Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19

““Updated May 19, 2023. Descriptive list of current and proposed state and federal guidance, regulations, and legislation.”  Full Article

– Manatt, Phelps & Phillips LLP

More Federal Action in the Pharmaceutical Sector as PBM Bill Advances in the Senate

“The Pharmacy Benefit Manager Act reflects the overarching legislative push by members from both sides of the aisle and chambers of Congress to address drug pricing issues through federal fixes to the PBM framework.”  Full Article

– Epstein Becker & Green, P.C.

Fifth Circuit Stay Reinstates Preventive Services Mandate — For Now

“Plan sponsors should remember that the Fifth Circuit administrative stay is not a decision on the merits of the underlying case. The Fifth Circuit pressed pause on the district court order so that the pre- Braidwood preventive services mandate would remain intact for now while the case proceeds.”  Full Article

– Proskauer Rose LLP

IRS Announces 2024 Limits for Health Savings Accounts, High-Deductible Health Plans and Excepted Benefit HRAs

 “All of the dollar limits currently in effect for 2023 will change for 2024, with the exception of one limit. The HSA catch-up contribution for individuals ages 55 and older will not change as it is not subject to cost-of-living adjustments.”  Full Article

– McDermott Will & Emery

Providers Score More Victories in First Year of NSA Arbitrations

““In the year following the implementation of the arbitration process established under the federal No Surprises Act (NSA), more than 330,000 disputes have been submitted for resolution. This figure far outpaces the predictions of the US Departments of Health and Human Services (HHS), Labor, and the Treasury (the Departments), and complicates the implementation of the NSA.”  Full Article

– ArentFox Schiff LLP

First Gag Clause Attestations Due December 31, 2023- What Group Health Plan Sponsors Need to Know

“Plan sponsors and carriers of fully insured plans are both required to submit a Gag Clause Prohibition Compliance Attestation (GCPCA). FAQs Part 57 provide that if the insurance carrier submits the GCPCA on behalf of the plan, the Departments will consider the plan (and insurer) compliant. Sponsors of fully insured plans, however, should confirm that the carrier will be submitting the GCPCA on the plan’s behalf.”  Full Article

– Hunton Andrews Kurth LLP

OSHA Launches Nationwide Program Focusing on Workplace Falls

“For the last 12 years, 29 CFR 1926.501 (Duty to Have Fall Protection) has topped OSHA’s list of most frequently cited standards. Despite the agency’s enforcement efforts, falls from heights remain the leading cause of fatalities and serious injuries across all industries.”  Full Article

– Littler Mendelson P.C.

Best Practices for Handling and Documenting a Non-Performing Employee

“Addressing an employee’s failure to meet performance expectations can be challenging for an employer. This article highlights best practices for handling and documenting a non-performing employee.”  Full Article

– Venable LLP

5 Steps for Managing Layoffs and Workplace Reductions

“No one likes to think about layoffs and workforce reductions, but they are a reality from time to time, especially when market conditions are uncertain or unfavorable. Although workforce reductions are unfortunate, there are things that employers can do to facilitate a smooth transition and protect against legal consequences.”  Full Article

– Levenfeld Pearlstein, LLC

Bueller? Bueller? EEOC Examining Attendance Policies for ADA Violations

“Do you have a “no fault” attendance policy or some other way in which employees get points for absences? If so, be careful. A recent Eleventh Circuit matter, EEOC v. Eberspaecher North America, Inc. suggests that the Equal Employment Opportunity Commission (EEOC) wants to check out those policies to see if there is an ADA violation and may want to expand its search beyond one facility.”  Full Article

– Bradley Arant Boult Cummings LLP

EEOC Offers “Promising Practices” for Battling Workplace Harassment

“The Equal Opportunity Employment Commission (EEOC) released what it describes as “Promising Practices for Preventing Harassment” with detailed recommendations in the categories of (1) Leadership and Accountability, (2) Comprehensive and Effective Anti- Harassment Policy, (3) Effective and Accessible Anti-Harassment Program and
(4) Effective Anti-Harassment Training.”  Full Article

– Phelps Dunbar LLP

Compliance Update for U.S. Employer Conducting Criminal Background Checks in the Hiring Process

