The RISQ RECAP:
October 30th – November 3rd, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Alliance of 40 Countries to Vow Not to Pay Ransom to Cybercriminals “Forty countries in a U.S.-led alliance plan to sign a pledge never to pay ransom to cybercriminals and to work toward eliminating the hackers’ funding mechanism, a senior White House official said on Tuesday. The International Counter Ransomware Initiative comes as the number of ransomware attacks grows worldwide. The United States is by far the worst hit, with 46% of such attacks, Anne Neuberger, U.S. deputy national security adviser in the Biden administration for cyber and emerging technologies, told reporters on a virtual briefing.” Full Article – Insurance Journal
Companies May Be Employers of Contract, Franchise Workers Under US Labor Rule “A U.S. labor board on Oct. 26 issued a final rule making it easier for workers and unions to hold companies liable for labor law violations by their franchisees and contractors, reviving an Obama-era standard heavily criticized by trade groups. The rule from the National Labor Relations Board (NLRB) will treat companies as so-called “joint employers” when they have control, even if it is indirect or not exercised, over essential terms and conditions of employment such as pay, scheduling, hiring and firing, and supervision.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Union Charge and Election Petition Filings Continue to Climb “Unions continue to dominate headlines, as the UAW strike persists and the union saga at Starbucks continues to unfold. Perhaps unsurprisingly, based on that, the number of charges alleging labor law violations and election petitions filed by unions with the NLRB still are on the rise as well.” Full Article – Barnes & Thornburg LLP
Senate Confirms New EEOC General Counsel as New Case Filings Climb “The Senate has confirmed Karla Gilbride as the EEOC’s General Counsel, following an almost two and a half year vacancy. As GC, Gilbride is poised to make her mark on the EEOC’s litigation program by directing and advocating for EEOC’s litigators, both internally and externally.” Full Article – Seyfarth Shaw LLP
Is Your HR Department Aware of the Latest EEOC Priorities? “Periodically, the EEOC (Equal Employment Opportunity Commission) lets us know what to watch out for. On September 21, the EEOC released its Strategic Enforcement Plan for years 2024-2028 (“SEP”), which tells us where the federal government is prioritizing its employment dollars.” Full Article – Dickinson Wright
NLRB Returns to a More Expansive Joint Standard “Today, October 26, 2023, the National Labor Relations Board issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule establishing the current test for determining whether two entities are joint employers. This new rule will result in more findings that two entities are joint employers.” Full Article – Shawe Rosenthal LLP
Mark Your Calendars: EEO-1 Reporting Season is Almost Here! “Ready or not, reporting season is right around the corner. The Equal Employment Opportunity Commission (EEOC) recently announced that the 2022 EEO-Component 1 data collection will open on Tuesday, October 31, 2023, and the deadline for employers to file is Tuesday, December 5, 2023. In completing the EEO-1, all covered private employers and federal contractors have a mandatory legal obligation to submit and certify their workforce demographic data.” Full Article – Venable LLP
Religious Accommodations, Part Deux: Is the Religious Belief Sincere? “In Part One of this two-part bulletin, we explored the expansive meaning of religious beliefs entitled to an accommodation under Title VII and the reluctance of courts to second guess whether a belief is “religious” in nature. Even though the religious nature of a belief may not be an appropriate topic for inquiry, it is appropriate and necessary to differentiate between beliefs that are sincerely held as a matter of faith and those that are animated by a motive of fraud or deception.” Full Article – Constangy, Brooks, Smith & Prophete LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
CALIFORNIA
California Passes New Law Mandating Workplace Violence Prevention Plan for Employers
“On September 30, 2023, Governor Gavin Newsom signed SB 553 into law, establishing a new written Workplace Violence Prevention Plan (“WVPP”) requirement for nearly all California employers.” Full Article
– Sheppard Mullin Richter & Hampton LLP
MASSACHUSETTS
Massachusetts Amends Paid Family and Medical Leave Law
“As of November 1, 2023, the Massachusetts Paid Family and Medical Leave (PFML) law will permit employees to supplement their PFML benefits using accrued paid time off (PTO), such as sick or vacation pay. Employers cannot require that employees use their accrued PTO while receiving PFML benefits but must permit employees to do so.” Full Article
– Morgan, Lewis & Bockius LLP
ILLINOIS
New Illinois Law Mandates Certain Employers Offer Pre-Tax Commuter Benefits Starting January 1, 2024
“Open enrollment season is upon us, but employers who employ a substantial number of employees in Illinois may have a surprise in a new benefit that must be offered. Illinois recently adopted the Transportation Benefits Program Act (HB 2068; P.A. 103-291) (the “Act”) which aims to promote the commuter benefits available to employees who use or may use public transportation to commute to and from work.” Full Article
– Michael Best & Friedrich LLP
COLORADO
Legislative Update: Colorado Proposes New Rules for Tipped Workers, and More State and Local Efforts to Eliminate the Tip Credits
“Proposed New Rules Under Colorado’s Overtime & Minimum Pay Standards Order Would Narrow Employers’ Use of the Tip Credit and Tip Pools.” Full Article
– Seyfarth Shaw LLP
NEW YORK
New York Narrows the Scope of Employee “Invention Assignment” Provisions
“On September 15, New York enacted Labor Law Section 203-f, limiting the enforceability of invention assignment provisions in employment agreements. Under the new law, employers do not have rights to any employee inventions created on the employee’s own time and without the use of employer resources or trade secrets.” Full Article
– Troutman Pepper Hamilton Sanders LLP
- Published in Blog
Responding to the EEOC’s Increased Focus on Mental Health Discrimination
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
As society’s understanding of mental health continues to grow, so has government acknowledgment and efforts to protect workers with such conditions. Workers who have a mental health condition, such as anxiety or depression, are often protected against discrimination and harassment at work because of the condition. They may also have workplace privacy rights and a legal right to reasonable accommodations to help them perform the essential functions of their jobs.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the Americans with Disabilities Act (ADA), a federal law that protects individuals with disabilities. In most cases, individuals with diagnosed mental health conditions are covered under the ADA.
