The RISQ RECAP – February 28th – March 4th, 2022
February 28th – March 4th, 2022
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
Having a female doctor improves women’s chances for workers’ comp: study
“Women injured on the job have a better chance of qualifying for workers’ compensation disability payments and receiving higher payouts when a female doctor evaluates their claim, according to a recent study.” Full Article
– Safety+Health
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Fifth Circuit Reverses Denial of Preliminary Injunction in Vaccine Mandate Case “A split panel in the Fifth Circuit is the first appellate court to signal certain private employer mandates could be vulnerable. The opinion reverses the district court’s denial of a preliminary injunction against the airline’s mandatory vaccine program.” Full Article – Littler
COVID-19 Testing Provider Sues Plans and TPAs for Violating Group Health Plan Coverage Mandate “In a footnote to its opinion, the court acknowledged the plan’s assertion that the price of the testing was too high and noted that its ruling did not foreclose a counterclaim challenging the propriety of the pricing.” Full Article – Thomson Reuters / EBIA
March 1 Deadlines for Group Health Plans “An employer with a group health plan that provides prescription drug coverage to Medicare-eligible individuals must make an annual disclosure to CMS within 60 days after the beginning of the plan year — no later than March 1, 2022 for calendar-year plans. The plan must report small HIPAA breaches occurring in 2021 no later than March 1, 2022. A ‘small’ breach is one affecting 500 or fewer individuals.” Full Article – Venable LLP
The Clock Is Ticking: HIPAA Small Breach Notifications Due March 1st “Covered entities must report small breaches to OCR no later than 60 days after the end of the calendar year in which the small breaches were discovered. Steps to take for notifications [1] Designating a person within the covered entity [2] Preparing the contents of the notification in advance [3] Printing out and retaining a ‘receipt’ of the filing of the notification [4] Verifying that the covered entity has appropriate documentation in place.” Full Article – Davis Wright Tremaine LLP
Tolling of Important Health and Welfare and Retirement Plan Deadlines Extended Again Due to COVID-19 “On February 18, 2022, President Biden again formally extended the COVID-19 National Emergency. Certain deadlines continue to be tolled for one year (or, if earlier, 60 days from the end of the National Emergency). For Participants: [1] COBRA qualifying event and disability extension notices [2] COBRA election [3] COBRA premium payments [4] HIPAA special enrollment period [5] Benefit claims and appeals [6] External review [7] Perfecting a request for external review. For Plan Administrators: COBRA Election Notice.” Full Article – Groom Law Group
Recent Guidance on Implementing the No Surprises Act “The No Surprises Act was enacted in December 2020 and went into effect on January 1, 2022. With just a year between enactment and the law’s effective date, the Biden administration moved swiftly to implement the law by issuing several interim final rules, one proposed rule, and guidance. But federal officials have not stopped there and have continued to issue new guidance, answer questions, and establish new processes. This article summarizes recent federal guidance on the No Surprises Act.” Full Article – Health Affairs
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 Employers Freed From Mask Mandate
“On February 10, 2022, New York State Governor Kathy Hochul lifted the statewide indoor mask-or-vaccine mandate that had been in effect since December 13, 2021. This mandate required that all persons entering a business’s premises wear a mask, unless all persons were vaccinated against COVID-19.” Full Article
– Phillips Lytle
California
California Reactivates COVID-19 Supplemental Paid Sick Leave
“The new legislation appears to be similar to the 2021 CSPSL, but also contains major differences regarding the characterization of the amount of hours allotted, regular rate calculations, and wage statement obligations.” Full Article
– Ford & Harrison
Illinois
First Deadline Approaching for New Illinois Equal Pay Act Requirements
“On January 25, 2022, the Illinois Department of Labor (“IDOL”) issued notices to 625 Illinois businesses to inform them that they have until May 25, 2022 to submit their Equal Pay Registration Certificate (“Certificate”) application as required under the amendments to the Illinois Equal Pay Act (“IEPA”).” Full Article
– Proskauer
Pennsylvania
Court Approves $4.2 Million Settlement in Suit for Unpaid Overtime
“A Pennsylvania federal judge approved a $4.2 million settlement between Pittsburgh-based grocery chain Giant Eagle and employees who were “team leaders” at its grocery stores and GetGo convenience stores in Ohio and Pennsylvania. Team leaders made allegations of misclassification and unpaid overtime in violation of the federal Fair Labor Standards Act and state wage laws.” Full Article
– Hall Benefits Law
Virginia
Virginia’s Republican Lawmakers Seek to Reverse State’s Overtime Wage Act
“During the November 2021 elections, Republicans regained a 52-48 majority in the Virginia House of Delegates and a Republican Governor, Glenn Youngkin, was elected. Now, although the Senate remains under control of the Democrats by a three-member margin, Republican law makers in both houses are seeking to undo the Virginia Overtime Wage Act.” Full Article
– Jackson Lewis
- Published in Blog
The RISQ RECAP – February 21st – February 25th, 2022
February 21st – February 25th, 2022
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
Excessive Repetitive Movement: The Safety Issue That Affects Nearly All Employers
“After a six-month investigation of an Oklahoma pork processing plant, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) found that the employer subjected its workers to excessive repetitive movements and lifting, and failed to track injuries requiring more than simple first aid treatment. Repetitive movement and overexertion can result in serious and long-lasting medical problems, according to OSHA’s area director. Employers have a responsibility to identify potential work situations that expose an employee to repetition of motion and excessive strain, and implement modifications to prevent debilitating injuries. Employers must also track workplace injuries, looking for patterns and possible areas of concern.” Full Article
– Travelers
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
New Federal Contractor Minimum Wage Hike Heads to Court “On February 8, 2022, just days after the Department of Labor’s (“DOL”) Final Rule “Increasing the Minimum Wage for Federal Contractors,” implementing Executive Order (“EO”) 14026, went into effect, five states – Arizona, Idaho, Indiana, Nebraska and South Carolina – filed a lawsuit – in Arizona federal district court, seeking, among other things, a court order invalidating the federal contractor minimum wage Final Rule and EO 14026.” Full Article – Crowell & Moring
