legislature passed the Paid Leave for All Workers Act (“Act”), which Illinois Governor J.B. Pritzker has also announced his intention to sign. The Act will take effect on January 1, 2024, and it provides nearly all Illinois workers with a minimum of forty (40) hours, or a pro-rated number of hours, of paid leave during a designated 12-month period.”  Full Article

– Thompson Hine LLP

What’s in Store for the Next Four Years? The EEOC’s Strategic Plan

“In its draft EEOC Strategic Plan 2022- 2026 (released November 4, 2022), the agency sets forth 3 overarching goals and 15 identified performance measures for the purpose of achieving those goals.”  Full Article

– Akerman LLP

Wage Transparency Laws Create Labor Cert. Hurdles

“Varying in scope, these laws will likely change the permanent labor certification, or PERM, process required for certain employer-sponsored foreign nationals and will require employers to consider their job advertisement strategy for PERM positions nationally.”  Full Article

– Morgan Lewis & Bockius LLP

An Employee “on Thin Ice” Cannot Insulate Herself with the FMLA

“The Family and Medical Leave Act protects the use of qualifying leave for an employee’s (or their family member’s) serious health condition – but does not insulate the employee from all attendance and performance issues, as the U.S. Court of Appeals for the Eighth Circuit recently reminded employers.”  Full Article

– Shawe Rosenthal LLP

Oh Baby, Baby: New Laws Protecting Pregnant and Breastfeeding Employees

“Effective December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act, also known as The PUMP Act, expanded protections for breastfeeding mothers and, effective June 2023, the Pregnant Workers Fairness Act (PWFA) will provide new protections for pregnant employees.”  Full Article

– Bradley Arant Boult Cummings LLP

A Deeper Dive into FTC’s Proposed Non-Compete Rule

“The Federal Trade Commission (FTC) proposed a new rule that, if made final, would (at least on its face) effectively prohibit non-compete agreements other than in very limited circumstances. The proposed rule, which would supersede all contrary state laws, is remarkable for its sweeping definition of “non-compete clauses” that fall within the ban.”  Full Article

– Jackson Lewis P.C

From Snowmageddon to Snowpocalypse: OSHA Highlights Potential Winter Weather Hazards

“Employers must remember that weather-based hazards exist not only in the heat and humidity of summer, but also in the dead of winter. OSHA has reminded employers of their duties to plan, equip, and train their workers for jobs impacted by winter weather in an effort to “[p]revent injuries, illnesses, and fatalities during winter storms.”  Full Article

– Seyfarth Shaw LLP

NEW JERSEY

Signed, Sealed, Delivered: New Jersey Implements Long-Delayed Landmark WARN law

“On January 10, 2023, Governor Philip D. Murphy signed into law S3162/ A4768, which makes the 2020 amendments to NJ WARN effective 90 days from his signature, irrespective of whether a State of Emergency still exists.”  Full Article

– Littler Mendelson P.C.

CALIFORNIA

Challenges and Opportunities in California’s New Pay Transparency Rules

“California’s new pay transparency rules generally fall into three disclosure categories: job-posting requirements, pay scale requests and pay data disclosures. For new hire job postings, employers with 15 or more employees must disclose the reasonably expected pay scale, both for salaried and hourly employees.”  Full Article

– Duane Morris LLP

NEW YORK

New York Requires Employers to Provide Electronic Versions of Mandatory Workplace Postings

“Before the amendment, the law required that certain legal notices be posted conspicuously in the workplace. Now, employers must also make digital versions of the physical notices available, either on the employer’s website or via email.”  Full Article

– Cooley LLP

MARYLAND

Maryland Expands the Scope of Conduct that Constitutes Sexual Harassment in the Workplace

“Recently, Maryland Senate Bill 450 (SB 450) went into effect, revising the definition of sexual harassment in the workplace by changing the standard of sexual harassment from “severe or pervasive” conduct to the “totality of the circumstances” in sexual harassment cases.”  Full Article