This article highlights mental health conditions, outlines the EEOC’s enforcement plans and offers ADA compliance guidance for employers.
Mental Health and the ADA
The ADA only applies to employers with 15 or more employees. The law defines “disability” as a physical or mental impairment substantially limiting one or more major life activities. When qualified job applicants or employees have a mental health condition meeting those criteria, they have workplace rights under the ADA. The ADA Amendments Act of 2008 broadened the definition of disability to provide legal protections against employment discrimination for more individuals with disabilities, including people with psychiatric disabilities. “Psychiatric disability” and “mental illness” are often used interchangeably. The term “mental illness” is typically used in a medical context to refer to a wide range of emotional and mental health conditions. In contrast, “psychiatric disability” is typically used in a legal or policy context to refer to impairments covered under the ADA.
The National Institute of Mental Health estimates that about 18% of U.S. workers have a mental health condition in any given month. This means that psychiatric disability is one of the most common types of disability covered under the ADA. Since mental health conditions can substantially limit brain function, individuals with such disorders will usually be determined to have an ADA-covered disability. The following mental health conditions may qualify under the ADA:
- Attention-deficit/hyperactivity disorder (ADHD)
- Bipolar disorder
- Schizophrenia
- Generalized anxiety disorder
- Major depression
- Obsessive-compulsive disorder (OCD)
- Panic disorders
- Personality disorders
- Post-traumatic stress disorder (PTSD)
Examples of reasonable accommodations for an employee with a mental disability may include:
- Allowing the employee to telework
- Allowing more frequent breaks
- Alternating supervisor methods (e.g., providing written instructions and providing more frequent or different reminders of tasks and due dates)
- Changing the employee’s work schedule
- Changing the employee’s work location (e.g., moving to a quieter space or allowing the use of a white noise machine or headphones)
- Reassigning to a vacant position
- Permitting a leave of absence under the Family and Medical Leave Act, state law or company policy
EEOC Enforcement Plans
In fiscal year (FY) 2021, employee allegations of unlawful discrimination based on mental health conditions accounted for about 30% of all ADA-related EEOC-filed charges. That figure significantly increased from the 20% reported in FY 2010. Anxiety and PTSD are the leading conditions contributing to this trend.
The EEOC recently released its strategic enforcement plan (SEP) for FYs 2024-28, emphasizing a greater focus on discrimination against vulnerable populations, including employees with mental health disorders. The plan aims to focus and coordinate the agency’s work to advance equal employment opportunities sustainably.
Employer Guidance
Supporting employees battling mental health conditions is not only important for compliance reasons. While organizations seek to avoid liability under the ADA, support and guidance can help foster an inclusive environment for employees with mental health conditions.
Consider the following employer strategies to stay compliant and create a supportive culture:
- Monitor EEOC compliance. Organizations should stay current on all EEOC updates and consult local legal counsel before making any workplace changes. Employers can be proactive with compliance responsibilities by setting calendar reminders well before deadlines and meeting regularly to review compliance with EEOC guidance.
- Review workplace policies. Various workplace policies have the potential to generate discrimination claims. Employers can review and assess policies such as background-check practices, pre- and post-hire personality or behavioral tests, inequitable leave policies and unnecessary physical requirements.
- Review compensation practices. When reviewing their compensation practices, organizations may discover disparities that adversely affect employees based on certain protected characteristics. With a clearer picture, employers can then address those disparities to ensure equal opportunity.
- Train managers. Supervisors and managers can be trained to identify and respond to requests for reasonable accommodation to ensure decision-making isn’t based on outdated biases or misunderstandings about mental health.
- Train all employees. Mental health awareness can help fight the stigma often associated with conditions. Open and honest conversations about mental health can help foster an inclusive work environment. Training can help increase empathy and understanding to ensure all employees feel valued, respected and part of the team.
Summary
As outlined in the EEOC’s latest SEP, the federal government continues to crack down on organizations that discriminate against workers with mental health conditions. As such, employers should continually monitor for EEOC updates and review applicable workplace policies and practices that could cause a discrimination claim. Aside from compliance, mental health awareness is critical for fostering a successful and inclusive workplace environment.
Contact us today for additional workplace resources.