A Brief Status Report on COBRA “The normal difficulties that employers have adhering to the technical requirements of COBRA have been exacerbated during the past two years as COBRA rules were changed to recognize the complications accompanying the COVID-19 pandemic. This added complexity is particularly worrisome as an employer’s simple oversight in administering COBRA can result in ERISA penalties, an excise tax, unintended self- insurance of medical claims, and litigation, including class-action lawsuits.” Full Article – Jackson Lewis
Biden Task Force Aims to Increase Unionization Efforts with Pro-Union Report “The Biden administration’s task force on organized labor recently released a report outlining steps to promote unionization amongst private and public sector employees and to strengthen labor unions. The Task Force on Worker Organization was created by executive order in April to enact policies for federal agencies and contractors that encourage unionization and to model best practices for private and public sector employers. It is co-chaired by Vice President Kamala Harris and Secretary of Labor Marty Walsh.” Full Article – Barnes & Thornburg
New Nationwide Ban against the Enforcement of Mandatory Arbitration Agreements in Sexual Misconduct Cases “On February 10, 2021, the US Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act), a bipartisan bill that invalidates and renders unenforceable predispute arbitration agreements in any case alleging sexual assault or sexual harassment. The US House of Representatives passed a version of the bill on February 7, 2021. US President Joe Biden is expected to sign the bill into law soon.” Full Article – McDermott Will & Emery
Female Video Game Developers Show Importance of Diversity “Recent news about Activision Blizzard’s workplace harassment has triggered broader conversations about female treatment in the video game industry. While Microsoft’s plan to acquire Activision Blizzard could lead to improvements, sexist gender stereotypes have long plagued the gaming industry. Part of the culture stems from the lack of female video game developers as well as a lack of representation at the executive levels of gaming companies. A report released by Activision showed that only 25% of its employees were women. At the executive levels, that number was significantly lower” Full Article – Carpenter Wellington
Impact of Recent OSHA and CDC Updates on Employers’ Mandatory Vaccination Policies “Now that OSHA has withdrawn its vaccine or test rule, many employers are considering the use of mandatory vaccination policies in their workplaces. Employers have met this development with varied responses – some employers have rescinded vaccination requirements that were compliant with the more stringent OSHA Emergency Temporary Standard (“ETS”) requirements, some have retained mandatory vaccination policies compliant with the now-withdrawn ETS, and still others have created mandatory vaccination policies without reference to the ETS.” Full Article – Mintz
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 Employers Freed From Mask Mandate
“On February 10, 2022, New York State Governor Kathy Hochul lifted the statewide indoor mask-or-vaccine mandate that had been in effect since December 13, 2021. This mandate required that all persons entering a business’s premises wear a mask, unless all persons were vaccinated against COVID-19.” Full Article
– Phillips Lytle
California
California Reactivates COVID-19 Supplemental Paid Sick Leave
“The new legislation appears to be similar to the 2021 CSPSL, but also contains major differences regarding the characterization of the amount of hours allotted, regular rate calculations, and wage statement obligations.” Full Article
– Ford & Harrison
Illinois
First Deadline Approaching for New Illinois Equal Pay Act Requirements
“On January 25, 2022, the Illinois Department of Labor (“IDOL”) issued notices to 625 Illinois businesses to inform them that they have until May 25, 2022 to submit their Equal Pay Registration Certificate (“Certificate”) application as required under the amendments to the Illinois Equal Pay Act (“IEPA”).” Full Article
– Proskauer
Pennsylvania
Court Approves $4.2 Million Settlement in Suit for Unpaid Overtime
“A Pennsylvania federal judge approved a $4.2 million settlement between Pittsburgh-based grocery chain Giant Eagle and employees who were “team leaders” at its grocery stores and GetGo convenience stores in Ohio and Pennsylvania. Team leaders made allegations of misclassification and unpaid overtime in violation of the federal Fair Labor Standards Act and state wage laws.” Full Article
– Hall Benefits Law
Virginia
Virginia’s Republican Lawmakers Seek to Reverse State’s Overtime Wage Act
“During the November 2021 elections, Republicans regained a 52-48 majority in the Virginia House of Delegates and a Republican Governor, Glenn Youngkin, was elected. Now, although the Senate remains under control of the Democrats by a three-member margin, Republican law makers in both houses are seeking to undo the Virginia Overtime Wage Act.” Full Article
– Jackson Lewis
- Published in Blog
The RISQ RECAP – February 14th – February 18th, 2022
February 14th – February 18th, 2022
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
10 Cyber Attacks in 2021 Cost $600M With 40,000 Businesses Put at Risk
“In just 10 cyber incidents last year, over $600 million in cash was stolen or taken as ransom, tens of millions of citizen records stolen, 40,000 businesses’ IT operations put at risk, one billion airline passenger details compromised and at least one bank was effectively shut down for over a week, according to Tokio Marine HCC International’s (TMHCCI) second annual Cyber Incidents Report. The vast majority of the incidents listed in this year’s top 10 involved large institutions where cyber security plays an integral role in operations, but this did not prevent their sophisticated defense systems from coming under attack, confirmed the report, titled “Top 10 Cyber Incidents 2021.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Medical Plan Surcharge for COVID-19 Unvaccinated: Checklist for Plan Sponsors (PDF) “A medical plan surcharge for the COVID-19 unvaccinated is workable, but complex. To implement a surcharge for COVID-19 unvaccinated participants, plan sponsors need to take these steps.” Full Article – Fox Rothschild LLP
The 2021 Mental Health Parity Grades Are In: Everybody Failed “The DOL issued 156 letters to plan sponsors and insurance providers requesting information about comparative analysis for NQTLs, and the initial responses were all insufficient. [The report] contains helpful information for those sponsors who were not part of the initial investigation. The agencies characterized the responses as generic, unresponsive, and lacking in sufficient detail and supporting documentation.” Full Article – Jackson Lewis P.C.
