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Health & Welfare Plans Newsletter

February 15, 2023

2 New Job Opportunities 2 New Job Opportunities


[Official Guidance]

Text of DOL FAB 2023-01: Telework Under the Fair Labor Standards Act and Family and Medical Leave Act (PDF)

"Employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.... When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Thus, if 50 employees are employed within 75 miles from the employer's worksite ... the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite."  MORE >>

Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

[Official Guidance]

Text of DOL Opinion Letter FMLA2023-1-A: Employer Obligations Under FMLA and ADA When Considering Employees' Requests to Work a Reduced Schedule (PDF)

"[An] eligible employee with a serious health condition that necessitates limited hours may use FMLA leave to work a reduced number of hours per day (or week) for an indefinite period of time as long as the employee does not exhaust their FMLA leave entitlement.... The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave.... [If] the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.... [T]he requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously."  MORE >>

Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

[Guidance Overview]

End of COVID-19 Emergencies: Impact on Group Health Plans

"Group health plans face key decisions on coverage related to COVID-19 as the national emergencies are scheduled to end on May 11, 2023."  MORE >>

Willis Towers Watson

[Guidance Overview]

Agencies Propose Universal Contraceptive Coverage in Response to Roe Reversal

"The individual contraceptive arrangement established by the proposed rule would not require any involvement on the part of an objecting entity. Rather, providers or facilities that furnish contraceptive services could be reimbursed by offsets to their liability user fee adjustment. Notably, the proposed rule would leave in place the existing religious exemption for entities and individuals with religious, though not moral, objections."  MORE >>

McDermott Will & Emery

To Pay or Not to Pay Military Leave? Ninth Circuit Leaves Jury to Decide USERRA Comparability Analysis

"Generally, when determining whether a non-military leave is comparable, an employer should consider duration, purpose, and control. The district court considered the leave's frequency as an integral part of the duration analysis and disregarded conflicting evidence and factual disputes about the purpose of military leave and the ability of pilots to control when they take military leave. The Ninth Circuit also reiterated that duration is the most significant factor in the comparability analysis." [Clarkson v. Alaska Airlines, Inc., No. 21-35473 (9th Cir. Feb. 1, 2023)]  MORE >>


Strike Two: Court Again Invalidates No Surprises Dispute Resolution Procedure

"A district court has again struck down significant portions of dispute resolution provisions in regulations under the No Surprises rules, despite revisions to those rules aimed to address concerns previously raised by the court. The court's ruling strips away some of the procedural guidelines for arbitrators in evaluating evidence presented in No Surprises disputes and leaves more to an arbitrator's discretion." [Texas Medical Association v. HHS, No. 22-372 (E.D. Tex. Feb. 6, 2023)]  MORE >>

Ballard Spahr LLP

ERISA Advisory Council Report: Cybersecurity Issues Affecting Health Benefit Plans (PDF)

55 pages, Dec. 2022. "The [Council's] examination identified issues and vulnerabilities affecting these plans and faced by plan sponsors, fiduciaries, and service providers, as well as how those may differ by plan size. The Council also examined existing relevant frameworks, approaches and initiatives tailored to health care and health plan cybersecurity concerns and the interaction between overlapping regulatory regimes for health plans.... [T]he Council made six recommendations for DOL to consider."  MORE >>

Advisory Council on Employee Welfare and Pension Benefit Plans, Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Comparison of Prices for Commonly Administered Drugs in Employer-Sponsored Insurance Relative to Medicare

"ESI plans paid more than 30 times as much as Medicare per unit of midazolam and more than 20 times as much for ondansetron in 2020. Five other top use drugs had ESI prices more than 200% higher than Medicare prices ... The ESI markups were not clearly associated with the presence of biosimilars or approval year."  MORE >>

JAMA Health Forum

Do Minimum Wage Laws Affect Employer-Sponsored Insurance Provision?

