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"The former employees filed a class action lawsuit against the employer, claiming that in its COBRA notice, the employer attempted to intimidate them into not electing COBRA coverage by warning them that submitting incomplete information could result in civil and criminal penalties. The notice allegedly also referred to a $50 IRS penalty for each failure to provide a correct tax identification number for a covered individual." [Blessinger v. Wells Fargo & Co., No. 22-1029 (M.D. Fla. Dec.5, 2023)]

"[1] A group health plan may provide longer periods of COBRA coverage than the law requires.... [2] In some circumstances, terminating employees can pay for their COBRA premiums from their severance payments on a pre-tax basis.... [3] When providing COBRA subsidies, ... [employer] options often depend on whether their group health plan is insured or self-insured.... [4] [T]erminating COBRA coverage just because their subsidy ended does not create a special enrollment right allowing [the employee] to enroll in other coverage.... [5] IRC Section 409A ... applies to the reimbursement or payment of subsidized COBRA payments unless an exception applies."

"[T]he court ... [observed] that it could not conclude as a matter of law that mailing the notice to the wrong address after being informed of the correct address 'months before' counts as 'reasonably calculated to ensure actual receipt.' " [Schinnerer v. Wellstar Health, Inc., No. 22-0383 (N.D. Ga. Feb. 7, 2024)]

"[T]he increased need to address employees' mental and physical health conditions is expected to expand EAP services by 11% or more in each of the three successive years, 2024-2027. The continued expansion of assistance services means employers with these programs must maintain ongoing compliance.... [1] How to comply with ERISA  ... [2] COBRA election notices  ... [3] HIPAA considerations for EAP compliance."

"In its ruling, the court acknowledged that prior case law established that criminal theft by an employee indisputably qualified as gross misconduct. However, in this case, the former employees denied committing any theft, and the city offered no admissible evidence proving that the theft had occurred. The court remained 'unconvinced' that the city's allegations against the employees rose to the level of gross misconduct as a matter of law." [Johnson v. City of Kewanee, No. 21-4051 (C.D. Ill. Nov. 21, 2023)]

"Caution is needed because sometimes, dependents or spouses are dropped from coverage during open enrollment due to a COBRA triggering event.... [A] plan administrator that becomes aware that one of these qualifying events (such as a divorce) has occurred may wish to act on that information and provide a COBRA election notice immediately, even without formal notice. Sending the election notice will start the 60-day COBRA election period running at the earliest possible time."

Links to sixteen 2024 Compliance Guides, including [1] ACA Employer Mandate & ACA Reporting Guide; [2] COBRA for Employers Guide; [3] Compliance Considerations for Self-Insured Plans; [4] Health Benefits for Domestic Partners; and [5] Health Benefits While on Leave. Also included are charts detailing Section 125 Permitted Election Change Events; and State Paid Family Leave.

"The court acknowledged that prior case law has established that criminal theft indisputably constitutes gross misconduct but noted that the former employees had not admitted to stealing the data and the city had not offered admissible evidence proving the employees' actions." [Johnson v. City of Kewanee, No. 21-4051 (C.D. Ill. Nov. 21, 2023)]

"Unless the employer wants to modify its handbook and plan documents (and for self-funded plans, stop loss coverage) to provide continued active coverage during an unpaid leave, the employer instead should consider categorizing the coverage during the unpaid leave as COBRA coverage. Failure to do so could result in the stop loss carrier or insurance company denying claims during the period of the unpaid leave, as the employee was not actively at work, on a protected leave, or on COBRA."

"[A] district court concluded that it could not resolve -- at the summary judgment stage -- a dispute over a local governmental employer's failure to provide COBRA election notices to employees it terminated for allegedly taking and deleting 55,000 files. The employer argued that it was excused from complying with COBRA's notice requirements because the employees had engaged in gross misconduct for COBRA purposes." [Johnson v. City of Kewanee, No. 21-4051 (C.D. Ill. Nov. 21, 2023)]

"The change in residence becomes a qualifying event when that change affects the employee's or dependent's eligibility for coverage. Unless the relocation makes the moving individual ineligible or newly eligible under the plan, the move would not be considered a change in status qualifying event.... [T]here would likely be a qualifying event if the relocation resulted in the employee or dependent moving outside of a network that would provide service."

"If an employer decides to create an HRA to reimburse infertility treatment expenses, the COBRA treatment is more complex.... For purposes of assessing the employer's COBRA obligation in connection with [long-term fertility preservation ], the key question is whether the reimbursement of such expenses constitutes the provision of 'health care.' ... In general, reimbursement of costs related to adoption or surrogacy shouldn't give rise to a program that provides medical benefits -- meaning neither program should be subject to COBRA."