“Employers who conduct background checks on applicants or employees must comply with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Among other things, the FCRA requires employers who procure criminal background reports (“consumer reports”) to provide applicants and employees with a Summary of Rights form as prepared by the Consumer Financial Protection Bureau (CFPB) when providing them with the FCRA-required pre-adverse action notices.”  Full Article

– Hunton Andrews Kurth, LLP

Payor/Provider Convergence and What it Means for You

“Health care providers are increasingly taking financial risk in their contracts with health insurance companies and, in turn, health insurance companies are becoming more involved in the delivery of care.”  Full Article

– Foley & Lardner LLP

PHIPAA Privacy Rule Changes Coming in 2023: Five Steps to Prepare

“If HHS finalizes the Proposed Rule as written, HIPAA-covered entities and business associates must update their privacy policies and procedures, security standards, notices of privacy practices (NPP), authorization and disclosure forms, and business associate agreements, among other documents, to reflect the modifications required by the rulemaking.”  Full Article

– McGuireWoods

IRS Chief Counsel Discusses Cafeteria Plan Substantiation Rules

“The IRS Office of Chief Counsel has issued Memorandum Number 202317020 to explain the substantiation rules for claims made under health and dependent care FSAs by means of six commonly encountered factual situations, in five of which it concludes that the plan is not a cafeteria plan and the reimbursement is not shielded from income and employment taxes.”  Full Article

– The Wagner Law Group

Evolving Laws and Litigation Post-Dobbs: The State of Reproductive Rights as of May 2023 

“It has been almost a year since the US Supreme Court returned the question of abortion to the states, resulting in a proliferation of legislation across the country banning, restricting, expanding, or protecting access to abortion. Employers will need to continue monitoring this area closely to ensure that their policies and benefit plans comply with state and federal requirements.”  Full Article

– Morgan, Lewis & Bockius LLP

Can a Telehealth-Only Plan Continue After the End of the COVID-19 Emergency?

“If the PHE ends on May 11, 2023, a calendar year telehealth-only plan could remain covered by the exemption until the end of 2023. But if the plan year is, for example, June 1-May 31, the relief applies only until the end of the current plan year on May 31, 2023; as of June 1, 2023, that plan would have to comply with the preventive services mandate and the prohibition on annual and lifetime limits.”  Full Article

– Thomson Reuters/EBIA

First Circuit Holds Blue Cross Was Not a Fiduciary When it Allegedly Overpaid, Reprices, and Mishandled Benefit Claims

“The court was unpersuaded by the arguments of the Fund and its amici (including the DOL) that finding Blue Cross to be a nonfiduciary would lead to anticompetitive practices that concededly could harm plans and their participants. Thus, based on ERISA’s far from pellucid statutory definition of fiduciary, the First Circuit allowed Blue Cross to evade fiduciary responsibility to the tune of $1.4 million in plan losses caused by its medical claims pricing and payment practices.”  Full Article

– Kantor & Kantor LLP

Pay Equity Audits for the Transparency Era

“In recent years, workplace pay equity has become a priority for many states and cities, as seen by the growing number of pay transparency laws being implemented across the country. In turn, pay equity has become a critical priority for employers.”  Full Article

– Akerman LLP

Educate Managers on FMLA/ADA Overlap

“Time and again, I see managers conflate the two, and thereby create liability issues for the organization. A recent DOL opinion letter exemplifies how this issue can arise, particularly when an employee requests to limit the employee’s daily work hours.”  Full Article

– Levy Employment Law, LLC

NLRB Proclaims the Punishment Arrows in its Quiver

“If the NLRB finds that you have committed an unfair labor practice (and maybe more than once), just what can it do? In Noah’s Ark Processors, a three-member panel of the board recently took an opportunity to pronounce available punishments for repeat labor offenders, and it was not shy.”  Full Article

– Bradley Arant Boult Cummings LLP

The EEOC’s “Best Practices” for LGBTQI+ Employment Equity

“Sometimes, in addition to the recitation of federal sector cases, the EEOC will include an in-depth article on a particular topic of interest. Although these digests (and the articles they contain) are geared towards the federal government, the EEOC’s approach to certain employment issues can also be helpful for private employers.”  Full Article

– Shawe Rosenthal LLP

What Tiger Woods’ Foot Can Teach Employers About Managing Employees’ Medical Conditions

