Health & Welfare Plans Newsletter

January 7, 2021

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[Official Guidance]

Text of EEOC Proposed Rule: Amendments to Regs Under the Americans with Disabilities Act

"The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is issuing this proposed rule in response to a decision of the U.S. District Court for the District of Columbia that vacated a portion of an EEOC regulation describing the incentives employers could offer as part of wellness programs that ask about employees' health and/or ask them to undergo medical examinations.... The Commission now proposes amendments to provisions in two sections of the ADA regulations: 29 CFR 1630.14(d), medical examinations and inquiries specifically permitted, and 1630.16(f), health insurance, life insurance, and other benefit plans (known as the 'safe harbor'), and to the interpretive guidance accompanying these sections. Revisions to these sections explain how the ADA's voluntary requirement and safe harbor provisions apply when determining the extent to which employers may offer incentives for employees to participate in wellness programs that obtain medical information." Icon to read more

U.S. Equal Employment Opportunity Commission [EEOC]

[Official Guidance]

Text of EEOC Proposed Rule: Amendments to Regs Under the Genetic Information Nondiscrimination Act of 2008

"The [EEOC] is issuing a proposed rule in response to a decision of the U.S. District Court for the District of Columbia that vacated a portion of an EEOC regulation describing the incentives an employer could offer to an employee whose spouse provides information about the spouse's manifestation of disease or disorder as part of a wellness program.... Under the proposed rule, the general prohibition on providing incentives in return for genetic information adopted in the 2010 rule would remain, but the exception first created in the 2016 rule allowing the offering of limited incentives to spouses who provide information about their manifestation of diseases or disorders to wellness programs would be altered considerably. Specifically, the proposed rule would limit wellness programs to offer a de minimis incentive to all family members, not just spouses, in exchange for family members providing information about their manifestation of diseases or disorders" Icon to read more

U.S. Equal Employment Opportunity Commission [EEOC]

[Guidance Overview]

EEOC Provides Proposed Wellness Rules for Review

"[T]he proposed rules address what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the ADA or GINA." Icon to read more

U.S. Equal Employment Opportunity Commission [EEOC]

[Guidance Overview]

HITECH Act Amended to Mitigate HIPAA Penalties for Business with Certain Security Practices

"The new law amends the [HITECH] Act to require [HHS], when contemplating penalties for HIPAA-covered entities and business associates, to take certain security practices into account. Specifically, the HHS Secretary is required to consider whether the covered entity or business associate is able to adequately demonstrate that it had 'recognized security practices' in place for at least the prior 12 months. If it does, it 'may' result in early, favorable termination of audits, or mitigate other fines and penalties." Icon to read more

Holland & Knight

[Guidance Overview]

Key Difference Between California and IRS Reporting for Employee Health Coverage

"For the first time in 2021, employers who have employees who are residents of the State of California may have reporting responsibilities as a result of the State's individual mandate which went into effect in 2020.... Who needs to file with the State of California? ... When must an employer furnish the Form 1095-C to the requisite employees and file the Forms 1094-C and 1095-C with the State of California? ... We are quickly approaching the middle of January which means employers are running out of time to furnish the Forms 1095-C to the requisite employees by the February 1, 2021 deadline." Icon to read more

Accord

[Guidance Overview]

Flexible Spending Account Relief in Consolidated Appropriations Act, 2021

"Each of these FSA provisions is permissive -- a company is not required to adopt any of these provisions. However, if a company does decide to amend for these FSA provisions, it will first need to confirm with its FSA third-party administrator (TPA) that the TPA can administer these new FSA provisions before communicating these provisions to its employees. For any FSA changes, notification must be provided to eligible employees; however, the CAA allows additional time for companies to adopt formal plan amendments." Icon to read more

Trucker Huss

A New Perspective on How to Talk About Benefits Programs

"While leading with the cost savings can be an important hook, it's also critical to point out the improvements an employee will see to their care under the program. It is one thing to talk about cost savings and incentives for using the company's diabetes management program, but even more impactful to announce improved outcomes and lower readmission rates." Icon to read more

Tango Health

Employer Considerations for Determining Whether to Continue Providing FFCRA Leave After Law’s Expiration

"Ultimately it is up to the IRS whether your FFCRA wage payments qualify for the tax credit. This was true in 2020, and not just unique to employers who extend the leave into 2021.... Time spent administering the leave balanced against employee usage  ... Potential for discrimination claims ... Employees using any form of paid leave for an extended period of time have the potential to cause a business disruption to your operations." Icon to read more

Fisher Phillips

Benefits in General

[Official Guidance]

IRS Announces Tax Relief for Hurricane Zeta Victims in Mississippi

"Victims of Hurricane Zeta that began October 28, 2020 now have until March 1, 2021, to file various individual and business tax returns and make tax payments ... Individuals and households who reside or have a business in George, Greene, Hancock, Harrison, Jackson, and Stone counties qualify for tax relief." Icon to read more

Internal Revenue Service [IRS]

[Guidance Overview]

Plan Sponsors Face a Tough Year for Compliance (PDF)

"[1] New investment duties regulation effective Jan. 12 ... [2] Cybersecurity and mitigating against potential cyber liability ... [3] What to do about missing participants ... [4] New developments for defined contribution retirement savings plans: Long term part-time employees ... Pooled Employer Plans ... [5] New reporting and disclosure requirements: Health plan transparency ... Lifetime income disclosures ... Electronic disclosure Rules." Icon to read more

The Wagner Law Group

[Guidance Overview]

Year-End Legislative and IRS Developments for Benefit Plans

"If adopting any of the [health or dependent care FSA] relief offered by the Act, plan sponsors should consider taking steps to limit their financial exposure, including limiting the number of mid-year election changes that will be permitted and prohibiting reductions in pre-tax FSA elections or carryovers of unused contributions or balances that would result in underfunding of reimbursements that have already been made.... [Retirement plan] sponsors must begin to track hours worked by LTPTEs for plan years beginning in 2021 and retain that information in future years so they can determine whether plan eligibility is met under this provision for any plan years starting after December 31, 2023.... Plan sponsors should be aware that they will be inviting a potentially significant recordkeeping burden if they decide to amend their 401(k) plans to provide employer contributions to LTPTEs and subject those contributions to a vesting schedule." Icon to read more

Wilkins Finston Friedman Law Group LLP

Exceptional Usefulness and Quality icon2021 Reporting and Disclosure Guide for Benefit Plans

43-page guide maps out what you need to do and when to keep your benefits plans compliant, organized by plan type: [1] Health and welfare plans; [2] Defined benefit retirement plans; and [3] Defined contribution retirement plans. Icon to read more

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2021 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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