- Published in Blog
The RISQ RECAP:
October 23rd – October 27th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
‘Forever Chemical’ Bans Face Hard Truth: Many Can’t Be Replaced “As lawmakers around the world weigh bans of cancer-linked “forever chemicals,” many manufacturers are pushing back, saying there often is no substitute for the compounds. Minnesota and Maine have passed legislation to effectively outlaw the use of per- and polyfluoroalkyl substances, or PFAS, in nearly all products by the early 2030s. Dozens of other states are also considering curbing their use. And the European Union’s Chemical Agency has proposed a widespread ban.” Full Article – Insurance Journal
Governments and Firms Should Spend More on AI Safety, Say Top Researchers “Artificial intelligence companies and governments should allocate at least one third of their AI research and development funding to ensuring the safety and ethical use of the systems, top AI researchers said in a paper on Tuesday. The paper, issued a week before the international AI Safety Summit in London, lists measures that governments and companies should take to address AI risks.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
What Are the Health Plan ID Card Transparency Requirements? (PDF) “For plan years beginning on or after January 1, 2022, any physical or electronic plan or insurance identification card issued to group health plan participants or beneficiaries must clearly state … [1] any applicable deductible; [2] any applicable out-of-pocket maximum limitation; and [3] a telephone number and internet website address through which the individual may seek consumer- assistance information.” Full Article – Thomson Reuters / EBIA
Text of IRS Notice 2023-70: Insured and Self-Insured Health Plans Adjusted Applicable Dollar Amount for PCORI Fee Imposed by Sections 4375 and 4376 (PDF) “The fee imposed by sections 4375 and 4376 helps to fund the Patient-Centered Outcomes Research Trust Fund (PCORTF) and is calculated using the average number of lives covered under the policy or plan and the applicable dollar amount for that policy year or plan year.” Full Article – Internal Revenue Service (IRS)
Fiduciary Governance: HIPAA and Cybersecurity Best Practices “Plans considered ‘covered entities’ under HIPAA are subject to privacy and security rules governing individually identifiable health information. Plan sponsors must implement their plans’ physical, administrative, and technical safeguards to protect e-PHI against cyberthreats. Fiduciaries should not stop at HIPAA-covered health data but should equally safeguard any personally identifiable information of employees in connection with their welfare benefit plans.” Full Article – Nixon Peabody
10 Important Issues for Employers During the 2024 Open Enrollment Season “[1] Affordability of group health plan [2] HDHP/HSA limits [3] Updated CHIP notice [4] HIPAA notice of privacy practices [5] Summary of Benefits and Coverage [6] Annual compliance notices. [7] Wellness program notices [8] Life insurance evidence of insurability [9] Premium payments for fixed indemnity/specified disease insurance [10] Coordinate with insurer/TPA on NQTL comparative analysis and gag clause prohibition compliance attestation.” Full Article – Dickinson Wright
Transparency in Coverage Update: Status of Current Enforcement and Future Rulemaking “All covered plans will need to move ahead with publishing machine-readable files with prescription drug cost information, but future guidance will be issued on the implementation timeline for those plans that have relied on the enforcement delay. Also, plans that use alternative reimbursement arrangements for in-network providers will no longer be able to use the safe harbor that was previously available for reporting in-network rates.” Full Article – Slevin & Hart, P.C.
New Illinois Law Mandates Certain Employers Offer Pre-Tax Commuter Benefits Starting January 1 “Beginning January 1, 2024, a covered employer must make available a pre-tax commuter benefit to covered employees. Covered employees are those employees who work an average of at least 35 hours per week. The Act applies to covered employers with at least 50 covered employees in one of more of [certain specified] locations. Illinois is not the first jurisdiction to enact such a law; employers with multi-state operations should confirm which states and municipalities in which they operate may require the adoption of the same or similar type of program.” Full Article – Michael Best & Friedrich LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
CALIFORNIA
Employees in California Get a Bump in Paid Sick Leave
“Governor Gavin Newsom approved Senate Bill No. 616 (SB 616), which significantly increases the amount of paid sick leave required under California’s existing paid sick leave law. Employees are still entitled to accrue paid sick leave at a rate of not less than one hour for every 30 hours worked, but under SB 616, the accrual cap has been modified from six days or 48 hours to 10 days or 80 hours.” Full Article
– Snell & Willmer LLP
MASSACHUSETTS
Important Change to Massachusetts PFML Law: Employees May Supplement (Top Off) PFML Benefits with Vacation, PTO and Sick Time
“Effective November 1, 2023, the Massachusetts Paid Family and Medical Leave (PFML) law will allow employees to supplement (i.e. “top off”) benefits received from the Commonwealth of Massachusetts with any available accrued paid leave (e.g., sick time, vacation, PTO, personal time, etc.).” Full Article
– Seyfarth Shaw LLP
ILLINOIS
Illinois Passes Sweeping Amendments to Day and Temporary Labor Services Act, Affecting Staffing Agencies and Companies That Contract with Them
“Governor Jay Pritzker signed into law House Bill 2862, approving sweeping amendments to the Day and Temporary Labor Services Act (“DTLSA” or the “Act”). Since then, the Illinois Department of Labor (IDOL) has issued administrative regulations and proposed rules that are currently working their way through the notice-and-comment process.” Full Article
– Taft Stettinius & Hollister LLP
CONNECTICUT
Taft Stettinius & Hollister LLP Connecticut Stifles Employees’ Access to Their Earned Wages
“Earned Wage Access (or EWA) programs are popular programs that allow employees to access their salary or wages that have already been earned, prior to the scheduled payroll date. Many argue that these beneficial programs are not truly ‘loans’ because employees are accessing their own money without paying the high fees charged by payday lenders.” Full Article
– K & L Gates LLP
NEW YORK
New York State Limits Employers’ Ability to Access Social Media
“Beginning in March 2024, New York employers will be restricted from accessing employee social media accounts. The new law, A.386, amends New York’s labor law and will restrict employers from requesting, requiring, or coercing an employee or applicant for employment to provide their username and password to social media websites.” Full Article
– Gordon Rees Scully Mansukhani LLP
- Published in Blog
Human Resources Developments and Considerations for 2024
Dec 14th, 2023
December 14th, 2023 at 10 AM AKDT
Description | This webinar will review impactful human resources compliance related topics and developments from 2023 and look forward to the traditional and evolving HR areas employers should be prepared to navigate in 2024.
