Benefits-related items from EBSA and from the Wage and Hour Division (WHD) (changes from the Fall 2021 DOL Regulatory Agenda are noted):

Prerule Stage

• Improved Fee Disclosure for Welfare Plans
• Improving Participant Engagement and Effectiveness of ERISA Retirement Plan Disclosures
• Pooled Employer Plans

Proposed Rules

• Improvement of the Form 5500 Series and Implementing Related Regulations Under ERISA
• Definition of the Term 'Fiduciary'
• Prohibited Transaction Exemption Procedures
• Provider Nondiscrimination Requirements for Group Health Plans and Health Insurance Issuers in the Group and Individual Markets
• Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021
• Short-Term Limited Duration Insurance; Update
• Coverage of Certain Preventive Services Under the [ACA] (New)
• Requirements Related to Advanced Explanation of Benefits and Other Provisions Under the Consolidated Appropriations Act, 2021 (New)

Final Rules

• Pension Benefit Statements -- Lifetime Income Illustrations
• Adoption of Amended and Restated Voluntary Fiduciary Correction Program
• Implement SECURE Act and Related Revisions to Employee Benefit Plan Annual Reporting on the Form 5500 (moved from Proposed to Final)
• Requirements Related to Surprise Billing, Part 1
• Requirements Related to Surprise Billing, Part 2
• Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights (moved from Proposed to Final)
• Amendment of Abandoned Plan Program
• Updating the Davis-Bacon and Related Acts Regulations (moved from Proposed to Final)

"[R]eceiving a COVID-19 vaccine reduces the likelihood of delaying care for any medical condition by 37 percent.... [I]ncreased vaccine uptake has a positive, albeit statistically insignificant, effect on consumer healthcare spending in the short run.... The decline in delayed or foregone care caused by vaccination is particularly strong among minorities and those with a low socioeconomic background[.]"

"As of [June 15, 2022]: [1] The National Emergency will end on February 28, 2023... [2] The Public Health Emergency will end on October 12, 2022 ... [3] The HDHP/telehealth provision expires on December 31, 2022 ... HHS has indicated that they will give the public at least 60 days' notice before the formal end to the Public Health Emergency."

"In a dispute over reimbursements for COVID-19 testing, a district court concluded that the COVID-19 testing coverage mandate of the [FFCRA] and the [CARES Act] was an implied ERISA plan term. As a result, the court concluded that plan participants -- and health providers on behalf of the participants -- could sue under ERISA after a health insurer denied coverage for COVID-19 testing." [Open MRI and Imaging of RP Vestibular Diagnostics, P.A., v. Cigna Health & Life Ins. Co., No. 20-10345 (D.N.J. May 18, 2022)]

"Consumers have grown bullish about receiving more of their healthcare at home.... Providers and consumers may be misaligned on how telehealth should be used.... 18-24 year olds have been most affected by the mental health impacts of COVID-19. Here's where they are turning for help.... The pandemic fire-tested new strategies for clinical trials. Will moving trials out of the hospital help boost enrollment?"

"The court easily rejected plaintiff's argument that a program is necessary to navigate eligibility decisions about an employee's eligibility for benefits under the Severance Law, noting that the criteria ... could be resolved through 'a basic review of the employer's payroll system.' ... The court described the Severance Law as envisioning a 'one-time' project to address the lingering effects of a historically unique event (a global pandemic) by mandating certain severance payments for 'a short span of time.' " [RHC Operating, LLC v. City of New York, No. 21-9322 (S.D.N.Y. Mar. 30, 2022)]

"Under state law, all Colorado employers must provide this leave if there is a federal, state or local declaration of emergency. On April 16, the federal declaration of emergency was extended another 90 days. As a result, the obligation to provide PHE leave in Colorado is still currently in place. What do employers need to know about this extension -- and what should you be doing to comply?"

"Only 2.2 percent of DC plan participants stopped contributing to their plans in 2021, consistent with the activity observed in the previous years for which ICI has tracked these data. That compares with 2.3 percent in 2020 and 3.4 percent in 2009 -- another time of financial stress."

"The continuation of the National Emergency and the associated continuation of the disregarded period for the certain employee benefit plan deadlines will remain a challenge for plan sponsors to ensure affected participants and beneficiaries are afforded the benefit of the extended deadlines.... Plan sponsors should coordinate with their insurers and third-party administrators to ensure that their plans are being administered consistent with these extended deadlines."

30 pages; updated Apr. 6, 2022. "As safe and effective COVID-19 vaccines become available, CMS is issuing this toolkit to help health insurance issuers and Medicare Advantage plans identify the issues that need to be considered and addressed in order to provide coverage and reimbursement for vaccine administration."

"The law requires public school districts, public charter schools, and public universities to reimburse all sick leave taken by fully vaccinated teachers and employees during the 2021-2022 school year if the leave was taken due to a confirmed or probable diagnosis of COVID-19, being identified as a 'close contact' of an individual with COVID-19, or due to a required exclusion from school due to COVID-19, either experienced by the employee or a child of the employee."