“Golfing icon Tiger Woods had to withdraw from the Masters tournament in Augusta, Georgia, last week due to a painful foot condition called plantar fasciitis (which causes a stabbing pain in the heel or foot). Video footage showing Tiger limping during his third round of play, after re- aggravating the condition while competing in the tournament.”  Full Article

– Ford Harrison

EEOC, FTC, and Other Federal Agencies Release Joint Statement on Confronting Bias and Discrimination in AI and Automated Systems

“On April 25, 2023, officials from four federal agencies released a joint statement pledging to increase “enforcement efforts to protect the public from bias in automated systems and artificial intelligence” (“AI”). The agencies taking part in this effort include the Equal Employment Opportunity Commission (“EEOC”), the Federal Trade Commission (“FTC”), the U.S. Department of Justice (“DOJ”), and the Consumer Financial Protection Bureau (“CFPB”).”  Full Article

– Proskauer Rose LLP

Courts Continue to Scrutinize ERISA Health Plan Benefit Denial Letters

“In asking the administrator to ensure the denial letters accurately reflect the administrator record, the court, is requiring the administrator to refrain from standard, stock language and draft a more personalized explanation for denying benefits.”  Full Article

– Troutman Pepper, via Lexology

The Disconnect: More View Health Savings Accounts as Investment Accounts Than Use Them This Way

“The majority (62 percent) of health savings account (HSA) accountholders reported that they are using the account to pay for out-of-pocket expenses. And most (69 percent) viewed the HSA as a savings account.”  Full Article

– Employee Benefit Research Institute [EBRI]

New Guidance on Gag Clause Attestation

“To ensure compliance with the Gag Clause Prohibition, plans must annually submit an attestation of compliance with the law to the Departments. The Departments have now launched a website for submitting attestations and issued instructions, a system user manual, and a Reporting Entity Excel Template for plans and issuers to submit the required Compliance Attestation.”  Full Article

– Seyfarth Shaw LLP

Court Rejects Mental Health Parity Claim for Wilderness Therapy Coverage Denial

“Noting that a successful MHPAEA claim requires a participant to plead facts showing a disparity in the plan’s treatment of MH/ SUD and medical/surgical benefits, the court concluded that the participant’s allegation was unsupported and contradicted plan language expressly applying the exclusion to both types of benefits.”  Full Article

– Thomson Reuters/EBIA

IRS Clarifies Ability to Reimburse Certain Programs Under HSAs, FSAs and HRAs

“Programs to treat a drug-related substance use disorder, programs to treat an alcohol use disorder, and smoking cessation programs qualify as medical care because the programs are considered treatment for a disease. However, therapy, nutritional counseling, and weight-loss programs will only be considered medical care if used to treat a specific disease (e.g. obesity). Programs for general health or wellbeing will not qualify as medical care.”  Full Article

– Foley & Lardner LLP

Departments Issue Guidance on Preventive Services Under the ACA Following the Braidwood Decision

“Preventive care requirements receiving an A or B rating from the USPSTF before March 23, 2010, are not affected by the ruling, which means plans and issuers must still cover those preventive care services without cost-sharing. FAQs Part 59 clarifies the Braidwood decision’s effect on the high deductible health plan (HDHP) preventive care deductible safe harbor.”  Full Article

– Bradley Arant Boult Cummings LLP

OHIO

Columbus, Ohio Prohibits Asking Applicants Their Salary History

“Recently, the City of Columbus joined a growing number of states and municipalities that have passed laws prohibiting employers from inquiring into a job applicant’s salary history. In Ohio, Toledo and Cincinnati currently have such ordinances.”  Full Article

– Vorys, Sater, Seymour & Pease LLP

PENNSYLVANIA

Pennsylvania Court Holds Employer Must Reimburse Out-of-Pocket Costs for Medical Marijuana

“A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of- pocket medical marijuana expenses related to a workplace injury.”  Full Article

– Jackson Lewis P.C.