Presenter | Craig Weller, JD
Here is the registration link | Register HERE
- Published in Events
The RISQ RECAP:
October 16th – October 20th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Private Health Data Still Being Exposed to Big Tech, Report Says “Despite recent efforts to address the issue, medical-related websites continue to be mined for data including personal medical information, in an apparent violation of patients’ privacy rights, according to a new study. Some of the most common tracking pixels were from Alphabet Inc.’s Google, Microsoft Corp., Meta Platforms Inc. and ByteDance, the parent company of TikTok, according to a report by the cybersecurity company Feroot Security.” Full Article – Insurance Journal
US Plans to Push Other Countries Not to Pay Hacker Ransoms “The US is pushing a group of governments to publicly commit to not make ransom payments to hackers ahead of an annual meeting of more than 45 nations in Washington later this month. Anne Neuberger, deputy national security adviser, told Bloomberg News that she is “incredibly hopeful” about enlisting support for such a statement but acknowledged it’s a “hard policy decision.” If members can’t agree to the statement in advance of the meeting, then it will be included as a discussion point, she said.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Cybersecurity Awareness Dos and Don’ts Refresher “As we have adjusted to a combination of hybrid, in-person and remote work conditions, bad actors continue to exploit the vulnerabilities associated with our work and home environments.” Full Article – Katten Muchin Rosenman LLP
Top Three Labor Trends to Watch for in Q4 2023 “More companies will be pulled into union organizing campaigns, contract negotiations and National Labor Relations Board (NLRB) proceedings involving their contractors when the NLRB issues a new joint employer rule.” Full Article – McDermott Will & Emery
$2.49 Million Verdict Underscores Expansive USERRA Protections “A little more than a year after U.S. Army veteran Le Roy Torres kept his case alive at the U.S. Supreme Court, a Texas jury voted unanimously to award him $2.49 million on the claim that his former employer, the Texas Department of Public Safety, failed to accommodate Torres’ service-connected disabilities.” Full Article – Littler Mendelson P.C.
Incentives to Improve Employee Performance, Attendance, Commitment “In his recent book, Mixed Signals: How Incentives Really Work, economist and University of California-San Diego professor Uri Gneezy examines how incentives of various kinds can and do modify behavior in a variety of contexts. Employment is one of the contexts in which incentives have particular application.” Full Article – Constangy, Brooks, Smith & Prophete LLP
EEOC Issues Long-Awaited Guidance on Harassment in the Modern Workplace “The U.S. Equal Employment Opportunity Commission issued long-awaited enforcement guidance on workplace harassment. The ‘Proposed Enforcement Guidance on Harassment in the Workplace,’ published in the Federal Register on October 2, 2023, advises employers on handling new workplace realties, including LGBTQ rights, online misconduct, abortion, and a number of different types of harassment.” Full Article – Sheppard, Mullin, Richter & Hampton LLP
Former Employee Challenges Employer’s Diversity Program on Religious Discrimination Grounds “Courtney Rogers, a former recruiter for Compass Group USA, recently filed a lawsuit against the company in the U.S. District Court for the Southern District of California. Rogers argues that Compass violated Title VII of the Civil Rights Act of 1964 after it terminated her for requesting a religious accommodation to avoid working on a corporate diversity, equity, and inclusion (DE&I) program that excluded white male employees.” Full Article – Hall Benefits Law
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
CALIFORNIA
Employees in California Get a Bump in Paid Sick Leave
“Governor Gavin Newsom approved Senate Bill No. 616 (SB 616), which significantly increases the amount of paid sick leave required under California’s existing paid sick leave law. Employees are still entitled to accrue paid sick leave at a rate of not less than one hour for every 30 hours worked, but under SB 616, the accrual cap has been modified from six days or 48 hours to 10 days or 80 hours.” Full Article
– Snell & Willmer LLP
MASSACHUSETTS
Important Change to Massachusetts PFML Law: Employees May Supplement (Top Off) PFML Benefits with Vacation, PTO and Sick Time
“Effective November 1, 2023, the Massachusetts Paid Family and Medical Leave (PFML) law will allow employees to supplement (i.e. “top off”) benefits received from the Commonwealth of Massachusetts with any available accrued paid leave (e.g., sick time, vacation, PTO, personal time, etc.).” Full Article
– Seyfarth Shaw LLP
ILLINOIS
Illinois Passes Sweeping Amendments to Day and Temporary Labor Services Act, Affecting Staffing Agencies and Companies That Contract with Them
“Governor Jay Pritzker signed into law House Bill 2862, approving sweeping amendments to the Day and Temporary Labor Services Act (“DTLSA” or the “Act”). Since then, the Illinois Department of Labor (IDOL) has issued administrative regulations and proposed rules that are currently working their way through the notice-and-comment process.” Full Article
– Taft Stettinius & Hollister LLP
CONNECTICUT
Taft Stettinius & Hollister LLP Connecticut Stifles Employees’ Access to Their Earned Wages
“Earned Wage Access (or EWA) programs are popular programs that allow employees to access their salary or wages that have already been earned, prior to the scheduled payroll date. Many argue that these beneficial programs are not truly ‘loans’ because employees are accessing their own money without paying the high fees charged by payday lenders.” Full Article
– K & L Gates LLP
NEW YORK
New York State Limits Employers’ Ability to Access Social Media
“Beginning in March 2024, New York employers will be restricted from accessing employee social media accounts. The new law, A.386, amends New York’s labor law and will restrict employers from requesting, requiring, or coercing an employee or applicant for employment to provide their username and password to social media websites.” Full Article
– Gordon Rees Scully Mansukhani LLP
- Published in Blog
The RISQ RECAP:
