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Health & Welfare Plans Newsletter

January 14, 2022

3 New Job Opportunities 3 New Job Opportunities


[Guidance Overview]

Agencies Reiterate ACA Preventive Care Requirements, Scold Some Plans

"Regulators indicate that participant complaints to federal agencies have proliferated over the years ... This trend compelled regulators to warn plans that ALL FDA-approved, cleared or granted contraceptive products that are determined by an individual's medical provider to be medically appropriate for the individual must be covered without cost sharing, whether or not specifically identified in the current FDA Birth Control Guide."  MORE >>


[Guidance Overview]

New Agency Guidance Requires Employer-Sponsored Group Health Plans to Cover Over-the-Counter COVID-19 Tests

"The Department guidance strongly encourages plans to pay for OTC Tests upfront ... [T]he guidance allows plans to: [1] Provide OTC Tests directly through the plan's retail or mail-order pharmacy network, with no out-of-pocket costs to the participant; and [2] Limit the amount the plan will pay for tests obtained outside of the plan's network to $12 per test (or the cost of the test, if less)."  MORE >>

Smith, Gambrell & Russell, LLP

Eighth Circuit Concludes That ERISA Does Not Preempt State Law Regulating PBMs

"This was a fairly straightforward application of the Supreme Court's Rutledge ruling, which held that ERISA does not preempt state laws that merely increase costs or alter incentives for ERISA plans. While these cases involved PBM laws, this line of reasoning could apply to other state laws governing entities or processes that have some relationship to ERISA plans, such as laws regulating TPAs and other service providers." [Pharmaceutical Care Management Assoc. (PCMA) v. Wehbi, No. 18-2926 (8th Cir. Nov. 17, 2021)]  MORE >>

Thomson Reuters / EBIA

Eleventh Circuit Highlights Importance of Unambiguous Disclaimers in SPDs

"At times, Allstate ... made representations to employees, both orally and in writing, that their retirement life insurance benefits were 'paid up' or 'for life.' ... Because the SPDs unambiguously gave Allstate the right to change, amend, or terminate the plan at any time, and expressly clarified that employees had no vested rights under the plan, the appellate court agreed with the district court that plaintiffs failed to establish that benefits were actually 'due' under 'the terms of the plan' for purposes of ERISA Section 502(a)(1)(B)." [Klaas v. Allstate Ins. Co., No. 20-14014 (11th Cir. Dec. 28, 2021)]  MORE >>

Jackson Lewis P.C.

Trends in Small-Group Market Insurance Coverage

"Health insurance enrollment among small-firm employees remained relatively stable from 2013 to 2019, hovering between 8.9 and 9.6 million enrollees. The rate at which small firms offer health insurance coverage decreased by just 2.6 percentage points from 2013 to 2020.... [P]remiums for single coverage grew by an average of 3.2 percent per year in the small-group market and by 3.7 percent in both the medium- and large-group markets."  MORE >>

Urban Institute

Supreme Court Characterizes ETS as Public Health Measure Outside of OSHA's Jurisdiction

"The Court asserted that OSHA has failed to show evidence of 'grave danger' in many industries, and absolves employers of the requirement to ensure that unvaccinated employees engage in weekly testing.... With the ETS set to expire in May, it is unclear whether it will ever become law and again be enforced. The government will need to determine whether to continue to press its merits case at the Sixth Circuit before a possible return engagement with the Supreme Court." [National Federation of Independent Businesses v. OSHA; Ohio v. OSHA, Nos. 21A244 and 21A247 (S. Ct. Jan. 13, 2022)]  MORE >>

Seyfarth Shaw LLP

Employers Who Would Have Been Covered by the OSHA ETS: What to Do Now?

"[If] you are in a state that requires employers to mandate vaccination or testing, then you will still need to comply with state law.... [If] you are in a state (such as Florida or Texas) that restricts employers' ability to impose vaccination mandates, it's safe to start complying with your state law now.... For everybody else ... [If] you told your employees about the ETS requirements and do not want to impose them now that you don't have to, then you should put together a brief communication to employees saying that, in light of yesterday's Supreme Court decision, you no longer plan to require vaccination or testing for unvaccinated employees."  MORE >>