NEW YORK

New York State Releases Updated Model Sexual Harassment Prevention Policy and Training

“The New York State Department of Labor (“DOL”) has released its long- awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention.”  Full Article

– Proskauer Rose LLP

COLORADO

Colorado’s Pay Transparency Laws

“Colorado’s Equal Pay for Equal Work Act (“EPEWA”) requires employers to include compensation and benefits information in all job postings and notifications of promotional opportunities. The EPEWA covers all employers, public or private, that employ at least one person in Colorado. Employees of covered employers must also comply with the pay transparency requirements of the EPEWA.”  Full Article

– Bryan Cave Leighton Paisner LLP

CALIFORNIA

California Seeks to Ban Most Criminal Background Checks

“California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment.”  Full Article

– Baker & McKenzie LLP

DOJ Continues Criminal Labor Antitrust Enforcement Despite Recent Prosecution Setbacks

“With yet another criminal wage-fixing indictment filed this week, the Antitrust Division of the Department of Justice (“DOJ”) signaled its continued commitment to prosecuting anticompetitive conduct affecting the U.S. labor markets, including within the health care industry.”  Full Article

– Hall, Render, Killian, Heath & Lyman PC

The Rising Importance of Trade Secret Protection in the Coming Era of Non-Compete Ban: Two Steps Your Business Needs to Take Now

“To become and remain competitive in virtually any industry, businesses develop, execute, and hone strategies to win over and keep customers. These strategies become critical operational and business information. To keep this information from falling into competitors’ hands, businesses rely on several tools.”  Full Article

– Kane Russell Coleman Logan PC

The Speak Out Act: What Employers Need to Know

“Employers should be aware of and immediately take measures to comply with the Speak Out Act, which took effect on December 7, 2022. The Act prohibits nondisclosure agreements (NDAs) and nondisparagement agreements designed to prevent current and former employees from discussing sexual harassment and assault.”  Full Article

– Hall Benefits Law, LLC

Pay Transparency Goes Primetime: Sweeping New Federal Legislation Proposed in Congress

“New proposed legislation in the U.S. House of Representatives would require all employers nationwide – regardless of size or number of employees – to include the wage range in all job postings, provide wage ranges to applicants, and provide wage ranges to existing employees for their positions.”  Full Article

– Littler Mendelson P.C.

Workplace Violence: An Unfortunate Reality– Are you Prepared?

“Mass shootings have been increasingly in the headlines in recent years, and many of these incidents have occurred in the workplace. Regardless of anyone’s politics, employers are having to face either the fear of, or the actual experience of, murder in their own offices, factories and schools. What steps should an employer take to keep their employees safe and help to ease the impact on their employees?”  Full Article

– Bradley Arant Boult Cummings LLP

Treasury Greenbook Includes Proposal to Alter Work Opportunity Tax Credit

“On March 9, 2023, the U.S. Department of Treasury released the Greenbook (formally known as the General Explanation of the Administration’s Revenue Proposals) for FY 2024 to explain revenue proposals included in the Administration’s budget. One proposal is to increase the number of hours required to be worked by an individual for the employer to be eligible for the Work Opportunity Tax Credit (WOTC).”  Full Article

– Covington & Burling LLP

OHIO

Columbus, Ohio Prohibits Asking Applicants Their Salary History

“Recently, the City of Columbus joined a growing number of states and municipalities that have passed laws prohibiting employers from inquiring into a job applicant’s salary history. In Ohio, Toledo and Cincinnati currently have such ordinances.”  Full Article

– Vorys, Sater, Seymour & Pease LLP

PENNSYLVANIA

Pennsylvania Court Holds Employer Must Reimburse Out-of-Pocket Costs for Medical Marijuana

“A Pennsylvania Court held that an employer violated the state Workers’ Compensation Act (WCA) by refusing to reimburse an employee for out-of- pocket medical marijuana expenses related to a workplace injury.”  Full Article

– Jackson Lewis P.C.