October 9th – October 13th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Hacker Puts 23andMe User Data Up for Sale on the Internet “An anonymous hacker is claiming to be selling “millions” of genetic profiles cobbled together from hijacked 23andMe customer accounts. The seller suggested the profiles, which include email addresses, photos, gender, date of birth and DNA ancestry, could be used to target users based on their ethnicity. 23andMe Holding Co., a genetics test kit company that offers ancestry and health reports by analyzing a person’s saliva, confirmed Friday that genuine customer data was for sale on a hacker forum.” Full Article – Insurance Journal
Summit: Cannabis Data A Key to Growing, Retaining Client Base “Data and technology are becoming more important to the cannabis market as it matures, and insurance professionals specializing in the segment would benefit from keeping that at top of mind. A group of experts gathered during Insurance Journal’s Insuring Cannabis Summit to discuss emerging opportunities and notable insurance focus areas. The panel was hosted by Charles Pyfrom, chief marketing officer at CannGen Insurance Services. Panelists shared their perspectives on data implementation and the importance of maintaining close contact with clients throughout policy lifecycles.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Agencies Press Play on Prescription Drug Machine-Readable File Requirement “Subject to the implementation timeline set to be announced by the Departments in future guidance, plan sponsors will need to work with service providers to put together a game plan to gather the required information and post the prescription drug machine-readable file.” Full Article – Proskauer Rose LLP
Fiduciary Governance: Evaluating, Selecting, and Contracting with Pharmacy Benefit Managers “The authors posit that the lack of compliance monitoring is not for lack of interest but rather because of the complexity of the landscape to which the regulation applies. As such, in this piece, we lay the groundwork for compliance studies by outlining the agencies responsible for enforcing compliance with the TiC rule, delineating the universe of entities that are required to comply with it, and discussing how compliance might be assessed.” Full Article – Nixon Peabody
The ERISA Edit: More Coverage Mandates and TiC Enforcement Ahead “Current agency guidance interpreting statutory and regulatory requirements states that preventive products that are generally available without a prescription, such as folic acid, contraception sponges, and spermicides, must be covered without co- sharing only when such products are prescribed by a healthcare provider. The September 29 RFI signals that the Departments are considering future rulemaking or new guidance that would eliminate the prescription requirement.” Full Article – Miller & Chevalier Chartered
Court Ruling Calls Into Question Whether Plans and Issuers Can Exclude Coupons Towards the MOOP “The 2021 Notice of Benefit and Payment Parameters (2021 NBPP) permitted (but did not require) plans and issuers to count direct support offered by drug manufacturers for prescription drugs toward the ACA’s annual cost-sharing limit (MOOP). The court concluded that the 2021 NBPP interpretation of ‘cost sharing’ conflicts with the statutory and regulation definition of ‘cost sharing’ under the ACA and remanded the amendments back to HHS for further consideration.” Full Article – Groom Law Group
Biden-Harris Administration Moves Forward with Medicare Drug Price Negotiations to Lower Prescription Drug Costs for People with Medicare “All 10 drug companies whose drugs were selected for price negotiation with Medicare for the first cycle of the program have decided to participate in those negotiations. These selected drugs accounted for $50.5 billion in total Part D gross covered prescription drug costs, or about 20%, of total Part D gross covered prescription drug costs between June 1, 2022 and May 31, 2023. Medicare enrollees taking the 10 drugs covered under Part D selected for negotiation paid a total of $3.4 billion in out-of-pocket costs in 2022 for these drugs.” Full Article – U.S. Department of Health and Human Services
The Proposed MHPAEA Regulations’ ‘Meaning of Terms’ Part Two: Processes, Strategies, Evidentiary Standards and Other Factors “The 2013 final MHPAEA regulations use — but do not define — the terms, ‘processes,’ ‘strategies,’ ‘evidentiary standards’ or ‘other factors.’ The Departments now propose to define these other terms. Under the proposal, ‘processes’ relate to the application of an NQTL, while ”strategies” relate to their design. Evidentiary standards are not themselves considered factors; rather, they are considered or relied upon in designing or applying a factor. This invites the question: What happens when a plan or issuer only relies upon a single evidentiary standard to design or apply an NQTL?” Full Article – McDermott, Will & Emery
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
NEW YORK
New York State Department of Labor Issues Proposed Regulations on Salary Transparency Law
“On September 13, 2023, the New York State Department of Labor published proposed regulations on the state’s salary transparency statute that took effect on September 17, 2023.” Full Article
– Proskauer Rose LLP
CALIFORNIA
California Further Extends the Ban on Employers Entering Noncompete Agreements Starting in 2024
“On Sept. 1, 2023, California Governor Gavin Newsom signed Senate Bill (SB) 699 into law with at least two significant additions to Section 16600 of the California Business and Professions Code (BPC). First, SB 699 extends the reach of California’s restrictions on noncompete agreements to contracts signed out of state. Second, SB 699 creates a private right of action for employees whose agreements include restrictive covenants. SB 699 will go into effect on Jan. 1, 2024.” Full Article
– Greenberg Traurig LLP
RHODE ISLAND
Rhode Island’s Amended Payment of Wages Act Now Imposes Felony Penalties on Employers
“Rhode Island law taking effect January 1, 2024 will impose criminal penalties on employers for knowing and willful wage and hour violations. The law also includes harsher penalties for employers generally, and those in the construction industry specifically, that misclassify workers as independent contractors.” Full Article
– Littler Mendelson P.C.
NEW JERSEY
Watch Out New York—New Jersey Wants Its Taxes Too
“July 21, 2023, New Jersey Governor Phil Murphy signed Assembly Bill No. S3128/A4694 into law, which implements an aggressive tax treatment of nonresidents who work for New Jersey employers. The law essentially adopts the Convenience of the Employer rule.” Full Article
– Littler Mendelson P.C.