– Shulman Rogers

ILLINOIS

Illinois Legislature Passes Paid Leave for All Workers Act

“On January 10, 2023, the Illinois Legislature passed the Paid Leave for All Workers Act (“Act”), which Illinois Governor J.B. Pritzker has also announced his intention to sign. The Act will take effect on January 1, 2024, and it provides nearly all Illinois workers with a minimum of forty (40) hours, or a pro-rated number of hours, of paid leave during a designated 12-month period.”  Full Article

– Thompson Hine LLP

Paid Leave for Any Reason Coming to Illinois

“On January 10, 2023, the Illinois legislature passed the Paid Leave for All Workers (PLFAW) Act, making Illinois just the third state in the country (after Maine and Nevada) to require private employers to provide earned paid leave to employees to be used for any reason.”  Full Article

– Ogletree Deakins

Reviewing the Welfare Plan Rules Under the Consolidated Appropriations Act, 2021

“New requirements for maintaining an interactive tool for providing health plan participants with provider-specific information about the amount they will need to pay for services (and other useful information) apply, beginning in 2023.”  Full Article

– Ballard Spahr LLP

Fast-Approaching Deadlines for ACA Reporting and Similar State Reporting

“Generally, reporting that relates to health coverage in one calendar year is due early in the following calendar year. With respect to health coverage in 2022, the ACA deadlines range from February 28 to March 31, 2023, and the state deadlines range from January 31, 2023 to April 30, 2023.”  Full Article

– Venable LLP

Looming Deadline for Pharmacy Reporting

“CMS FAQs indicate that plan sponsors can delegate CAA reporting to their vendors, and reporting does not need to be consolidated with one entity. Note that self-funded plans will still retain liability for reporting, but in the case of fully insured plans, liability can be delegated to issuers in writing.”  Full Article

– Winston & Strawn LLP

Year-End Appropriations Legislation Contains Group Health Plan Provisions

“The legislation provides funding to assist states in their enforcement of the CAA, 2021 requirement that health plans and insurers prepare comparative analyses of any nonquantitative treatment limitations on mental health or substance use disorder coverage. The legislation also eliminates the right of self-insured non-federal government health plans to opt out of [MHPAEA] compliance.”  Full Article

– Thomson Reuters/EBIA

We are FAMLI … Colorado Employers Must Withhold  Premiums NOW for 2024 FAMLI Benefits

“Premiums are set to 0.9% of the employee’s wages, with 0.45% paid by the employer and 0.45% paid by the employee. Colorado businesses must begin collecting premiums starting on January 1, 2023. If you are subject to the FAMLI Act and are about to run your first payroll for 2023, you must coordinate with your payroll processor to ensure deductions begin immediately.”  Full Article

– Holland & Hart

Understanding the Difference Between Federal OSHA and State Plans

“Employers need to identify whether their worksites fall under the jurisdiction of OSHA, a State Plan, or a Hybrid Federal- State Plan.”  Full Article

– Nelson Mullins Riley & Scarborough

Simple Possession Pardons Can Complicate Employment Background Checks

“On October 6, 2022, President Biden issued a blanket pardon to all citizens and lawful permanent residents convicted of simple possession of marijuana under the federal Controlled Substances Act.”  Full Article

– Duane Morris

Court Allows GINA Claims to Proceed Against Employer Wellness Program

“In Glenn Williams et al. v. City of Chicago, an Illinois federal district court judge has given the green light for some city employees to proceed with their suit against their employer based on violations of the Genetic Information Nondiscrimination Act (GINA).”  Full Article

– Hall Benefits Law

Trends and Issues Which Can Affect Workers’ Compensation Coverage for Construction Companies

“Recent trends in workers’ compensation coverage suggest that the number of claims are likely to continue to increase, specifically for high-risk industries, like the construction industry. This article explores multiple trends and issues which are likely to impact workers’ compensation insurance for construction companies.”  Full Article

– Saxe Doernberger & Vita

How Should Employers Revise Their Releases, Separation Agreements, and Settlement Agreements in Light of the Speak Out Act?