NEW YORK

New York State Releases Updated Model Sexual Harassment Prevention Policy and Training

“The New York State Department of Labor (“DOL”) has released its long- awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention.”  Full Article

– Proskauer Rose LLP

COLORADO

Colorado’s Pay Transparency Laws

“Colorado’s Equal Pay for Equal Work Act (“EPEWA”) requires employers to include compensation and benefits information in all job postings and notifications of promotional opportunities. The EPEWA covers all employers, public or private, that employ at least one person in Colorado. Employees of covered employers must also comply with the pay transparency requirements of the EPEWA.”  Full Article

– Bryan Cave Leighton Paisner LLP

CALIFORNIA

California Seeks to Ban Most Criminal Background Checks

“California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment.”  Full Article

– Baker & McKenzie LLP

CMS Updates Could Help Employers on Second Round of Drug Cost Reporting

“Employers facing a June 1, 2023, deadline for 2022 prescription drug cost reporting have important new clarification on issues such as plans that cover more than one employer, average monthly premium calculations, and medical plans that carve out prescription drug benefits. That clarification and more come in updated instructions recently released by CMS.”  Full Article

– Ogletree Deakins

States Step in as Telehealth and Clinic Patients Get Blindsided by Hospital Fees

“Along with Colorado and Connecticut, other states that have implemented or are considering limits on facility fees are Indiana, Minnesota, New Hampshire, Ohio, Texas, and Washington. Those measures include collecting data on what facility fees hospitals charge, prohibiting add-on fees for telehealth, and requiring site-neutral payments for certain Medicaid services.”  Full Article

– Kaiser Health News

ACA Preventive Service Requirements Partially Vacated

“The final judgment does not impact all of the ACA preventive service requirements. Specifically, the ACIP (immunizations/ vaccines) and the HRSA (women’s preventive care recommendations, including the contraceptive coverage requirements and preventive screenings for children) are not changed by this ruling.”  Full Article

– Groom Law Group

NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements

“Memorandum GC 23-05 seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors.”  Full Article

– Hunton Andrews Kurth LLP

San Francisco Employers, Do You Need to Submit an Employer Annual Report Forms by May 1st? 

“The HCSO applies to private and non-profit employers who employ any individual in San Francisco, and twenty or more workers inside or outside of San Francisco.”  Full Article

– Jackson Lewis

FAQs Anticipate End of COVID-19 National Emergency, Address Outbreak Period Extensions for COBRA and HIPAA Special Enrollment

“The FAQs leave some open questions — notably, no examples address how the outbreak period’s end will affect extended deadlines for filing benefit claims, appeals, and requests for external review; express guidance would be welcomed.”  Full Article

– Thomson Reuters/EBIA

MICHIGAN

Michigan Rolls Back its “Right-to-Work” Law; NLRB’s Top Lawyer Provides Post-McLaren Macomb Guidance

“Michigan becomes the first state in nearly 60 years to repeal its RTW law, which was implemented in 2013 under then-Governor Rick Snyder (R). The repeal is viewed as a major victory for union organization which reached an all-time low in 2022.”  Full Article

– Benesch Friedlander Coplan & Aronoff LLP

TEXAS

Proposed FTC Ban on Non-Competes: What Texas Business Owners Need to Know

“The proposed rule, announced by the FTC in January, would generally ban the practice of non-compete agreements by making it illegal for an employer to enter these agreements, maintain existing agreements, and/or represent to a worker that they are subject to a non-compete.”  Full Article

– Boyar Miller

CALIFORNIA

UPDATED: The City of Los Angeles’ Fair Work Week Ordinance Will Take Effect April 1, 2023

“The Ordinance, which was unanimously passed by the Los Angeles City Council in November 2022, requires retail employers in the City of Los Angeles to provide employees at least 14 days’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes.”  Full Article

– Sheppard Mullin Richter & Hampton LLP

ILLINOIS

Illinois Supreme Court Finds Federal Law Labor Preempts Union Members’ BIPA Claims

“Walton should stop unionized employees from bringing new BIPA claims in state and federal court. Walton also forecloses unionized employees from bringing BIPA claims on a class action basis. Companies on the receiving end of a BIPA lawsuit from a current or former union member should always explore a motion to dismiss the lawsuit on preemption grounds.”  Full Article

– Sheppard Mullin Richter & Hampton LLP

DELAWARE

Delaware’s “Freedom of Contract” Approach to Non-Compete Agreements– Even Between Sophisticated Parties in the Sale-of-Business Context– Has its Limits

“Non-compete agreements have recently gained a new round of attention with the Federal Trade Commission’s (FTC) proposed rule that would effectively ban employers from imposing non-competes (albeit not in certain sale-of-business scenarios).”  Full Article