GEORGIA
GA Update: Voting Leave, No Sunset on Kin Care
“Georgia’s voting leave law changed effective July 1. First, the Georgia statute was amended to add “advance in-person voting” (early voting) to the types of voting for which employers must allow unpaid time off.” Full Article
– Constangy, Brooks Smith & Prophete LLP
- Published in Blog
The RISQ RECAP:
October 2nd – October 6th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Report: Pilot Error, Training Issues Factors in Alaska Crash That Killed Czech Billionaire “The probable cause of a heli-skiing crash in Alaska in 2021 that killed a Czech billionaire and four others was a failure by the pilot to adequately respond to whiteout conditions, a federal accident report concluded. The report from the National Transportation Safety Board found that an “inadequate pilot training program” by the helicopter operator and “insufficient oversight” by a Federal Aviation Administration inspector were contributing factors.” Full Article – Insurance Journal
A Hidden Climate Danger Threatens Coastal Communities With Toxic Chemicals “A little-known climate threat lurks under our feet: rising groundwater that could release toxic chemicals from more than 132,000 contaminated sites in coastal areas of the US. In a first of its kind study, researchers estimated the number of polluted industrial sites and mapped them to areas likely to experience groundwater inundation due to rising seas. “A lot of people don’t realize that the ocean actually extends under the land in coastal areas, so as the ocean rises, it pushes up the groundwater toward the surface,” said Kristina Hill, an associate professor at the University of California at Berkeley and the lead author of the paper, which was published last week in the journal Earth’s Future.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
EEOC, NLRB and DOL Shutdown Contingency Plans—The 2023 Edition “Once again we are poised on the brink of another possible federal government shutdown, and employers may be wondering how it may impact them.” Full Article – Shawe Rosenthal LLP
Significant Changes to US Overtime Pay Requirements on the Horizon “On September 8, 2023, the Department of Labor announced publication of a Notice of Proposed Rulemaking Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.” Full Article – Baker & McKenzie LLP
OSHA’s Walk-Around Proposal Could Open Workplace Inspections to Outsiders “The Occupational Safety and Health Administration (‘OSHA’) recently announced a Notice of Proposed Rulemaking that would make it easier for non-employee representatives to participate in worksite inspections.” Full Article – Hunton Andrews Kurth LLP
Federal OSHA Announces Inspection Initiative Focusing on Crystalline Silica in the Stone Fabrication Industry “The U.S. Department of Labor recently announced that OSHA has launched a new initiative focused on enhancing enforcement and providing compliance assistance to protect workers from the hazards of silica.” Full Article – Seyfarth Shaw LLP
Dismantling Gender Walls in the Construction Industry “According to the national construction industry trade association Associated Builders and Contractors, construction labor demands are high. The construction business pays well and offers great opportunities for progression. The traditionally male-dominated industry has struggled, however, to convince women to join its workforce.” Full Article – Jackson Lewis P.C.
Hair, Beards, and the Invigorated Duty to Accommodate Religious Practices “Hair. In some religions it is considered a sacred gift from God that should not be cut. In other religions, it must be styled, covered, or cut in particular ways. These religious practices may result in employees’ requesting relief from various employment policies. If that happens, the request must be evaluated under the newly invigorated “undue hardship” test outlined in the Supreme Court’s Groff v DeJoy decision. Failure to do so is likely to lead to an unpleasant outcome for the employer.” Full Article – Constangy, Brooks, Smith & Prophete LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
NEW YORK
New York State Department of Labor Issues Proposed Regulations on Salary Transparency Law
“On September 13, 2023, the New York State Department of Labor published proposed regulations on the state’s salary transparency statute that took effect on September 17, 2023.” Full Article
– Proskauer Rose LLP
CALIFORNIA
California Further Extends the Ban on Employers Entering Noncompete Agreements Starting in 2024
“On Sept. 1, 2023, California Governor Gavin Newsom signed Senate Bill (SB) 699 into law with at least two significant additions to Section 16600 of the California Business and Professions Code (BPC). First, SB 699 extends the reach of California’s restrictions on noncompete agreements to contracts signed out of state. Second, SB 699 creates a private right of action for employees whose agreements include restrictive covenants. SB 699 will go into effect on Jan. 1, 2024.” Full Article
– Greenberg Traurig LLP
RHODE ISLAND
Rhode Island’s Amended Payment of Wages Act Now Imposes Felony Penalties on Employers
“Rhode Island law taking effect January 1, 2024 will impose criminal penalties on employers for knowing and willful wage and hour violations. The law also includes harsher penalties for employers generally, and those in the construction industry specifically, that misclassify workers as independent contractors.” Full Article
– Littler Mendelson P.C.
NEW JERSEY
Watch Out New York—New Jersey Wants Its Taxes Too
“July 21, 2023, New Jersey Governor Phil Murphy signed Assembly Bill No. S3128/A4694 into law, which implements an aggressive tax treatment of nonresidents who work for New Jersey employers. The law essentially adopts the Convenience of the Employer rule.” Full Article
– Littler Mendelson P.C.