You Have Questions, the Government Has Answers Regarding Group Health Plan Coverage of At-Home COVID-19 Tests “When providing coverage of at-home tests through a direct-to-consumer arrangement, group health plans must cover reasonable shipping costs and sales tax in a manner consistent with other items or products provided by the group health plan via mail order. The direct coverage arrangement does not have to cover every eligible test from every manufacturer.” Full Article – Miller Johnson
In COBRA Election Notice Dispute, Court Requires Employer to Provide Retroactive Coverage and Pay Penalties “The district court found that the employer’s failure to correct the participant’s COBRA eligibility date was arbitrary and capricious. The court reasoned that the employer’s decision to use January 1, 2014, as the end date for the participant’s active-employee coverage was inconsistent with: The COBRA election notice furnished to the participant [and the] employer’s decision to pay for his active-employee coverage through February 28.” Full Article – Thomson Reuters Practical Law
Illinois Employers: Are You Complying with the Consumer Coverage Disclosure Act? “The Illinois Consumer Coverage Disclosure Act (CCDA) requires that Illinois employers provide a disclosure to employees regarding how the employer’s group health plan compares with the essential health benefits under the Illinois benchmark plan. While Illinois takes the position that the law applies to employers with self- insured plans, a court may not necessarily agree if an employer was willing to challenge the law on ERISA preemption grounds.” Full Article – Groom Law Group
Washington Legislature Instructs Employers Not to Deduct WA Cares Act Premiums “Employers should immediately stop any WA Cares payroll deduction. Employers that collected any premium from employees with the first paychecks of 2022 under the then-existing version of the Act have 120 days to refund those premiums to employees in full. Employers should maintain copies of all exemption approval letters for those employees who purchased their own insurance and obtained approved exemptions. Be aware of new exemptions.” Full Article – Fisher Phillips
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 City and State Update COVID Quarantine and Isolation Guidance to Align with CDC’s Shortened Timeframes
“New York City updated its quarantine and isolation guidance to align with the CDC’s recent shortening of both (i) the recommended timeframe for isolation following a COVID-19 diagnosis for individuals regardless of vaccination status, and (ii) the recommended quarantine period following a COVID-19 exposure for vaccinated individuals. New York State has also updated its guidelines to reflect these changes.” Full Article
– Proskauer Rose
New Jersey
New NJ Law Requires Employers to Warn Employees About Tracking Devices in Vehicles
“Employers have placed tracking devices on vehicles used by their employees for good reason: to ensure that employees are where they are supposed to be during working time. However, based on a recently enacted law in New Jersey, private sector employers must warn employees before they utilize a tracking device in a vehicle used by an employee. The employer’s failure to disclose this information comes at a notable cost.” Full Article
– Stevens & Lee
Illinois
Illinois Employers See Equal Pay Certification Looming on the Horizon
“Last year, Illinois made sweeping amendments to its state Equal Pay Act (EPA). Governor J.B. Pritzker twice signed bills passed by the Illinois legislature — first on March 23, 2021, and then on June 25, 2021, (the EPA amendments) — the cumulative effect of which gives Illinois perhaps the most robust and onerous (for employers) equal pay law in the nation.” Full Article
– Cozen O’Connor
Connecticut
Connecticut FMLA: Proposed Regulations Released for Comment
“The Connecticut Department of Labor has released proposed regulations for the amended Connecticut Family and Medical Leave Act, which was effective January 1, 2022. The proposed regulations will be subject to a 30-day comment period, ending on February 28. A virtual hearing on the proposed regulations will take place on February 17.” Full Article
– Jackson Lewis
District of Columbia
District of Columbia Issues New Mandatory COVID-19 Leave Poster
“The D.C. Office of Human Rights (OHR), published an updated poster on DCFMLA COVID-19 leave. Employers with 20 or more employees in the District are required to post this poster in a conspicuous place in the workplace. We recommend that the poster also be posted electronically for employees who work remotely.” Full Article
– Hogan Lovells
- Published in Blog
The RISQ RECAP – February 7th – February 11th, 2022
February 7th – February 11th, 2022
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
Ransomeware Surged In 2021: What Should Employers Consider To Stop Another Surge In 2022?
