Health & Welfare Plans Newsletter

October 15, 2019

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[Guidance Overview]

Where Are the 2019 Forms 1094-C and 1095-C and the Instructions?

"We are halfway through October and the IRS still has not released the draft Forms or instructions for the 1094-C and 1095-C.... The likely culprit behind the delay is that the individual mandate is no longer in place in 2019. As a result, for the first time since their inception, there could be significant changes coming to the Forms and instructions for the 1094-C and 1095-C."
Accord

[Guidance Overview]

New Guidance Simplifies Affordability Determination for Individual Coverage HRAs

"The proposed regulations are consistent with the President's goal of expanding HRAs in order to give employers and employees more options when purchasing health insurance. This guidance should simplify determining an ICHRA's affordability and help employers avoid the shared responsibility payment. In light of the new proposed regulations, it is clear that the IRS is expecting employers of all sizes -- including ALEs -- to use the new ICHRA."
Ascensus

[Guidance Overview]

California Adopts Confusing FSA Notification Requirement

"The requirement appears to be aimed at notifying employees whose FSA coverage terminates during the year, thereby triggering a shortened runout period based on such mid-year termination. However, the law does not indicate that notice must be provided at a termination of employment. In fact, the law does not indicate at all when the notification should be made, other than requiring the notice to be in two different forms."
Kilpatrick Townsend, via Lexology; free registration required

[Guidance Overview]

DOL Opinion Letters Provide More Insight into FMLA Leave Designation (PDF)

"In two recent opinions, the [DOL] announced its positions with respect to certain employers' responsibilities under FMLA.... [C]ompanies:  [1] may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement and the employee in fact prefers a delay; [2] must provide notice of determination within five business days of being put on notice of the employee's need for leave for an FMLA-qualifying reason; and [3] may not designate more than 12 (or 26) weeks as FMLA leave, even if the employee requests additional weeks to be designated under FMLA."
FordHarrison

[Guidance Overview]

What Employers Need to Know About the Revised San Antonio Paid Sick Leave Ordinance

"Because the San Antonio ordinance has changed, employers need to revisit any policies they created in preparation for the August 1, 2019 effective date of the old ordinance. And employers with employees in Dallas and San Antonio need to decide whether a single policy covering employees in both cities still makes sense. The Dallas and San Antonio paid sick leave ordinances were nearly identical prior to the San Antonio ordinance revisions. This is no longer the case. The changes to the San Antonio paid sick and safe leave ordinance are significant."
Haynes and Boone, LLP

Tips for Requesting a Benefits Decision Support Budget

"Empowering employees with intelligent technology is an investment ... which might mean you'll need to request a decision support budget from multiple stakeholders before you can implement your open enrollment strategy.... A business case can give you material for presenting the budget request. And it can also provide talking points to prewire stakeholders."
Tango Health

Amazon Joins Trend of Sending Workers Away for Health Care

"Employers are increasingly going the distance to control health spending, paying to send workers across the country to get medical care and bypassing local health-care providers. One of the latest is Amazon.com Inc., which will pay travel costs for workers diagnosed with cancer who choose to see doctors at City of Hope, a Los Angeles-area health system. More than 380,000 of the Seattle-based company's employees and families across the U.S. are eligible for the travel benefit."
The Wall Street Journal; subscription may be required

Benefits in General

Federal District Court Sheds Light on ERISA's Fiduciary Exception to Attorney-Client Privilege

"The court explained that when the interests of the ERISA plan fiduciary and the plan beneficiaries have diverged sufficiently such that the fiduciary seeking legal advice is no longer acting directly in the interests of the beneficiaries, but in its own interests to defend against plan beneficiaries, then the attorney-client privilege remains intact. The court noted, however, that the mere prospect of potential litigation over a claim decision is insufficient to defeat the fiduciary exception because denying benefits to a beneficiary -- and any related pre-decisional legal advice -- is as much a part of the administration of a plan as conferring benefits to a beneficiary." [Duncan v. Minnesota Life Insurance Co., No. 17-0025 (S.D. Ohio Jul. 10, 2019)]
Carlton Fields, via JDSupra

Federal District Court Holds No Seventh Amendment Right to Jury Trial for ERISA Breach of Fiduciary Duty Claims

"The court's conclusion is not extraordinary; indeed, most courts to have considered the right to a jury in a fiduciary breach case have concluded the same. What's interesting about this decision is the depth of the court's analysis of the historical practice of jury trials and ERISA's text in rejecting the participants' arguments in favor of a jury trial for their claims." [Moitoso v. FMR LLC, No. 18-12122 (D. Mass. Oct. 8, 2019)]
Kantor & Kantor

Student Loan Guidance Added to Treasury Priority Plan

"While the plan does not specify what the agencies are considering, the guidance - which could be issued in the first half of 2020 - improves the outlook for those interested in combining a student loan component with their retirement plans."
National Tax-Deferred Savings Association [NTSA]

Is Your Company's Severance Arrangement Subject to ERISA?

"Instead of formal severance plans, many companies have informal guidelines that are applied when an individual's employment is involuntarily terminated. These arrangements provide more flexibility than a formal plan ... It is less likely that a company will treat an informal severance arrangement as an ERISA plan. However, ... informal severance arrangements may be subject to ERISA and failure to recognize that ERISA applies could result in significant penalties."
Drinker Biddle

Most Popular Items in the Previous Issue

IRS Web Page: Understanding Your CP233J Notice
Internal Revenue Service [IRS]

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2019 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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