GEORGIA
GA Update: Voting Leave, No Sunset on Kin Care
“Georgia’s voting leave law changed effective July 1. First, the Georgia statute was amended to add “advance in-person voting” (early voting) to the types of voting for which employers must allow unpaid time off.” Full Article
– Constangy, Brooks Smith & Prophete LLP
- Published in Blog
The RISQ RECAP:
September 25th – September 29th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Tech Startups in US, France, Germany Help in Fight Against Wildfires “This year has been a challenging one for Phil Schneider, who hasn’t seen wildfire behavior like this in his 47-year firefighting career. Blazes raged through more than 2,000 acres of wildland in recent months in his county deep in the woods of Oregon, where a wet climate once made forest fires unthinkable. That’s an increasingly common scene around the world — from Canada to Greece, global warming has helped fuel larger and more destructive blazes, pushing firefighting services to the brink. But Schneider has a new recruit to help manage the growing risks: artificial intelligence.” Full Article – Insurance Journal
US Home Insurance ‘Bubble’ Closer to Popping as Climate Risks Mount: Report “Home insurance costs that have soared in much of the US may get even higher. Tens of millions of properties around the country are insured at prices that haven’t caught up with the danger of hurricanes, wildfires and floods, according to a new report from the First Street Foundation, a nonprofit that works to define and communicate risks posed by climate change. First Street estimates that 39 million US homes are insured at artificially suppressed prices compared with the risk they actually face. Of those, nearly 6.8 million homes are covered by state-backed “insurer of last resort” policies.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Save Billions or Stick with Humira? Drug Brokers Steer Americans to the More Costly Choice “For real competition to take hold, the big pharmacy benefit managers, or PBMs, the companies that negotiate prices and set the prescription drug menu for 80% of insured patients in the United States, would have to position the new drugs favorably in health plans. They haven’t, though the logic for doing so seems plain.” Full Article – KFF Health News
COBRA Notice Litigation Update: Recent Decision Signals Some Skepticism of Plaintiff’s Claims “Despite the sheer volume of COBRA notice cases, courts have issued relatively little guidance on the merits of the plaintiffs’ claims. Based on the decisions and proceedings to date, this article describes some trends indicating that, although COBRA notice litigation may present a risk for plan sponsors, there are also multiple potential merits and class-based defenses available to defendants.” Full Article – Groom Law Group
Managing Increasing Health and Welfare Fiduciary Risks “Take action now to stave off the pending surge in class action litigation against health and welfare plan sponsors and fiduciaries. Plaintiffs’ firms are actively looking for potential employee plaintiffs who participate in group health plans. Manage risks by establishing a health and welfare plan fiduciary committee to conduct formal, well- documented processes to monitor health plan activities and service provider performance and fees.” Full Article – Nixon Peabody
Gag Clause Attestations Due December 31, 2023 “Under the Consolidated Appropriations Act of 2021 (CAA), group health plans and health insurance issuers are prohibited from entering into agreements with service providers restricting certain information that the plan may make available to another party. This information includes [1] provider- specific cost or quality information sharing with plan members or [2] claims data (including individual claims pricing) sharing with plan sponsors (and their service providers).” Full Article – Graydon Head & Ritchey LLP
One Year Later, Where Are the ‘Transparency in Coverage’ Compliance Studies “The authors posit that the lack of compliance monitoring is not for lack of interest but rather because of the complexity of the landscape to which the regulation applies. As such, in this piece, we lay the groundwork for compliance studies by outlining the agencies responsible for enforcing compliance with the TiC rule, delineating the universe of entities that are required to comply with it, and discussing how compliance might be assessed.” Full Article – Health Affairs Forefront
Action Steps Health Parity Should Take Now in Response to New DOL Guidance on Mental Health Parity “The Departments have consistently highlighted certain types of plan exclusions or limitations as problematic or out of compliance and addressed these areas again in both the 2023 MHPAEA Report to Congress and the Proposed Rules. Plan sponsors should review their plans carefully for these red flags and should also consider performing a more general MHPAEA compliance review of their group health plans, with an emphasis on the Department’s six areas of focus.” Full Article – Foley & Lardner LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
TEXAS
Employee E-Signatures in Arbitration Agreements Under Scrutiny
“Regardless of the ultimate outcome of the AutoNation case, one thing is clear—employers should have e-signature systems that leave little room for doubt about the efficacy of the security procedures, and the resulting authenticity of an employee’s e-signature.” Full Article
– Hunton Andrews Kurth LLP
NEW YORK
New York Enacts Laws on Captive Audience Meetings, Wage Theft, and Gender Identity
“During a busy term at the New York Legislature, Governor Kathy Hochul signed legislation prohibiting captive audience meetings, categorizing wage theft as larceny, and expanding protection of “gender identity or expression” to interns.” Full Article
– Jackson Lewis P.C.
CALIFORNIA
New California Non-Compete Law Furthers the State’s Employee Mobility Protections and Seeks to Void Out of State Employee Non-Compete Agreements
“On September 1, 2023, California Governor Gavin Newsom signed legislation that furthers the state’s protections for employee mobility and seeks to void out of state employee non-compete agreements. Specifically, the new law provides that any contract that is void under California law is unenforceable regardless of where and when the employee signed the contract.” Full Article
– Seyfarth Shaw LLP
WISCONSIN
Worker’s Compensation in the Work-from-Home Era
“At the onset of the COVID-19 pandemic in 2020, many employees around Wisconsin transitioned from a traditional office setting to working remotely from home. Since then, new questions have been raised by workers regarding which at-home injuries might be covered under the Worker’s Compensation Act.” Full Article
– State Bar of Wisconsin
NEW HAMPSHIRE
New Hampshire Adopts Workplace Accommodations for Nursing Mothers
“New Hampshire will guarantee the right of nursing mothers to an unpaid break of 30 minutes to pump for every three hours of work beginning July 1, 2025. This new state law comes in the wake of the 2022 federal PUMP Act, which requires employers nationwide to provide employees with reasonable break time to express breast milk for one year after a child’s birth.” Full Article
– Jackson Lewis P.C.