"[M]ore than 59 million Americans with Medicare Part B, including those enrolled in a Medicare Advantage plan, now have access to Food and Drug Administration (FDA) approved, authorized, or cleared over-the-counter COVID-19 tests at no cost. People with Medicare can get up to eight tests per calendar month from participating pharmacies and health care providers for the duration of the COVID-19 public health emergency."

"COVID-19 leave must be provided outside of and before using eligible employees' existing accrued paid time off banks, unless state or federal law requires otherwise. COVID-19 leave must also be provided to employees immediately with no waiting period. Employers are permitted only to request a self-certified statement from the employee asserting that leave was for COVID-19 leave purposes."

"The ordinance does not only cover employees physically working in Philadelphia. An 'employee' is defined as an individual '(1) working for [an] [e]mployer within Philadelphia after the effective date of [the] Ordinance, [2] who normally works for that [e]mployer within the City of Philadelphia but is currently teleworking from any other location as a result of COVID-19, or [3] works for that [e]mployer from multiple locations or from mobile locations, provided that 51% or more of such employee's time is present within the City of Philadelphia.' "

"While Federal law currently mandates that all group health plans and group and individual health insurance covered by the [ACA] cover FDA-approved initial vaccination and first booster vaccinations administered in accordance with recommendations of the Advisory Committee on Immunization Practices (ACIP), the ACIP as of now has not amended its COVID-19 vaccination recommendations to include the FDA second boosters approved by the FDA."

"Some U.S. health care providers are informing uninsured people they can no longer be tested for the virus free of charge and will have to pay for the service."

"After encountering pushback from insurers and claims administrators, out of network providers have sued to recover reimbursement for thousands of claims, primarily arguing that the CARES Act provides them with a private cause of action for reimbursement at the at 'cash price' they listed on their websites.... [One District Court] rejected that argument, pointing, among other things, to the absence of Congressional intent for a private remedy." [Murphy Med. Assocs., LLC. v. Cigna Health & Life Ins. Co., No. 20-1675 (D. Conn. Mar. 11, 2022)]

"[1] Employees who have a religious objection to receiving a COVID-19 vaccination must inform their employers who may seek clarification if needed.... [2] Employers should provide employees and applicants with information about requesting a religious accommodation.... [3] Objections to COVID-19 requirements that are purely based on social, political or economic views or personal preferences or other nonreligious concerns do not qualify.... [4] Employers cannot rely on speculative or hypothetical hardship.... [5] A reduction in pay or some other loss of a benefit or privilege of employment is not a reasonable accommodation if an alternative accommodation exists."

"The vast majority of CDHPs elected to cover telehealth services on a pre-deductible basis (83% of plans offering fully insured products, 81% of plans offering self-insured products).... Services most commonly covered included primary care (95%), mental health care (95%), chronic care (89%), and acute/urgent care (89%).... [B]ehavioral health care services together were the form of care most frequently accessed via telehealth pre-deductible."

"In a dispute over reimbursements for COVID-19 testing and related services, a district court concluded that the coverage mandates of the [FFCRA] and the [CARES Act] did not create a private right of action ... The court therefore dismissed claims by health providers alleging that a health plan's insurer violated the FFCRA and CARES Act by failing to reimburse the providers for COVID-19-related testing services furnished to plan participants. However, the court permitted the providers' related ERISA benefit claims to proceed." [Murphy Med. Assocs., LLC. v. Cigna Health & Life Ins. Co., No. 20-1675 (D. Conn. Mar. 11, 2022)]

"The 2022 COVID-19 leave mandate applies to employers with 25 or more employees. Previously, the PHEL mandate only applied to employers with 50 or more employees.... Covered employees who work 40 or more hours per week are eligible for 40 hours of COVID-19 leave, unless the employer designates a higher amount. Previously, the PHEL mandate provided such employees with 80 hours of leave."

"Though the Labor Commissioner does not provide a specific calculation to use, its response indicates the calculation includes more than just 'in California' employees: ... An employee may choose which bank they wish to use. Without clear direction from an employee, an employer should assume that an employee, if eligible, is using the 'COVID positive' bank if they inform the employer that they or a family member for whom they are providing care tested positive."

"The normal deadline under HIPAA to make an enrollment change due to special enrollment is 30 days. However, this COVID relief provided that a participant's deadline would toll until 60 days following the end of the National Emergency."

"Under the prior guidance, it was deemed unreasonable for an employer to ask an employee for ... documentation substantiating their need for PSL unless the employee was out of work for more than three consecutive days ... The OLSE has now extended the presumption of unreasonableness to when an employee is out for up to and including five consecutive days for COVID-19 related reasons and is not under a doctor's care."

"The Philadelphia City Council recently passed a third iteration of the Public Health Emergency Leave law that will guarantee up to forty hours of paid sick leave for Philadelphia employees to recover from COVID-19 or avoid exposing others, to care for a family member with COVID-19 or who exhibits symptoms that might jeopardize the health of others, to care for a child whose school or place of care has closed due to COVID-19, or to take time off to obtain a COVID-19 vaccine or booster shot."