"[The authors] find that a $1 increase in minimum wages is associated with a 0.90 percentage point (p.p.) decrease in the percentage of employers offering health insurance, largely driven by small employers and employers with more low-wage employees. A $1 increase is also associated with a 1.80 p.p. increase in the prevalence of plans with a deductible and three percent increase in average deductibles."  MORE >>

Mark Meiselbach and Jean Marie Abraham via SSRN

Trends Driving Successful Enrollment Outcomes and Improved Benefits Administration Technology

"Given the improvements in benefits administration technology, including support tools driven by artificial intelligence (AI), [this] survey reinforced that there still is a large amount of time and organizational resources dedicated to the administration of benefits, particularly for employers of fewer than 500 employees.... [T]here does seem to be room for improvement in utilizing intelligence from enrollment into annual strategic benefits planning."  MORE >>


CMS Proposes Medicare, Medicaid Programs to Cut Drug Costs, Including $2 Generics

"The proposed models would lower the out-of-pocket cost of commonly used generic drugs for chronic conditions, such as hypertension, to $2 a month for people on Medicare, improve access to expensive lifesaving cell and genetic treatments for those on Medicaid, and get CMS better deals for expensive new therapies that lack complete clinical trial data, CMS said."  MORE >>

Reuters; free registration may be required

Benefits in General

[Guidance Overview]

ERISA Civil Penalties Inflation Adjustment Act Annual Adjustments for 2023

"The [DOL's] Civil Penalties Inflation Adjustment Act Annual Adjustment for 2023 final rule was published in the January 13, 2023 Federal Register. [This article includes] a table that reflects the 2023 and 2022 civil money penalty amounts."  MORE >>

Butterfield Schechter LLP

[Guidance Overview]

Civil Monetary Penalties 2023

"The increased amounts will apply to penalties assessed after January 15, 2023.... The increases for 2023 are significant, which is consistent with other inflation adjustments for 2023."  MORE >>

HUB International

ERISA Advisory Council Report: Cybersecurity Insurance and Employee Benefit Plans (PDF)

52 pages, Dec. 2022. "The Council concluded that the topic of cybersecurity insurance generally and as it relates to employee benefit plans is complex and nuanced. Accordingly, the Council recommends that the Department study this topic further. The Council also found that the issue of insurance coverage for losses relating to cyber incidents might not be well understood by benefit plan fiduciaries ... [and] recommends that the Department ... develop education for plan fiduciaries regarding cyber and other insurance to protect against losses resulting from cyber incidents."  MORE >>

Advisory Council on Employee Welfare and Pension Benefit Plans, Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Projected Savings Medicare Beneficiaries Need for Health Expenses Remained High in 2022

"A 65-year-old man enrolled in a Medigap plan with average premiums will need to have saved $96,000 in order to have a 50 percent chance of having enough to cover premiums and median prescription drug expenditures, and a woman will need to have saved $116,000.... Couples enrolled in a Medigap plan with average premiums, meanwhile, will need to have saved $212,000 to have a 50 percent chance of covering their medical expenditures in retirement and $318,000 to have a 90 percent chance.... Although there is significant individual-level variation, enrollees in Medicare Advantage plans generally have lower savings targets."  MORE >>

Employee Benefit Research Institute [EBRI]

Employee Benefits Jobs

View job as Client Support Manager (Contact Center)
            for 401k Generation

Client Support Manager (Contact Center)

401k Generation

Hybrid / Altamonte Springs FL

View job as Client Support Manager (Contact Center) for 401k Generation

View job as Retirement Plan Administrator - PEPs
            for The Platinum 401k, Inc./American Pension Services, LLC

Retirement Plan Administrator - PEPs

The Platinum 401k, Inc./American Pension Services, LLC

Hybrid / Remote / Clearwater FL

View job as Retirement Plan Administrator - PEPs for The Platinum 401k, Inc./American Pension Services, LLC

Press Releases

DCIIA Elects 2023 Executive Committee

Defined Contribution Institutional Investment Association [DCIIA]

Schlichter Bogard & Denton Managing Partner Jerry Schlichter Recognized as One of the Ten Most Impactful People in the 401(k) Industry

Schlichter, Bogard & Denton, LLP

Webcasts and Conferences
(Health & Welfare Plans)

Facts and Trends: Supporting Caregivers in the Workplace

April 11, 2023 WEBINAR

Disability Management Employer Coalition [DMEC]

Navigating the Intersection of Paid Leave and Disability Plans

April 12, 2023 WEBINAR

Disability Management Employer Coalition [DMEC]

Last Issue's Most Popular Items

The Consolidated Appropriations Act's Objective Is to Make You a Health Plan Fiduciary


Weight Loss Drugs and Employee Wellness

HUB International

Reactions to the Latest in Wit v. United Behavioral Health

Behavioral Health Business

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

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