- Published in Blog
The RISQ RECAP:
September 18th – September 22nd, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Woodruff Sawyer: Softer D&O Market Still Offers Concerns for Underwriters “While concerns about a “tsunami of pandemic-related litigation” never quite materialized, according to Woodruff Sawyer in its latest D&O Looking Ahead Guide for 2023, those fears have been replaced with a number of others among D&O insurers. Economic challenges such as inflation and higher interest rates, as well as the threat of a recession, combined with the war in Ukraine, limited supply chains and a volatile stock market are creating a difficult environment for management teams and boards.” Full Article – Insurance Journal
Viewpoint: IT Asset Disposition Is Growing Cyber Security Threat for All Organizations “Cyber risk headlines are dominated by rising ransomware activity and soaring global data breach costs. The increased ransomware activity, driven largely by threat actor financial motives, has indiscriminately affected all industry segments – from large corporate clients to small to midsize enterprises alike. As a consequence, the cyber insurance market has witnessed notable changes. Both from a direct and reinsurer viewpoint, we have experienced pared-back coverage, increased pricing per million dollars of cover and limited capacity. While these developments top headlines, it is not the sole exposure point for corporations.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Pajamas, Pennies and Time Rounding “Submitted for your consideration are two court decisions, decided less than a year apart, and involving the same practice of rounding time entries up or down to the nearest quarter hour. The legal principles applicable to both decisions were identical, but their outcomes (so far) were very different.” Full Article – Constangy Brooks
The EEOC’s Strategic Plan Provides Insight Into its Priorities, Including Systemic Discrimination “The Equal Employment Opportunity Commission has released its Strategic Plan for Fiscal Years 2022-2026, effective immediately. This document provides employers with an overview of the EEOC’s particular areas of focus.” Full Article – Shawe Rosenthal
Labor Department Proposes Increasing Salary Threshold for Overtime Pay “On Aug. 30, 2023, the WHD of the DOL released a NPRM that proposes to revise the “white collar” overtime exemption regulations applicable to executive, administrative, and professional employees. Most notably, the highly anticipated proposal seeks to raise the salary threshold under which employees are eligible for overtime pay under federal labor law to $1,059 per week ($55,068 annualized).” Full Article – Greenberg Traurig LLP
State Pay Transparency Laws: What’s Required Now and What’s Next? “As the summer winds down, multistate employers must remain apprised of an ever – Cooley LLP
-increasing number of obligations in the area of pay transparency … We highlight recent developments to existing pay transparency laws, summarize new pay transparency laws enacted over the summer and offer compliance tips for multistate employers grappling with this growing nationwide trend.” Full Article
DOL’s Conflicting Versions of Independent Contractor Standard Under FLSA “In January 2021, the U.S. Department of Labor (DOL) under the Trump administration issued a final rule defining the standard for when a worker is an independent contractor for the purposes of the Fair Labor Standards Act (FLSA). This standard remains in effect, although the DOL under the Biden administration issued a new proposed rule redefining the standard in October 2022.” Full Article – Hall Benefits Law, LLC
Expanding Existing Bereavement Leave Policies to Account for Fertility Related Losses “Bereavement leave policies generally aim to provide employees with paid leave following the death of a family member. These policies, however, often fail to acknowledge the grief that employees experience upon a fertility related loss, such as a miscarriage. Fertility related losses are very common (with more than 1 in 4 pregnancies resulting in miscarriage) and frequently result in post-traumatic stress disorder (with almost 1 in 3 women developing PTSD after a miscarriage), and yet they remain largely unaddressed in the workplace.” Full Article – Mintz, Levin Cohn Ferris Glovsky and Popeo P.C.
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
TEXAS
Employee E-Signatures in Arbitration Agreements Under Scrutiny
“Regardless of the ultimate outcome of the AutoNation case, one thing is clear—employers should have e-signature systems that leave little room for doubt about the efficacy of the security procedures, and the resulting authenticity of an employee’s e-signature.” Full Article
– Hunton Andrews Kurth LLP
NEW YORK
New York Enacts Laws on Captive Audience Meetings, Wage Theft, and Gender Identity
“During a busy term at the New York Legislature, Governor Kathy Hochul signed legislation prohibiting captive audience meetings, categorizing wage theft as larceny, and expanding protection of “gender identity or expression” to interns.” Full Article
– Jackson Lewis P.C.
CALIFORNIA
New California Non-Compete Law Furthers the State’s Employee Mobility Protections and Seeks to Void Out of State Employee Non-Compete Agreements
“On September 1, 2023, California Governor Gavin Newsom signed legislation that furthers the state’s protections for employee mobility and seeks to void out of state employee non-compete agreements. Specifically, the new law provides that any contract that is void under California law is unenforceable regardless of where and when the employee signed the contract.” Full Article
– Seyfarth Shaw LLP
WISCONSIN
Worker’s Compensation in the Work-from-Home Era
“At the onset of the COVID-19 pandemic in 2020, many employees around Wisconsin transitioned from a traditional office setting to working remotely from home. Since then, new questions have been raised by workers regarding which at-home injuries might be covered under the Worker’s Compensation Act.” Full Article
– State Bar of Wisconsin
NEW HAMPSHIRE
New Hampshire Adopts Workplace Accommodations for Nursing Mothers
“New Hampshire will guarantee the right of nursing mothers to an unpaid break of 30 minutes to pump for every three hours of work beginning July 1, 2025. This new state law comes in the wake of the 2022 federal PUMP Act, which requires employers nationwide to provide employees with reasonable break time to express breast milk for one year after a child’s birth.” Full Article
– Jackson Lewis P.C.
- Published in Blog