Health & Welfare Plans Newsletter

July 2, 2020

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View COVID-19 News and Resources

[Guidance Overview]

Summer Break Does Not Necessarily Mean a Break from FFCRA Leave Mandate

"[FAB 2020-4 tells DOL] investigators that when evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program they should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a 'plan,' whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19."

Jackson Lewis P.C.

[Guidance Overview]

Agencies Provide Additional Guidance on COVID-19 Diagnostic Testing Coverage Mandate

"The Departments of Labor, [HHS}, and the Treasury recently issued a new set of FAQs that provide guidance to group health plan sponsors on various questions related to implementation of the COVID-19 diagnostic testing mandate."

Buck

[Guidance Overview]

New York Agencies Issue Guidance on COVID-19 Sick Leave for Health Care Workers

"The Law requires employers to provide up to 14 days of paid sick leave (depending on the size of the employer, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation issued by a governmental agency. [T]he Guidance ... specifically address[es] scenarios where health care employees may qualify for multiple orders of quarantine or isolation resulting in multiple periods of eligibility for paid COVID-19 sick leave under the Law."

Littler

[Guidance Overview]

DOL Proposes Updates to Mental Health Parity Compliance Tool, Including Guidelines for Internal Compliance Plans

"The proposal integrates guidance and examples from agency FAQs Part 39 and revises existing examples to add an explanation of how plans and insurers can correct violations.... [T]he proposed update does not include recent guidance on the interaction of MHPAEA and COVID-19 mandated coverages[.]"

Thomson Reuters / EBIA

How to Help Employees Build Health Savings

"When establishing (or revising) an HSA-eligible health plan, employers need to carefully consider their HSA contribution strategy. They may choose to seed employees' HSAs, institute an employer match, combine the HSA with a wellness program or create a strategy that combines these approaches.... [P]lans with an employer match lead to 22 percent more employee participation and employee contributions that are 35 percent higher than plans without a match."

HealthEquity

Cafeteria Plan Did Not Convert Life Insurance Coverage Into Non-ERISA Benefit

"The result in this case is not surprising, but it highlights some fundamental issues. While in general, a cafeteria plan is not itself an ERISA plan, the benefits paid for through a cafeteria plan may be subject to ERISA, and ERISA considerations can arise when a cafeteria plan is used as a funding mechanism for ERISA benefits." [Vasu v. Combi Packaging Sys. LLC, No. 18-1889 (N.D. Ohio May 25, 2020)]

Thomson Reuters / EBIA

Benefits in General

[Guidance Overview]

Time Is Money: A Quick Wage-Hour Tip on ... Determining Part-Time Employees for Benefits Eligibility

"While the definitions of full-time employees and part-time employees for purposes of FFCRA emergency paid sick leave focus on 40 hours per workweek, the determinations (if not outright definitions) of each type of employee -- i.e., the number of hours applicable -- are not uniform across federal law."

Epstein Becker Green

Fifth Circuit Adds Headwinds to ERISA Summary Judgments, Suggests Possible Alternative Procedure (PDF)

"[T]he parties did not seriously challenge the use of summary judgment to resolve the claims under the de novo standard of review, and the court did not reach the issue specifying the correct procedure. Instead, the court overturned summary judgment under the 'normal' summary judgment standard -- the administrative record created a genuine issue of material fact.... [T]he court suggested that it may endorse the Ninth Circuit's approach, where district courts review the administrative record and make findings of fact and conclusions of law under FRCP 52, without conducting a traditional bench trial[.]' [Katherine P. v. Humana Health Plan, Inc., No. 19-50276, 5th Cir. May 14, 2020)]

Hunton Andrews Kurth

[Opinion]

How Discovery Is Evolving in ERISA Benefits Litigation

"While the availability of discovery in ERISA cases has definitely expanded; and the trend continues in support of allowing discovery, the reason there are no uniform rules is that there was never any legitimate basis for curtailing discovery in the first place since the analogy to administrative law was misplaced. ERISA claimants lack the same due process protections afforded in administrative proceedings since claim appeals are no substitute for hearings before administrative law judges."

DeBofsky Sherman Casciari Reynolds P.C.

Selected Discussions
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Severance Pay Formula Can Take Into Account the Previous FMLA Leave?

"Is it unlawful for a severance pay formula with a 12-month lookback to reduce the months worked by FMLA leave time taken by an employee? What if all leave time is not included in the severance formula?"

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Most Popular Items in the Previous Issue

Employee Benefit Items in IRS Regulatory Agenda, Spring 2020
Internal Revenue Service [IRS], U.S. Department of the Treasury

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2020 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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