“The growth of remote work and lax home cybersecurity created opportunity for ransomware. Hackers also took advantage of the pandemic and the chaos from the pandemic to target the health care sector. The frequency of cyberattacks and the amount companies paid in ransoms increased last year, with ransom payments rising 300 percent, according to Harvard Business Review. Comparitech found that ransomware attacks cost the healthcare sector more than $20 billion in lost revenue, lawsuits, and ransom payments.” Full Article
– Travelers
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Remote Work Tax and Compliance Considerations “Many tax and compliance obligations apply when a company offers a remote work arrangement to employees in different states. These obligations include state and local employee tax requirements and may also include state and local family medical leave tax requirements where applicable.” Full Article – Bowditch & Dewey
What Are the Parameters for An Employer’s Requests for Medical Records Under the ADA? “The Americans with Disabilities Act governs employers’ ability to make medical inquiries of employees, including requests for medical records. And where the ADA permits employers to make such inquiries, it also requires employees to comply with those requests, as the U.S. Court of Appeals for the Fourth Circuit recently affirmed in a case that also provided a useful summary of the scope of such inquiries.” Full Article – Shawe Rosenthal
Hazy Directions on the Path Back to the Office “The return-to-office journey has been a long one with a lot of roadblocks. The onset of the omicron variant is continuing to reinforce how unpredictable the current environment is,” said Craig Leibowitz, executive director of innovation and insight advisory for Avison Young. Employers continue to weigh many of the same questions they’ve been wrestling with for nearly two years: timing of wide-scale reopening of offices, and whether to require vaccines or COVID testing to ensure workplaces are safe. So far, the data suggests many of the decisions remain on hold.” Full Article – Goulston & Storrs
Lockout/Tagout: The Most Misunderstood, Most Costly, and Most Misapplied Standard “These OSHA inspections focus on two standards: machine guarding (29 C.F.R 1910.212) and the Control of Hazardous Energy Standard, Lockout/Tagout (“LOTO”) (29 C.F.R 1910.147). Given advances in machine guarding, these inspections increasingly examine accidents where employees bypassed machine guards (light curtains, photo eyes) or failed to follow energy control procedures when they performed service or maintenance. OSHA may issue citations relating to the accident, as well as programmatic failures relating to employers’ LOTO programs.” Full Article – Seyfarth Shaw
Nationwide Injunction on COVID-19 Vaccine for Federal Contractors Applies to Vaccine Requirement Only “The federal court that issued a nationwide injunction of Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” has issued a new Order stating that it enjoined only the vaccine requirement of the EO’s implementing tool: the Safer Federal Taskforce (Safer Taskforce) Guidance. As a result of this Order, federal contractors covered by the EO should dust off their compliance plans to meet the many non-vaccine requirements of the Safer Taskforce Guidance, though action by other federal courts considering preliminary injunctions of the EO may put all of the requirements back on hold.” Full Article – Jackson Lewis
FLSA Misclassification: Common Mistakes That Employers Make When Classifying Their Employees as “Exempt” from Overtime Requirements “In 2021, the U.S. Department of Labor (DOL) collected a whopping $234 million in back wages for nearly 200,000 employees who the DOL determined were not paid in accordance with the Fair Labor Standards Act (FLSA). Experts report that more than 6,000 lawsuits alleging FLSA violations are filed each year in federal courts throughout the country, and that private settlements of FLSA lawsuits cost employers hundreds of millions each year. These figures confirm what every human resources professional already knows: misclassification of employees under the FLSA can be a costly mistake.” Full Article – Venable
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 City and State Update COVID Quarantine and Isolation Guidance to Align with CDC’s Shortened Timeframes
“New York City updated its quarantine and isolation guidance to align with the CDC’s recent shortening of both (i) the recommended timeframe for isolation following a COVID-19 diagnosis for individuals regardless of vaccination status, and (ii) the recommended quarantine period following a COVID-19 exposure for vaccinated individuals. New York State has also updated its guidelines to reflect these changes.” Full Article
– Proskauer Rose
New Jersey
New NJ Law Requires Employers to Warn Employees About Tracking Devices in Vehicles
“Employers have placed tracking devices on vehicles used by their employees for good reason: to ensure that employees are where they are supposed to be during working time. However, based on a recently enacted law in New Jersey, private sector employers must warn employees before they utilize a tracking device in a vehicle used by an employee. The employer’s failure to disclose this information comes at a notable cost.” Full Article
– Stevens & Lee
Illinois
Illinois Employers See Equal Pay Certification Looming on the Horizon
“Last year, Illinois made sweeping amendments to its state Equal Pay Act (EPA). Governor J.B. Pritzker twice signed bills passed by the Illinois legislature — first on March 23, 2021, and then on June 25, 2021, (the EPA amendments) — the cumulative effect of which gives Illinois perhaps the most robust and onerous (for employers) equal pay law in the nation.” Full Article
– Cozen O’Connor
Connecticut
Connecticut FMLA: Proposed Regulations Released for Comment
“The Connecticut Department of Labor has released proposed regulations for the amended Connecticut Family and Medical Leave Act, which was effective January 1, 2022. The proposed regulations will be subject to a 30-day comment period, ending on February 28. A virtual hearing on the proposed regulations will take place on February 17.” Full Article
– Jackson Lewis
District of Columbia
District of Columbia Issues New Mandatory COVID-19 Leave Poster
“The D.C. Office of Human Rights (OHR), published an updated poster on DCFMLA COVID-19 leave. Employers with 20 or more employees in the District are required to post this poster in a conspicuous place in the workplace. We recommend that the poster also be posted electronically for employees who work remotely.” Full Article