"Many employers incorrectly assume they do not have to offer COBRA at retirement if they offer a retiree medical plan or a retiree health reimbursement arrangement (HRA), but the calculus is not that simple. Whether there is a requirement to offer COBRA and if so, to whom and when, depends on a number of factors[.]"

"[D]espite the sheer volume of COBRA notice cases, courts have issued relatively little guidance on the merits of the plaintiffs' claims ... Based on the decisions and proceedings to date, [this article describes] some trends indicating that, although COBRA notice litigation may present a risk for plan sponsors, there are also multiple potential merits and class-based defenses available to defendants."

"[T]he court explained that while COBRA requires the administrator to 'notify' qualified beneficiaries of their COBRA rights, it does not limit this notification to a single notice. As long as an administrator timely notifies a beneficiary of their COBRA rights, it has complied with the requirements of the statute. Moreover, since the address to which the former employees were required to send COBRA payments was included in the second COBRA notice, the court ruled that the employer had fulfilled its notice obligation." [Bryant v. Walgreen Co., No. 23-1294 (N.D. Ill. Aug. 29, 2023)]

"[T]he court held that, even though the COBRA regulations refer to 'notice' in the singular, nothing prohibits an employer from providing multiple notices that together meet the notice content requirements. The court further held that the employees had not adequately explained how the combined notices failed to meet those requirements.... The court dismissed all but one claim -- an allegation that the notices provided an inaccurate election deadline for one employee whose qualifying event occurred during the COVID-19 outbreak period." [Bryant v. Walgreen Co., No. 23-1294 (N.D. Ill. Aug. 29, 2023)]

"Specific regulations for COBRA continuation coverage in M&A transactions address which party must assume COBRA liability in an asset sale. While parties are free to agree on the allocation of the responsibility and liability for COBRA coverage in the asset purchase agreement, [those regulations] will control if the parties' agreement fails or if this issue is not addressed in the purchase agreement."

"This column describes the COBRA rules as they apply to Mergers and Acquisitions, as well as the risks of non-compliance.... [T]he special COBRA rules that apply in an M&A transaction ... can result in liability on buyers and sellers, as well as members of their respective controlled group ... for noncompliance."

"The first item to consider is whether you are using the monthly measurement method or the look-back method for benefits eligibility ... Employees should also continue to be measured in their existing measurement period, and any subsequent qualification of benefits should be honored for the duration of the upcoming stability period.... If you have a plan that requires cancellation of coverage due to furlough or reduction in hours, you should be aware of two potential penalties to avoid. The first relates to the affordability of COBRA coverage and the second to your failing to offer coverage."

"Courts have repeatedly held that damages for COBRA violations are generally limited to unreimbursed medical expenses less applicable premiums and deductibles. Neither COBRA nor ERISA provides for extra-contractual or consequential damages such as recovery for emotional distress." [LiCausi v. Allentown Sch. Dist., No. 21-0957 (E.D. Pa. Jul. 11, 2023)]

"Soon after COBRA's enactment, plan sponsors and administrators sought answers to the seemingly endless questions that arose when there was just a statute, a bit of legislative history, and no administrative or case law guidance. The COBRA Guide was intended to fill that void.... Thank you all, and farewell."

"If a participant experiences a qualifying event and is provided a COBRA election notice on or before July 10, 2023, the individual's 60-day period to elect COBRA begins to run on July 10, 2023 (making the deadline September 8, 2023).... Although not expressly addressed, it appears that if a qualifying event occurs on or before July 10, 2023, and the COBRA election notice is provided after that date, the COBRA election deadline would be measured from the provision of the notice."

"In response to the anticipated ending of the outbreak period on July 10, 2023, the Massachusetts Division of Insurance, on April 10, 2023, issued Special Bulletin 2023-09 to ... commercial health insurers, to address the implications of the ending of the National Emergency with respect to COBRA.... This Bulletin does not apply to self-insured group health plans, and it is still too early to determine the extent to which regulators in other jurisdictions will take similar action."

"The DOL has indicated that plan fiduciaries should make reasonable accommodations to prevent the loss of or undue delay of benefit payments.... Plan sponsors might consider extending any upcoming deadlines to mitigate the impact on participants and beneficiaries during this transition.... Plan sponsors should consider reissuing prior disclosures made to participants about extension deadlines."

"[C]ertain time periods and dates for special enrollment under [HIPAA], COBRA continuation coverage, and internal claims and appeals and external review [were] disregarded when determining the due dates for certain elections and other actions by employee benefit plans subject to ERISA and the Internal Revenue Code during the COVID-19 National Emergency. Retirement plan elections were also impacted by the Disregarded Periods."