“The statute limits or prohibits the enforcement of confidentiality or non-disparagement provisions in cases of sexual harassment or assault for such agreements that were entered into “before the dispute arises.” The legislative history suggests that a “dispute arises” once an allegation of sexual assault and/or sexual harassment is made.”  Full Article

– Littler Mendelson

Sexual Misconduct Investigations: Why a Trauma-Informed and Culturally Sensitive Approach Works

““Following the viral #MeToo movement, which gained significant attention from 2017, a series of widespread and high-profile sexual misconduct allegations came to light across industries and corporations. Globally, with the increased media scrutiny, regulators, legislators and companies paid attention. But was that focus short-lived and have organizations implemented an adequate framework to effectively deal with sexual misconduct allegations?”  Full Article

– Ropes & Gray

Several New Group Health Plan Reporting Deadlines are Approaching

“To review all of the major CAA and transparency in coverage (TiC) requirements, you can access a checklist for plan sponsors here and a checklist for plan service providers here. This article summarizes the new CAA and TiC reporting requirements with deadlines that are soon approaching.”  Full Article

– Foley & Lardner LLP

First Circuit Creates New Fiduciary Duty Under ERISA for Insurers Accepting Group Premiums from Employers

“Due to a circuit split, Employers in the 1st, 4th and 8th Circuits should check their benefit plans’ terms to determine who is responsible for enrollment duties and eligibility verification, including determining when to accept premiums from employees.”  Full Article

– Littler

IRS Finalizes Regs Permanently Extending Deadlines for Furnishing ACA Statements to Individuals

“The regulations permanently extend the deadline for furnishing a given year’s Forms 1095-B and 1095-C to individuals until 30 days after January 31 of the immediately following year (or the next business day, if the 30th day falls on a Saturday, Sunday, or legal holiday).”  Full Article

– Thomson Reuters/ EBIA

Senators Murray, Baldwin Introduce Reproductive Health Travel Fund Act

“The Reproductive Health Travel Fund Act would set up a grant program, authorized at $350 million per year for FY23 through FY27. The bill would allow the Treasury Secretary to award grants to eligible entities to pay for travel-related expenses and logistical support for individuals accessing abortion services.”  Full Article

– Committee on Health, Education, Labor and Pensions, U.S. Senate

When Cash Is Not King: Holiday Gifts as Nontaxable ‘De Minimis’ Fringe Benefits

“This post highlights the tax consequences of employer-sponsored holiday perks such as gift cards, turkeys, hams and gift baskets. Under the current tax rules, employers may give infrequent low value gifts of property or services to employees on a tax-free basis. To qualify as a tax-free de minimis fringe benefit, a gift from an employer must be of nominal value, infrequent, and not similar to cash.”  Full Article

– Verrill Dana LLP

Implementing the Family Glitch Fix on ACA Marketplaces

“The Biden administration’s new rule, effective for the 2023 plan year, gives dependents with an offer of unaffordable employer-based family coverage access to marketplace subsidies. But a successful family glitch fix will require marketplaces to implement new infrastructure, conduct significant outreach, and ensure consumers have sufficient enrollment assistance and ample time to sign up for more affordable coverage.”  Full Article

– The Commonwealth Fund

The EEOC is Bulldozing Its Way Through the Construction Industry

“The U.S. Equal Employment Opportunity Commission (EEOC) has a new target—the construction industry. During a public hearing earlier this year, the EEOC accused the construction industry of perpetuating a culture of racism and sexual harassment.”  Full Article

– Venable LLP

Employer WARN-ing: Layoffs Could Trigger WARN Notice Requirements This Time Around

“Studies show that as many as 98% of CEOs are anticipating a global recession in the next 12-18 months, which means that companies have already started focusing on cutting costs and redistributing resources to best position themselves to survive.”  Full Article