– Hogan Lovells
- Published in Blog
The RISQ RECAP – January 31st – February 4th, 2022
January 31 – February 4, 2022
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
How to protect your house from costly winter weather damage
“Whether snow, ice, freezing or flooding, winter weather can cause a host of headaches for homeowners. And if you’re in a new house that you’re still getting to know, it’s especially worth taking steps to be sure you’re prepared. ‘There are so many people that will be entering the winter as homeowners for the first time,’ said Steve Wilson, senior underwriting manager at insurer Hippo. ‘They might not have thought about how to protect this big investment.’” Full Article
– CNBC
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Upcoming Deadlines for ACA Reporting and Similar State Reporting “With respect to health coverage in 2021, the ACA deadlines range from February 28 to March 31, 2022, and the state deadlines range from January 31 to April 31, 2022. All of the reporting discussed in this alert relates to health coverage in 2021.” Full Article – Venable LLP
Washington State Long-Term Care Premium Tax Formally on Ice “Lawmakers have passed legislation delaying the implementation of Washington state’s novel long term care premium tax until July 2023. Employers who have already withheld the tax will need to refund it to their employees within 120 days. Those about to run their payroll should take steps to avoid (further) withholding of the tax.” Full Article – Lane Powell
How Are Private Insurers Covering At- Home Rapid COVID Tests? “At this time, about half of the insurers reviewed are implementing their testing coverage policy using only reimbursement. The remaining half of the top insurers had a direct coverage option set up. Enrollees in plans with a direct coverage option may have reimbursement limited to $12 per test if a test is purchased outside of this option.” Full Article – Henry J. Kaiser Family Foundation
In 2022 MHPAEA Report, DOL Highlights Robust Enforcement of CAA-21 and Widespread Noncompliance “The report does include guideposts for complying with MHPAEA including: [1] Insight into how the Departments chose who to request comparative analyses (CAs) from. [2] A list of the most common NQTLs for which DOL requested CAs. [3] The most common deficiencies in submitted CAs. [4] Common corrections and plan amendments in response to the Departments’ enforcement. The DOL has also focused its efforts on service providers that administer claims for large numbers of plans so that any resulting changes are passed through to those plans.” Full Article – Thomson Reuters Practical Law
Incoming PhRMA Chair Expects Drugmakers to Face ‘Some Pain’ in 2022 Amid Reform and Efforts to Rebuild Patient Trust “The debate over drug costs may have hit a tipping point. A recent federal report found that more than 5 million Medicare beneficiaries struggle to afford their prescriptions, while Morning Consult polling consistently pegs health care costs as a top issue for voters. And PhRMA spent record sums last year to oppose some proposals, arguing that lawmakers are taking the wrong approach to curb patients’ costs by targeting drug prices rather than the ‘broken insurance system.” Full Article – Morning Consult
Health Plan Fiduciaries Must Solicit Information from Brokers and Consultants “Plan fiduciaries should consider taking the following actions: [1] Identifying and assigning internal responsibility for soliciting and evaluating required information from brokers and consultants. – Ballard Spahr LLP
[2] Introducing contractual obligations on brokers and consultants to provide the required information. [3] Developing the means to evaluate the information received. [4] Assessing whether the compensation is, in fact, reasonable.” Full Article
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
Federal and New York City Workplace Vaccination and Testing Mandates: A Primer
“At President Biden’s urging, in late 2021, different arms of the federal government issued three high-visibility vaccine mandates to private employers, applying to federal contractors, many health care workers, and midsized and large employers. Those were followed by a sweeping order in New York City requiring businesses there to verify that their on- site employees have been vaccinated.” Full Article
– Skadden Arps
New Jersey
New Jersey Governor Signs Bill Expanding Parking Lot Liability for Employers
“On a cold January morning, New Jersey Gov. Phil Murphy trudged through the snow-covered statehouse parking lot and, with one swipe of pen, shifted the landscape for injuries that occur in employer parking lots. On January 10, 2022, Gov. Murphy signed S771 into law, expanding workers’ compensation liability in parking lots.” Full Article
– Goldberg Segalla
Illinois
Beware of the Illinois Employee who Insists on Independent Contractor Status
“Imagine that your company contracts with a salesperson, consultant, or other professional, who insists on an independent contractor arrangement. Your company accommodates by paying a daily rate for services, setting up a payment-upon-invoicing system, paying as a 1099 tractor, and signing a written contract stating your agreement that he is an independent contractor.” Full Article
– Krieg Devault
New Hampshire
Supreme Court of New Hampshire Weighs in On Reasonable Accommodations for Medical Marijuana Users
“The Supreme Court of New Hampshire reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes.” Full Article
– Seyfarth Shaw
Louisiana
Louisiana Supreme Court Upholds Private Employer Vaccine Mandate
“In Hayes v. University Health Shreveport, LLC, 2022 WL 71607 (La. Jan. 7, 2022), the Louisiana Supreme Court ruled that a hospital – or any other private employer – may impose an absolute vaccination requirement and fire any employee who fails to comply.” Full Article
– Reed Smith
- Published in Blog
The RISQ RECAP – January 24th, 2022
January 24 – 28, 2022
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
Extreme Weather in 2021 Brings Above-Average Claims to Global Insurers: Swiss Re
“Extreme weather events in 2021, including a deep winter freeze, floods, severe thunderstorms, heatwaves and a major hurricane, resulted in estimated annual insured losses from natural catastrophes of US$105 billion, the fourth highest since 1970, according to Swiss Re Institute’s preliminary sigma estimates.” Full Article
– Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Supreme Court Lifts Stay on CMS Vaccine Mandate in 24 of the 25 States Where the Mandate Had Been Enjoined “In issuing an order on January 13, 2022, in two cases involving the Centers for Medicare and Medicaid Services (CMS) vaccine rule, Biden v. Missouri and Becerra v. Louisiana, the U.S. Supreme Court removed a temporary halt imposed by lower courts that affected health care facilities in 24 states, including Ohio, Indiana, and Kentucky.” Full Article – Taft
Big Money: OSHA and EPA Civil Penalties Increase for 2022 “We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2022 inflation adjustments, which increase the penalties yet again.” Full Article – Seyfarth Shaw
Labor Agencies Pursue Aggressive Agendas in 2022 “Executive Order 12866 requires federal agencies to publish an agenda of regulations they plan to propose, promulgate, or review in the coming one-year period. The Department of Labor’s regulatory agenda showed ambitious goals for its agencies in 2022, as does President Biden’s Build Back Better Framework. Employers should brace themselves for increased enforcement activity from agencies such as the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), and the Office of Federal Contract Compliance Programs (“OFCCP”).” Full Article – Hunton Andrews Kurth
Avoid Possible Tragedy in the Future by Preparing for Disasters and Emergencies Now “Employers have a duty to provide a safe workplace for employees, and that includes when there is a natural disaster or other emergency situation. According to the federal Occupational Safety and Health Administration (OSHA), a workplace emergency is a situation that threatens workers, customers, or the public; disrupts or shuts down operations; or causes physical or environmental damage.” Full Article – Akerman
NLRB and Department of Labor Join Forces: What Does This Mean for Employers? “Earlier this month, the U.S. Department of Labor’s Wage and Hour Division and the National Labor Relations Board announced a Memorandum of Understanding (MOU) described as “strengthening the agencies’ partnership and outlining procedures on information-sharing, joint investigations and enforcement activity, as well as training, education and community outreach.” Full Article – Barnes & Thornburg
Department of Labor Proposes New Formula For H-2A Guest Worker Wages “As December began, the U.S. Department of Labor (“DOL”) proposed a modified formula for calculating minimum wages for agricultural guest workers on H-2A visas. The proposal was necessitated by a federal judge in California striking down a prior proposal in December 2020 for the DOL failing to provide sufficient justification for two fundamental changes.” 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.
New York
Federal and New York City Workplace Vaccination and Testing Mandates: A Primer
“At President Biden’s urging, in late 2021, different arms of the federal government issued three high-visibility vaccine mandates to private employers, applying to federal contractors, many health care workers, and midsized and large employers. Those were followed by a sweeping order in New York City requiring businesses there to verify that their on- site employees have been vaccinated.” Full Article
– Skadden Arps
New Jersey
New Jersey Governor Signs Bill Expanding Parking Lot Liability for Employers
“On a cold January morning, New Jersey Gov. Phil Murphy trudged through the snow-covered statehouse parking lot and, with one swipe of pen, shifted the landscape for injuries that occur in employer parking lots. On January 10, 2022, Gov. Murphy signed S771 into law, expanding workers’ compensation liability in parking lots.” Full Article
– Goldberg Segalla
Illinois
Beware of the Illinois Employee who Insists on Independent Contractor Status
“Imagine that your company contracts with a salesperson, consultant, or other professional, who insists on an independent contractor arrangement. Your company accommodates by paying a daily rate for services, setting up a payment-upon-invoicing system, paying as a 1099 tractor, and signing a written contract stating your agreement that he is an independent contractor.” Full Article
– Krieg Devault
New Hampshire
Supreme Court of New Hampshire Weighs in On Reasonable Accommodations for Medical Marijuana Users
“The Supreme Court of New Hampshire reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes.” Full Article
– Seyfarth Shaw
Louisiana
Louisiana Supreme Court Upholds Private Employer Vaccine Mandate
“In Hayes v. University Health Shreveport, LLC, 2022 WL 71607 (La. Jan. 7, 2022), the Louisiana Supreme Court ruled that a hospital – or any other private employer – may impose an absolute vaccination requirement and fire any employee who fails to comply.” Full Article
– Reed Smith
- Published in Blog
The RISQ RECAP – January 17th, 2022
January 17 – 21, 2022
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
3 Emerging and Future Trends in Workers’ Compensation
“Executives from Enlyte provided their perspective on the impact of pharmacy (including medical marijuana), return to work, and mental health treatment trends in the field of workers’ compensation. Enlyte experts from disparate disciplines reflected recently on three emerging and future trends in workers’ compensation. Enlyte is the parent company of Mitchell, Genex and Coventry, which provides technology, clinical services and network solutions for the property and casualty insurance industry.” Full Article
– Risk & Insurance
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Eighth Circuit Concludes That ERISA Does Not Preempt State Law Regulating PBMs “This was a fairly straightforward application of the Supreme Court’s Rutledge ruling, which held that ERISA does not preempt state laws that merely increase costs or alter incentives for ERISA plans. While these cases involved PBM laws, this line of reasoning could apply to other state laws governing entities or processes that have some relationship to ERISA plans, such as laws regulating TPAs and other service providers.” Full Article – Thomson Reuters / EBIA
Eleventh Circuit Highlights Importance of Unambiguous Disclaimers in SPDs “At times, Allstate made representations to employees, both orally and in writing, that their retirement life insurance benefits were ‘paid up’ or ‘for life.’ Because the SPDs unambiguously gave Allstate the right to change, amend, or terminate the plan at any time, and expressly clarified that employees had no vested rights under the plan, the appellate court agreed with the district court that plaintiffs failed to establish that benefits were actually ‘due’ under ‘the terms of the plan’ for purposes of ERISA Section 502(a) (1)(B).” Full Article – Jackson Lewis P.C.