– Gibbons PC

Email Layoffs From the Employment Litigator’s Lens

“With the market continuing on its roller coaster trajectory, many employers have been forced to make big cuts to payroll. When doing so, employers must think about a number of things, between final paychecks, vacation time, and other benefits.”  Full Article

– Mintz

Workplace Investigations: Anticipate Cognitive Overload

“Sometimes you just need to let things gel in your mind for a while. I came to this conclusion in my investigations practice years ago, but only recently recognized it as symptomatic of a far more universal phenomenon, what mental health professionals call “cognitive overload.”  Full Article

– Levy Employment Law LLC

Bystander Responsibility in the Era of #MeToo: Lessons Learned From Apple TV’s The Morning Show

“Partners Tracey Diamond and Evan Gibbs sit down with Megan Bigelow, assistant general counsel at Sonesta Hotels, to talk about the popular Apple TV series The Morning Show and harassment in the workplace.”  Full Article

– Troutman Pepper

2023 Compensation Check-Up: Four Questions to Ask About Your Compensation Practices

“Compensation is always a top-of-mind issue for employers, but on the heels of the “Great Resignation,” and amidst ongoing labor shortages, economic uncertainties, and evolving legal requirements, many employers are reassessing their compensation practices.”  Full Article

– Levenfeld Pearlstein LLC

The Two Factors Critical to Employee Recruitment and Retention

“The United States is experiencing a historically tight and transient labor market. Employers seeking to remain competitive in such a market would be wise to re-evaluate the nature of employment in their industry, the roles within their companies, and related pay and benefits according to a time
-tested theory.”  Full Article

– Constangy Brooks Smith & Prophete LLP

Dear Littler: How Do We Handle Drug or Alcohol Impairment in the Workplace?

“We are a manufacturing company with facilities in multiple states. We have had a number of incidents when supervisors have suspected an employee was impaired while working due to alcohol or drug use. We are particularly concerned about employees potentially endangering themselves or others if they are using our equipment while impaired, but we are unsure what to do in these circumstances. Can you help?”  Full Article

– Littler Mendelson

MICHIGAN

Michigan Rolls Back its “Right-to-Work” Law; NLRB’s Top Lawyer Provides Post-McLaren Macomb Guidance

“Michigan becomes the first state in nearly 60 years to repeal its RTW law, which was implemented in 2013 under then-Governor Rick Snyder (R). The repeal is viewed as a major victory for union organization which reached an all-time low in 2022.”  Full Article

– Benesch Friedlander Coplan & Aronoff LLP

TEXAS

Proposed FTC Ban on Non-Competes: What Texas Business Owners Need to Know

“The proposed rule, announced by the FTC in January, would generally ban the practice of non-compete agreements by making it illegal for an employer to enter these agreements, maintain existing agreements, and/or represent to a worker that they are subject to a non-compete.”  Full Article

– Boyar Miller

CALIFORNIA

UPDATED: The City of Los Angeles’ Fair Work Week Ordinance Will Take Effect April 1, 2023

“The Ordinance, which was unanimously passed by the Los Angeles City Council in November 2022, requires retail employers in the City of Los Angeles to provide employees at least 14 days’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes.”  Full Article

– Sheppard Mullin Richter & Hampton LLP

ILLINOIS

Illinois Supreme Court Finds Federal Law Labor Preempts Union Members’ BIPA Claims

“Walton should stop unionized employees from bringing new BIPA claims in state and federal court. Walton also forecloses unionized employees from bringing BIPA claims on a class action basis. Companies on the receiving end of a BIPA lawsuit from a current or former union member should always explore a motion to dismiss the lawsuit on preemption grounds.”  Full Article

– Sheppard Mullin Richter & Hampton LLP

DELAWARE

Delaware’s “Freedom of Contract” Approach to Non-Compete Agreements– Even Between Sophisticated Parties in the Sale-of-Business Context– Has its Limits

“Non-compete agreements have recently gained a new round of attention with the Federal Trade Commission’s (FTC) proposed rule that would effectively ban employers from imposing non-competes (albeit not in certain sale-of-business scenarios).”  Full Article