– Baker McKenzie LLP

Work Beyond Pay Grade Can Be Grounds for Constructive Termination, Court Rules

“The federal court for the Northern District of California recently declined to dismiss a former Al Jazeera International employee’s constructive wrongful termination claim against the news outlet, finding that requiring an employee to perform tasks more advanced than their pay level, without promotion, could constitute “intolerable” working conditions.”  Full Article

– Proskauer Rose LLP

Federal Restrictions on NDAs for #MeToo Claims Expected to Become Law

“The “Speak Out Act” (H.R 8827), a #MeToo-inspired bill prohibiting pre-dispute nondisclosure and nondisparagement clauses when sexual harassment or assault is alleged, has cleared Congress. Previously, President Biden issued a statement signaling that he strongly supports the bill and will sign. The bill will become effective upon his signature.”  Full Article

– Davis Wright Tremaine

Juries are More Likely to Find Retaliation than Discrimination

“On October 25, 2022, a federal jury in Houston awarded a woman $365,000,000 in punitive damages and over $1,000,000 in compensatory damages, after finding that her employer had terminated her in retaliation for complaining about race discrimination. While this amount may not stand after appeal, the case and the sums at issue are notable.”  Full Article

– Vinson & Elkins LLP

Remote Work May Be A Reasonable Accommodation Where the Employee Has Been, Well, Working Remotely

“In the context of the COVID-19 pandemic, many employees suddenly began working remotely and as we move into a new normal, many employees would like to continue telecommuting. However, from a legal standpoint, employers need not agree to continued remote work unless it is required as a reasonable accommodation under the American with Disabilities Act or analogous state laws. But when can an employer argue that continued remote work is unreasonable?”  Full Article

– Shawe Rosenthal LLP

Significant Parity Cases For Benefits Lawyers to Watch

“Many expect the outcomes of these lawsuits to clarify the standards for a successful parity claim and what remedies plaintiffs can seek under the Parity Act.”  Full Article

– Hall Benefits Law

Plan Administrators May Not Adopt Rationales for Benefit Denials Not Raised During the Claims Review Process

“The Ninth Circuit confirmed that a district court must decide whether the plan administrator’s decision to deny LTD benefits is supported by the record and cannot engage in a new determination of whether the claimant is disabled.”  Full Article

– The Wagner Law Group

HIPAA Compliance and Tracking Technologies for Apps and Webpages

“The guidance generally provides that HIPAA covered entities and business associates: May not impermissibly disclose protected health information (PHI) to tracking technology vendors (TTV). Must ensure that they disclose PHI only as expressly permitted or required by the HIPAA Privacy Rule.”  Full Article

– Thomson Reuters Practical Law

SCOTUS Denies Review and Leaves Seattle’s ‘Play-or Play’ Ordinance Intact

“The Supreme Court declined to review whether federal law preempts a Seattle Ordinance mandating that large hotels offer their employees health insurance coverage or increased pay. This left the Ninth Circuit’s ruling, which found that the particular ordinance was not preempted, as the last word on the issue (at least for now).”  Full Article

– Proskauer

Health Plans and Marijuana: What to Know Now

“On November 16, the U.S. Senate passed Medical Marijuana and Cannabidiol Research Act [HR 8454], which was passed by the House of Representatives in July. News reports have predicted that Biden will sign the bill. The bill doesn’t specifically address health plan coverage of medical marijuana, but the processes it sets in motion could lead to greater clarity on the issue.”  Full Article

– International Foundation of Employee Benefits

I Want A New Drug… Prescription Drug Data Collection Reporting is Due December 27th

“The Departments will not take enforcement action against the plan sponsor if the average monthly premium paid by employers and employees (Columns E and F) is not included on the D1 for the 2020 and 2021 reporting period, as long as the information is provided for 2022 and beyond. However, no such relief exists for reporting the premium equivalent (Column I).”  Full Article

– Holland & Hart LLP