Understanding the ‘No Surprises’ Rules “The ‘No Surprises’ Rules also introduce a negotiation and dispute resolution process for situations where the health plan and provider do not agree that the plan’s ordinary payment is appropriate. The rules set a strong presumption as to the amount. The rules include information that plans will need to provide to participants about the expected costs and benefits for a service subject to the rules. This requirement is delayed, pending further guidance.” Full Article – Ballard Spahr LLP
You Can Go Home Again: Agencies Release New Group Health Plan “Plan sponsors will want to contact their pharmacy benefit managers or other networks in short order to determine whether they have a direct coverage solution that will satisfy the safe harbor requirements and allow the plan to impose a dollar limitation on out-of-network costs.” Full Article – Proskauer
Coverage Requirements for COVID-19 Tests
Supreme Court Characterizes ETS as Public Health Measure Outside of OSHA’s Jurisdiction “The Court asserted that OSHA has failed to show evidence of ‘grave danger’ in many industries, and absolves employers of the requirement to ensure that unvaccinated employees engage in weekly testing. With the ETS set to expire in May, it is unclear whether it will ever become law and again be enforced. The government will need to determine whether to continue to press its merits case at the Sixth Circuit before a possible return engagement with the Supreme Court.” Full Article – Seyfarth Shaw LLP
DOL Increases Civil Money Penalties for 2022 “A table reflects the DOL’s 2022 annual inflation adjustments to the civil money penalties for violations of certain requirements under ERISA, effective January 15, 2022.” Full Article – Thomson Reuters Practical 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.
New York
New York Department of Labor Releases Final Regulations for State Sick Leave Law
“The New York Department of Labor issued final regulations regarding the New York State Sick Leave Law (NYSSLL), which has been in effect since September 30, 2020. The final regulations do not contain any changes to the rules initially proposed on December 9, 2020.” Full Article
– Littler Mendelson
Connecticut
Connecticut Paid Leave Payments and Connecticut FMLA Changes Coming January 1: What You Need to Know
“As we speed closer to January 1, the date when payments will begin der Connecticut’s Paid Family and Medical Leave Act and the effective date of changes to Connecticut’s Family and Medical Leave Act (CT FMLA), below are some updates and considerations for employers.” Full Article
– Jackson Lewis
Minnesota
A Blizzard of Activity from Minnesota OSHA in the New Year
“On January 3, 2022, Minnesota OSHA adopted the ETS by reference in the State Register. For Minnesota employers with 100 or more employees this means they must develop and implement a COVID-19 vaccination and testing policy by January 10, 2022. (MNOSHA indicated it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10.) Further, employers must make the testing requirements of their policies operational by February 9, 2022.” Full Article
– Littler Mendelson
Washington
Washington Long-Term Cares Fund Update: Employers Advised to Withhold Premiums Starting January 1
“Governor Jay Inslee has clarified that, starting January 1, “employers will still be legally obligated to pay the full amount owed to state ESD Employment Security Department] to begin the long-term care program” under the Washington Long-Term Services and Supports Act, until the legislature changes the law.” Full Article
– Jackson Lewis
California
California Adopts New CDC Guidance Regarding Quarantine and Isolation Periods With Its Own Twists
“The California Department of Public Health (CDPH) released updated guidance to conform to the new CDC guidelines but added additional requirements, including testing to exit isolation or quarantine after the fifth day. Notably, the new guidance also introduces a distinction between boosted and non-boosted individuals for the first time.” Full Article
– Hunton Andrews Kurth
- Published in Blog
The RISQ RECAP – January 10th, 2022
January 10 – 14, 2022
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
2022 Set to be “Hangover” Year From 2021’s Cyber Epidemic
“Much of the cyber turmoil that plagued the world in 2021 will continue into 2022, with individuals remaining the top source of risk in an irrevocably online society, according to Experian’s annual Data Breach Industry Forecast for 2022. ‘In a sense, 2022 will be a sort of hangover from 2021’s cyberdemic,’ commented breach resolution firm in its report. ‘Since so much of our lives now take place online, the digitization of society means that our infrastructure, institutions and personal lives are more exposed than ever to malicious actors. Big institutions remain vulnerable, despite spending millions on security, and cybercriminals have plenty of opportunities to exploit weak technologies.’ ” Full Article
– Zywave
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Effectively Implementing Social Media Policies in the Workplace “The stated goal of the National Labor Relations Board (“NLRB”) is to ensure that employers are not violating Section 8(a)(1) of the National Labor Relations Act (the “Act”) by implementing a work rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” In particular, the NLRB has focused on the precise wording and language used in employment handbooks. Although the NLRB’s yardstick in this area is apparently flexible rather than rigid, a careful understanding of applicable NLRB opinions can help employers regulate social media usage more effectively.” Full Article – Klein, Moynihan, Turco
Federal Contractors Must Ban the Box “The Fair Chance to Compete for Jobs Act of 2019 took effect on December 20, 2021 and requires agencies to include a clause in federal contracts that prohibits contractors from requesting, either verbally or in writing, the criminal history of an applicant for work under a federal contract until after a conditional offer of employment has been made. (The “box” refers to the box on many employment applications, which must be checked if the applicant has a criminal record). There are exceptions where a criminal background check prior to the offer is required by law, the position is related to law enforcement or national security duties, or the position has access to classified information.” Full Article – Shawe Rosenthal
Immigration Updates in COVID-19 Times “International borders have been closed for 18 months, U.S. embassies abroad have been operating at a limited capacity, and yet employers struggle to find and retain talent. Corporate immigration, including H-1Bs and other visas, continues to provide a solution for savvy employers. Here are the most important immigration changes within the last year.” Full Article – Holland & Hart
Coworking Spaces: COVID-19 Considerations “As workplaces are reimagined, employers and operators of coworking spaces need to consider how to operate safely in the age of the COVID-19 pandemic. – Jackson Lewis
Coworking spaces have become an intriguing work alternative for remote employees, hybrid workers, self-employed individuals, independent contractors, and others. Employers and operators of coworking spaces should consider such issues as the security of sensitive company or employee information and compliance with COVID-19 health and safety rules, among others.