– Gibbons PC

No Surprises Act Gives Plan Sponsors Savings Opportunities

“The No Surprises Act also provides an employer or plan sponsor of an ERISA group health plan an opportunity to revisit their plan’s administrative services agreements with their third-party administrator TPA and reduce or eliminate certain fees being charged by the TPA.”  Full Article

– Hall Benefits Law

IRS FAQs Explains When Health FSAs, HSAs, or HRAs Can Reimburse Nutrition, Wellness, and General Health Expenses

“These FAQs do not break new ground or include any surprises. However, they may be helpful to those on the ‘front lines’ of cafeteria plan administration, who are sometimes asked to explain the reasons for plan operating rules and decisions.”  Full Article

– Thomson Reuters/ EBIA

Telehealth and the End of the COVID-19 Emergency

“The stand-alone telehealth relief under the ACA is available until the end of the latest plan year that begins on or before the last day of the PHE. For calendar-year plans, this relief would last until December 31, 2023. When an employer ends its stand-alone telehealth benefit, it may need to provide participants a 60-day notice of a material reduction in benefits.”  Full Article

– McDermott Will & Emery

States Act to Strengthen Surprise Billing Protections Even After Passage of No Surprises Act

“Where state law is more consumer- protective, the state law remains in effect. The NSA allows states to specify how payment disputes between insurers and providers are resolved. The federal approach does not apply if a state specifies its own mechanism. States may develop their own processes for enforcing the NSA and specified state laws.”  Full Article

– The Commonwealth Fund

DOL Annual Report to Congress on Self-Insured Group Health Plans (PDF)

“Approximately 74,100 group health plans filed a Form 5500 for 2020, an increase of nearly 13 percent from 2019. Self-insured plans covered nearly 35 million participants and held more than $112 billion in assets, while mixed-insured plans covered roughly 29 million participants and held $157 billion in assets.”  Full Article

– Employee Benefits Security Administration, U.S. Department of Labor

Insulin as Preventive Care: Why Not Eliminate Patient Cost Sharing?

“The No Surprises Act also provides an employer or plan sponsor of an ERISA group health plan an opportunity to revisit their plan’s administrative services agreements with their third-party administrator TPA and reduce or eliminate certain fees being charged by the TPA. Sponsors have a fiduciary obligation under ERISA to understand these fees and how they can be reduced.”  Full Article

– Health Affairs

CALIFORNIA

Cal/OSHA Proposes Changes to Update Workplace Exposure to Lead Regulations

“On March 3, 2023, the Cal/OSHA Standards Board published notice of proposed revised regulations pertaining to workplace exposure to lead for the general industry and construction safety orders.”  Full Article

– Jackson Lewis PC

ILLINOIS

Paid Leave for Nearly All Illinois Employees Coming Soon

“Paid leave for any reason is coming to Illinois. On March 13, 2023, Gov. JB Pritzker signed the Paid Leave for All Workers Act (Paid Leave Act), which requires employers to provide up to 40 hours of paid leave to nearly all employees in Illinois. The Paid Leave Act becomes effective on January 1, 2024.”  Full Article

– Cooley LLP

MARYLAND

Paid Family Leave Comes to Maryland

“Maryland has joined 10 other states and the District of Columbia in passing a paid family leave law. Under the new Time to Care Act of 2022 (TCA), eligible employees may apply to a state-administered fund that will be used to provide up to 12 weeks of paid family and medical leave, with the possibility of another 12 weeks for parental leave.”  Full Article

– Gordon Feinblatt LLC

DELAWARE

Delaware is Moving Away from Broadly Enforcing Non-Competition Restrictions

“Delaware courts are joining a growing list of legislative, judicial, and regulatory bodies that view restrictive non-competition covenants unfavorably. In three recent Chancery Court opinions, Delaware courts reflect an evolution in jurisprudence regarding restrictive covenants’ interpretation.”  Full Article

– Frost Brown Todd LLP

MICHIGAN

Michigan Senate Votes Repeal 2012 Right-to-Work Law

“The “right-to-work” law prohibits union-security agreements, which required private and/or public employees to pay union dues or services fees as a condition of obtaining or continuing employment. Employees in unionized jobs who opted out of the union are still afforded rights and benefits as members of the bargaining unit. The bill will now return to the House for a vote before it goes to Gov. Gretchen Whitmer for her signature.”  Full Article

– Plunkett Cooney PC