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Health & Welfare Plans Newsletter

June 18, 2021

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[Guidance Overview]

ARPA COBRA Subsidy: Employer Tax Credit Issues

"[E]mployers can receive reimbursement of the ARPA COBRA subsidy by claiming a credit from quarterly Medicare taxes due to the IRS. (Note that employers are only able to claim the credit for federal COBRA subsidies; the reimbursement for state 'mini-COBRA' subsidies goes to the carrier.) ... [T]he credit claimed by the employer is included in the employer's gross income."  MORE >>

HUB International

[Guidance Overview]

In Colorado, Vacation Pay Must Be Paid Upon Termination of Employment, Even If Employer's Policy Says Otherwise (PDF)

"The Colorado Supreme Court has now definitively ruled that under the Colorado Wage Claim Act employers must pay employees' earned and determinable vacation upon termination and that any policy or agreement provisions forfeiting employees' rights to such payments are void." [Nieto v. Clark's Market, No. 19SC553 (Col. Jun. 14, 2021)]  MORE >>

Sherman Howard

[Guidance Overview]

Can You Offer Employees Incentives for Vaccination?

"Under HIPAA, a vaccine incentive is likely to be considered a health-contingent wellness program. This kind of program is required to, among other things, [1] limit rewards to not more than 30% of the total cost of coverage under the employer's group health plan and [2] offer a reasonable alternative to satisfying the main condition.... [A] vaccine incentive program can be [1] incorporated into a HIPAA-compliant group health plan or [2] designed to be voluntary."  MORE >>

Miles & Stockbridge

Court Says No Specific Wording Required in Plan Document to Provide Discretionary Claims Authority

"On appeal, the Second Circuit determined that the plan's provisions 'establish a subjective standard by which [the insurer] can make claims eligibility decisions', and, therefore, the plan delegates discretionary authority to the insurer over benefit claims and denials. It ruled that the word 'reasonable' indicates a discretionary standard because there is a broad range of permissible choices within which the insurer may resolve claims." [Tyll v. Stanley Black & Decker Life Ins. Program, No. 20-1060 (2d Cir. May 4, 2021, unpub.)]  MORE >>

The Wagner Law Group

Federal Court Dismisses ERISA Plan Participants' Cross-Plan Offsetting Claims

"[T]he District Court found that, ... though the benefit plan may have suffered an injury due to the cross-plan offsetting, the plan participants themselves may not have sustained an injury ... because United did not deny any of their claims due to the cross-plan offsetting. Since the practice did not harm the claimant participants, the District Court held it was proper to dismiss the case." [Scott v. UnitedHealth Group, No. 20-1570 (D. Minn. May 20, 2021)]  MORE >>


Can an Employer Grant FMLA Leave, But Also Discipline an Employee for Failing to Timely Report the Absence?

"When an employee calls in an FMLA absence, but fails to follow the call-in procedures, the court here endorsed the employer's right to designate the absence as FMLA leave, but also to discipline the employee for failing to timely report her absence. As the court noted, the discipline was issued for violating the call-in policy, not as a result of the FMLA leave itself." [Reed v. Delta Air Lines, Inc., No. 18-13990 (E.D. Mich. Jun. 14, 2021)]  MORE >>

FMLA Insights

Supreme Court Dismisses Another Challenge to the ACA

"While the Justices appeared divided on the issue during oral argument, they ruled [on June 17] that both the state and individual plaintiffs lack standing. The Court's ruling focuses on the fact that nothing will happen to the individual plaintiffs if they fail to purchase health insurance, so their alleged injury is not traceable to government action." [California v. Texas, No. 19-840 (S. Ct. Jun. 17, 2021)]  MORE >>

Fisher Phillips

Supreme Court Rejects ACA Challenge; Law Remains Fully Intact

"The Court, by a vote of 7-2, turned back a challenge to the [ACA], concluding that the plaintiffs did not have standing to challenge the constitutionality of the now penalty-less individual mandate. The decision was written by Justice Breyer while Justices Alito and Gorsuch dissented.... [T]he Court did not reach the questions of whether the penalty-less mandate is now unconstitutional and, if so, whether the rest of the ACA should be struck down alongside it." [California v. Texas, No. 19-840 (S. Ct. Jun. 17, 2021)]   MORE >>

Katie Keith, in Health Affairs Blog

The Next Major Challenge to the ACA: Zero-Dollar Coverage for Preventive Services

"The next big case has already been filed, and it involves a clash between an obscure constitutional provision and the law's guarantee of zero-dollar coverage for preventive services.... The stakes will be lower this time around -- the whole law isn't threatened. But they're significant nonetheless.... This time, the law's opponents stand a good chance of succeeding." [Kelley v. Becerra, No. 20-283 (N.D. Tex. complaint filed Mar. 29, 2020)]  MORE >>

The Atlantic

Benefits in General

[Guidance Overview]

Audio Recordings Are Up for the Taking!

"[With Information Letter 06-14-2021, the DOL] has waded into a long-simmering debate about whether audio recordings of phone calls between a plan participant and the plan's administrator or insurer should be provided to the participant when challenging a benefit determination under the plan, and they have come down squarely on the side of the participant."  MORE >>


[Guidance Overview]

EBSA Issues Guidance on Disclosure of Phone Call Recordings

"Benefits claim fiduciaries may wish to consider their internal systems for recording calls, and for tracking and locating any recordings that are made. In particular, they may wish to consider developing a procedure or guideline concerning when calls can or should be recorded, and what is done with a recording after it is made. In addition, fiduciaries may wish to consider whether such recordings, if made, should automatically be included in the claim file."  MORE >>

Robinson & Cole LLP

Employee Benefits Jobs

View job as Retirement Plan Relationship Manager
for Capital Group Retirement Plan Relationship Manager

Capital Group

Telecommute / San Antonio TX / Irvine CA / Carmel IN

Press Releases

PBGC Announces New Chief Policy Officer

PBGC [Pension Benefit Guaranty Corporation]

Bill Yoerger Hired as CEO of Blue Ridge and Coastal Pension Services

Blue Ridge ESOP Associates

Webcasts and Conferences
(Health & Welfare Plans)

Employee Benefits Briefing


Nixon Peabody LLP

Last Issue's Most Popular Items

Supreme Court Rejects Challenge to Constitutionality of ACA (PDF)

Supreme Court of the United States

Supreme Court Declines to Overturn ACA -- Again

Kaiser Health News

Justice Department Sues to Block Aon's Acquisition of Willis Towers Watson

Antitrust Division, U.S. Department of Justice

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587.

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