” Full Article
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 Department of Labor Releases Final Regulations for State Sick Leave Law
“The New York Department of Labor issued final regulations regarding the New York State Sick Leave Law (NYSSLL), which has been in effect since September 30, 2020. The final regulations do not contain any changes to the rules initially proposed on December 9, 2020.” Full Article
– Littler Mendelson
Connecticut
Connecticut Paid Leave Payments and Connecticut FMLA Changes Coming January 1: What You Need to Know
“As we speed closer to January 1, the date when payments will begin der Connecticut’s Paid Family and Medical Leave Act and the effective date of changes to Connecticut’s Family and Medical Leave Act (CT FMLA), below are some updates and considerations for employers.” Full Article
– Jackson Lewis
Minnesota
A Blizzard of Activity from Minnesota OSHA in the New Year
“On January 3, 2022, Minnesota OSHA adopted the ETS by reference in the State Register. For Minnesota employers with 100 or more employees this means they must develop and implement a COVID-19 vaccination and testing policy by January 10, 2022. (MNOSHA indicated it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10.) Further, employers must make the testing requirements of their policies operational by February 9, 2022.” Full Article
– Littler Mendelson
Washington
Washington Long-Term Cares Fund Update: Employers Advised to Withhold Premiums Starting January 1
“Governor Jay Inslee has clarified that, starting January 1, “employers will still be legally obligated to pay the full amount owed to state ESD Employment Security Department] to begin the long-term care program” under the Washington Long-Term Services and Supports Act, until the legislature changes the law.” Full Article
– Jackson Lewis
California
California Adopts New CDC Guidance Regarding Quarantine and Isolation Periods With Its Own Twists
“The California Department of Public Health (CDPH) released updated guidance to conform to the new CDC guidelines but added additional requirements, including testing to exit isolation or quarantine after the fifth day. Notably, the new guidance also introduces a distinction between boosted and non-boosted individuals for the first time.” Full Article
– Hunton Andrews Kurth
- Published in Blog
The RISQ RECAP – January 3rd, 2022
January 3 – 7, 2022
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
2022 Set to be “Hangover” Year From 2021’s Cyber Epidemic
“Much of the cyber turmoil that plagued the world in 2021 will continue into 2022, with individuals remaining the top source of risk in an irrevocably online society, according to Experian’s annual Data Breach Industry Forecast for 2022. ‘In a sense, 2022 will be a sort of hangover from 2021’s cyberdemic,’ commented breach resolution firm in its report. ‘Since so much of our lives now take place online, the digitization of society means that our infrastructure, institutions and personal lives are more exposed than ever to malicious actors. Big institutions remain vulnerable, despite spending millions on security, and cybercriminals have plenty of opportunities to exploit weak technologies.’ ” Full Article
– Zywave
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
To Deduct or Not to Deduct: Washington Cares Act Dilemma Requires Employers to Make a Choice This January “It makes sense to collect the premium given that the Act is currently the law and it requires employers to deduct premiums beginning on January 1, 2022. If the legislature changes the law, employers will likely need to refund those premiums quickly or risk a wrongful wage withholding claim. All signs seem to point to a change in the law, or even repeal, and the lack of civil penalties may make the risk of not following the current law more attractive.” Full Article – Fisher Phillips
IRS Announces PCORI Fee Amounts for the 2022 Reporting Period “The original PCORI fee assessments under the ACA were scheduled to end after September 30, 2019, but Congress extended these fees for another ten years, until at least September 30, 2029. The updated PCORI fee is now $2.79 per covered life for all plan years ending on or after October 1, 2021, and before October 1, 2022, up from $2.66 for the prior period.” Full Article – Jackson Lewis P.C.
No Surprises Act Implementation: What to Expect in 2022 “Monitoring of the law’s impact, as well as compliance, will be accomplished in various ways. Data reporting by IDR entities will provide some information. Annual health plan audits conducted by federal agencies can also yield information about prices charged and paid for surprise bills. State systems may also yield important data as to how the law is working. To a large extent, oversight and enforcement will rely on complaints.” Full Article – Henry J. Kaiser Family Foundation
Premium Increase Upon Retirement Was a COBRA Qualifying Event “The appellate court agreed that the employee’s placement on unpaid leave was not a qualifying event, explaining that there was a reduction of hours … but not a corresponding loss of health coverage. Because the retirement (a termination of employment for COBRA purposes) resulted in a higher premium for the same health coverage (because it was now considered retiree coverage, the employee experienced a loss of coverage, resulting in a COBRA qualifying event.” Full Article – Thomson Reuters / EBIA
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.
This section will be updated as measures are released.
- Published in Blog