Constangy, Brooks, Smith & Prophete LLP

Supreme Court Stays OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard

"The Supreme Court majority noted that OSHA could issue a narrower standard based upon heightened risk in certain types of workplaces, and OSHA could choose to do just that.... The Supreme Court decision leaves states free to regulate employers with regard to COVID-19.... The ETS also loses its preemptive effect in states without federally approved state OSHA plans." [National Federation of Independent Businesses v. OSHA; Ohio v. OSHA, Nos. 21A244 and 21A247 (S. Ct. Jan. 13, 2022)]  MORE >>

Ogletree Deakins

Supreme Court Halts Some (But Not Other) Employee Vaccine Mandates

"For now, employers are not required by federal law to move forward with the written policy and other deadlines effective Jan. 10 and Feb. 9, 2022 for the ETS. Federal implementation of the CMS interim rule remains active/ongoing in all 50 states plus territories, with Jan. 27 and Feb. 28, 2022 deadlines for Phase 1 and Phase 2 implementation." [National Federation of Independent Businesses v. OSHA; Ohio v. OSHA, Nos. 21A244 and 21A247 (S. Ct. Jan. 13, 2022); Biden v. Missouri; Becerra v. Louisiana, Nos. 21A240 and 21A241 (S. Ct. Jan. 13, 2022)]  MORE >>


Benefits in General

[Guidance Overview]

DOL Increases Civil Money Penalties for 2022

"[A] table reflects the DOL's 2022 annual inflation adjustments to the civil money penalties for violations of certain requirements under ERISA, effective January 15, 2022."  MORE >>

Thomson Reuters Practical Law

Alert (High Risk Issue) icon Terms of SPD Created Enforceable Promises Under State Law Despite At-Will Employment Status

"According to a three-judge Pennsylvania Superior Court panel, providing written descriptions to employees regarding various benefits, incentives and rewards may form a binding, unilateral contract creating rights and obligations separate from an employee's at-will relationship with the employer." [Evans v. Capital Blue Cross, No. 410 MDA 2021 (Penn. Jan. 5, 2022)]  MORE >>

Faegre Drinker

EBSA Secretary Nominee Advanced by Senate HELP Committee

"The United States Senate Committee on Health, Education, Labor and Pensions (HELP) on [January 13] advanced the nomination of Lisa Gomez to serve as assistant secretary for [EBSA], setting the stage for a full Senate vote. The nomination advanced by a partisan committee vote of 12 to nine."  MORE >>


Employee Benefits Jobs

View job as DB/DC Administrator
for Primark Benefits DB/DC Administrator

Primark Benefits

Remote / San Mateo CA

View job as DB/DC Administrator
for Primark Benefits

View job as Manager, Document Team
for Definiti Manager, Document Team


Remote / Louisville KY

View job as Director of Actuarial Services
for July Business Services Director of Actuarial Services

July Business Services

Remote / Woodway TX

Press Releases

DOL Investigation Leads Former Owner to Repay Unpaid Health Plan Claims of Uninsured Employees of Somerset Healthcare Agency

Employee Benefits Security Administration [EBSA], U.S. Department of Labor

international Center for Addiction and Education Cofounder Selected as Fellow for Rally's Social Enterprise Accelerator 2022 Winter Program

International Center for Addiction and Recovery Education [ICARE]

CAPTRUST Announces Addition of New Jersey-Based Portfolio Evaluations, Inc.

CAPTRUST Financial Advisors

Webcasts and Conferences
(Health & Welfare Plans)

No Surprises Act: New Rules and Guidance for Stakeholders, Part 2


Epstein Becker & Green

CMS Vaccine Mandate Gets Green Light From Supreme Court: What’s Next for Healthcare Employers?

January 18, 2022 WEBCAST

Ogletree Deakins

SCOTUS Hits Pause on OSHA COVID-19 Vaccination and Testing ETS: What’s Next for Employers?

January 19, 2022 WEBCAST

Ogletree Deakins

Top HR & Employment Law Issues for the Coming Year

January 26, 2022 WEBCAST

Wagner Law Group P.C.

A Look at 2022: Legislative and Regulatory Updates for Qualified Plan and Health and Welfare Plans

January 27, 2022 WEBCAST

Hunton Andrews Kurth

Last Issue's Most Popular Items

Supreme Court Opinion Reinstating Stay of Enforcement of OSHA Vaccine Mandate for Private Employers (PDF)

Supreme Court of the United States

Departments Issue Rules for Coverage of Over-the-Counter COVID-19 Tests

Groom Law Group

Text of OPM FEHB Program Carrier Letter: COVID-19 Over-the-Counter Tests, Vaccines, and Therapeutics (PDF)

U.S. Office of Personnel Management [OPM]

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

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