Health & Welfare Plans Newsletter

August 7, 2020

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[Official Guidance]

Text of OPM Interim Final Rule and Comment Request: Paid Parental Leave for Federal Employees

85 pages. "The Office of Personnel Management is issuing an interim final rule to implement the Federal Employee Paid Leave Act, which provides 12 weeks of paid parental leave to certain Federal employees covered by the [FMLA]. Implementation of the new law also requires changes to OPM's existing FMLA regulations.... Effective date: October 1, 2020."

U.S. Office of Personnel Management [OPM]

[Guidance Overview]

Colorado Enacts Paid Sick Leave Law

"Effective January 1, 2021, the [Healthy Families and Workplaces Act (HFWA)] will require Colorado employers with 16 or more employees to provide up to 48 hours of paid sick leave per year and supplemental sick leave during a public health emergency. Smaller employers will be covered under the Act beginning in 2022."

Buck

[Guidance Overview]

Colorado Issues Guidance on Statewide Paid Sick Leave Law

"[The Healthy Families and Workplaces Act [HFWA] contains a number of loose ends as written, including ... [1] when the law's additional public health emergency declaration provisions take effect; [2] whether the Health Emergency Leave with Pay (HELP) Rules ... were still in play as a result of the COVID-19 PSL provisions applicable to all employees under the new law; and [3] whether certain conditions required when PSL is used extend to some or all types of PSL under the law. The guidance and other actions taken by the CDLE clarify these issues and related considerations but also [appear] to deviate from certain aspects of the law that seemed far less open to interpretation[.]"

Seyfarth Shaw LLP

Changes to the FFCRA Regulations?

"There are still a number of unknowns related to the impact of this decision ... These issues are complex and may even involve considerations other than FFCRA, such as: [1] Whether providing retroactive FFCRA leave to a period where an employee received unemployment compensation would require the employee to pay back some of that compensation, [2] Whether the employer is participating in the Payroll Protection Program and wants to provide retroactive FFCRA leave and how the employer should determine whether to apply these wages to its forgiveness amount or claim the FFCRA payroll credit, and [3] Whether providing retroactive FFCRA leave may negatively impact the employee's ability to have time available for a future qualifying need for leave (such as to care for a child whose school is closed to in-person instruction this fall)." [New York v. U.S. Dept. of Labor, No. 20-3020 (S.D.N.Y. Aug. 3, 2020)]

Miller Johnson

DOL Issues Guidance for Certain Federal Contractors on Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

"If the employee is using FFCRA leave and also using paid sick leave, vacation, or holiday hours provided by the [McNamara-O'Hara Service Contract Act (SCA)] or under the terms of Executive Order 13706 ... then the employer must continue to provide SCA health and welfare payments to the employee ... or any applicable health and welfare benefit, Davis-Bacon fringe benefits, or monetary equivalent required by the executive order for the hours paid under the executive order."

Littler

2020 U.S. Benefits Trend Report: A Comprehensive Annual Report of Employee Benefit Trends

"Key report findings include: [1] 9 of 10 adults lack the necessary tools to make well-informed medical decisions; [2] 30% of employees believe a lack of transparency from insurers and providers is the biggest barrier to effectively shopping for coverage; [3] Up to 40% of the workforce will be independent contractors (gig workers) by 2040; [4] The percentage of employers offering employee mental health offerings increased to 75% in 2018 (up from 34% in 2014); [5] 62% of individuals with employer-based insurance have a chronic or complex disease, which comprises 85% of total employer-based healthcare spending."

NFP; free registration required to view full report

Eighth Circuit: ERISA Preempts North Dakota Statute Regulating Pharmacy Benefit Managers (PDF)

"In 2017, North Dakota passed ... [a statue which] 'sought to define the rights of pharmacist[s] in relation to [PBMs], and to regulate certain practices by PBMs.' The legislation regulates the fees PBMs and 'third-party payer[s]' may charge pharmacies, ... regulates benefits provisions and plan structures, ... and requires certain disclosures on the part of PBMs and prohibits PBMs from setting limits on information pharmacists may provide patients ... The North Dakota legislation's definitions of and references to 'pharmacy benefits manager,' 'third-party payer,' and 'plan sponsor' mean the legislation's provisions apply to plans 'subject to ERISA regulation.' ... [A] statute that implicitly regulates ERISA plans as part of its regulatory scheme is preempted by ERISA and cannot be saved merely because the reference also includes entities not covered by ERISA." [Pharmaceutical Care Management Association, No. 18-2926 (8th Cir. Aug. 7, 2020)]

Reuters

Tenth Circuit Reverses Summary Judgment on Denial of Health Claim

"The decision is noteworthy in that the court refused to review the claim denial under a deferential standard of review because it found that the required language granting the plan administrator discretion to interpret the plan and administer claims was not disclosed to participants." [Lyn M. v. Premera Blue Cross, No. 18-4098 (10th Cir. Jul. 24, 2020)]

Holland & Knight

Fifth Circuit: Coal Act Retiree Benefits Can Be Modified Under Bankruptcy Code

"[S]uccessor liability for a company's Coal Act retiree health obligations can become a major issue when the company later attempts to sell its assets. A framework in which these obligations are subject to modification therefore may be beneficial to both a company and its potential buyers. As the Fifth Circuit emphasizes, its holding in this decision is consistent with other circuits that have ruled on the issue and concluded that Coal Act obligations are subject to modification." [In re Westmoreland Coal Co., No. 19-20066 (5th Cir. Aug. 4, 2020)]

Thomson Reuters Practical Law

Voluntary Plans: A Safe Harbor from ERISA's Application (PDF)

"An arrangement that satisfies all four elements of the voluntary plan safe harbor is exempt from ERISA and its additional compliance obligations. Such an exemption can be quite significant, as it relieves the employer from requirements such as the preparation of a Plan Document and Summary Plan Description, the annual 5500 filing, and the various fiduciary duties that would otherwise fall upon a plan sponsor and administrator. In addition, the arrangement's exclusion from being considered a group health plan means that neither COBRA nor HIPAA will apply."

VCG Consultants

Benefits in General

Editor's PickNew Rules for 'Limited Scope' ERISA Audits Aimed at Improving Consistency and Quality (PDF)

"New rules that will add significant detail and transparency to audit reports for retirement plans subject to [ERISA] impose new requirements on plan sponsors, particularly those who instruct their auditors to perform what until now has been known as a 'limited scope audit.' Most of the responsibility to comply with the new rules, however, will rest with the independent auditors who perform the audits. As a result, the retirement plan audit reports that plan sponsors receive from their accounting firms beginning as soon as 2021 will be noticeably longer and more detailed."

Windham Brannon, LLC, via Journal of Pension Benefits

Avoiding COVID-19 Benefits-Related Litigation

"[1] Did employee layoffs trigger a partial termination of your plan that requires accelerated vesting? ... [2] Were there any changes to investments during the COVID-19 pandemic period and, if so, were those actions documented? ... [3] Were decisions whether or not to continue benefits to laid off or furloughed employees made consistently and uniformly? ... [4] Were separating employees timely notified of their COBRA rights and continuation of other benefits? ... [5] Have you recorded any changes to your COVID-19-related benefits strategy in plan documents?"

Hall Benefits Law

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Able to Change Plan Options When Electing COBRA?

"An employee expects to be laid off in the next couple of months. The employer is closing a local office and the employee does not intend to move to the new location. Can she change her health plan election when electing COBRA? The info I've found seems contradictory. It says generally that one cannot make such a change, but then it says there are exceptions that allow the change for HIPAA qualifying events. And losing group coverage eligibility is a qualifying event."

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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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