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Health & Welfare Plans Newsletter

March 27, 2023


[Guidance Overview]

RxDC Frequently Asked Questions

"Employers are ultimately responsible for ensuring that this reporting is completed on a timely basis. Employers should [1] verify in writing that their carriers/TPAs/PBMs will be preparing and submitting the D2-D8 reports and [2] either prepare and submit the P2 and D1 files for their organization or work with another vendor to complete this submission. Due to the complex requirements within these P2 and D1 files, most employers will need assistance from a vendor or compliance expert to create these reports."  MORE >>

MZQ Consulting, LLC

[Guidance Overview]

NLRB's General Counsel Foreshadows More Expansive Restrictions on Separation Agreements

"On February 21, 2023, the [NLRB] found two routinely standard separation agreement provisions -- confidentiality as to the agreement and non-disparagement -- to be unlawful when included in an agreement offered to an employee.... NLRB General Counsel Jennifer Abruzzo [subsequently] issued guidance in an effort to clarify the scope and impact of that decision. [Memorandum GC 23-05] takes an expansive view ... foreshadowing more restrictions on separation agreement and other employment agreements." [McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023)]  MORE >>

Blank Rome LLP

[Guidance Overview]

NLRB General Counsel Provides Guidance on Non-Disparagement and Confidentiality Provisions in Severance Agreements

"[Memorandum GC 23-05] did not answer directly whether McLaren applies to other types of agreements, such as settlements of claims (though it is safe to assume it does apply), or how the NLRB will treat agreements with other agencies, such as the EEOC, or under state 'MeToo' laws that might not conform to McLaren. " [McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023)]  MORE >>


[Guidance Overview]

NLRB General Counsel Releases Guidance in the Wake of Mclaren Macomb

"[N]otable takeaways from [Memorandum GC 23-05] ... [1] Non-disparagement and confidentiality clauses are not banned; narrowly tailored ones are still considered lawful.... [2] A general disclaimer or savings clause will likely not save overbroad confidentiality or non-disparagement provisions.... [3] Unlawful non-disparagement and confidentiality provisions will likely not invalidate other provisions in a severance agreement.... [4] Mclaren Macomb applies retroactively.... [5] Employers could face liability arising out of providing supervisors overly broad agreements in certain circumstances.... [6] the train does not stop with confidentiality and non-disparagement clauses in severance agreements." [McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023)]

   MORE >>


Understanding Contra Proferentem in ERISA Case Litigation

"[A recent case] illustrates what happens when plan terms are unclear and can have different meanings.... [T]he court began ... by pointing out that 'claims for benefits based on the terms of an ERISA plan are contractual in nature and are governed by federal common law contract principles.' Those principles incorporate the common law of contracts to determine the parties' intent.... [T]he court pronounced that if the contractual terms were ambiguous, an interpretation favoring the policyholder was required[.]" [Stein v. Paul Revere Life Ins. Co., No. 21-3546 (E.D. Penn. Mar. 16, 2023)]  MORE >>

DeBofsky Law

ERISA Case Signals New Theories for Plaintiffs' Bar

"After focusing most of its attention on retirement benefit plans, a recent complaint filed in the District of Connecticut shows that the plaintiffs' bar is turning to health and welfare plans as targets for their new theories of breach of fiduciary duty under ERISA." [Srednicki v. Cigna Health and Life Ins. Co., No. 23-0243 (D. Conn. complaint filed Feb. 24, 2023)]  MORE >>


Ninth Circuit Dismisses Claim Against Welfare Benefit Plan Service Provider for Lack of Article III Standing

"The complaint failed to sufficiently allege any facts suggesting that [the plaintiffs] individually paid higher fees or insurance premiums as a result of Sequoia's alleged actions. Nor did they allege that they did not receive the benefits promised them under the MEWA. Absent any injury to the plaintiffs themselves, they did not have Article III standing based on allegations that they had an 'equitable ownership' in the assets of the MEWA." [Winsor v. Sequoia Benefits & Ins. Servs., LLC, No. 21-16992 (9th Cir. Mar. 8, 2023)]  MORE >>

Dorsey ERISA

45% of Workers 'Too Busy' to Seek Help for Mental Health

"A recent survey found that a further 25% were 'too embarrassed' to do the same, while 22% said they can't afford it."  MORE >>

Benefits in General

[Official Guidance]

IRS Disaster Relief Notice NY-2023-04, for Victims of Severe Winter Storm and Snowstorm in New York

"Victims of the severe winter storm and snowstorm beginning Dec. 23, 2022, and ending Dec. 28, 2022, now have until May 15, 2023, to file various individual and business tax returns and make tax payments ... [I]ndividuals and households affected by the severe winter storm and snowstorm that reside or have a business in Erie, Genesee, Niagara, St. Lawrence, and Suffolk counties qualify for tax relief."  MORE >>

Internal Revenue Service [IRS]

Webcasts and Conferences
(Health & Welfare Plans)

Employee Benefits and Executive Compensation Series, Part 5: Hot Topics and Trends in Payroll for 2023

March 31, 2023 WEBINAR

Ogletree Deakins

Hot Topics in Employee Benefits: What We’re Seeing

April 12, 2023 WEBINAR

Morgan Lewis

Solving the Mental Health Access Problem: The Employer's Path Forward for Mental Health

April 20, 2023 in MD

Worldwide Employee Benefits Network [WEB] - Maryland

Tackling Your FMLA Challenges

June 13, 2023 WEBINAR

Disability Management Employer Coalition [DMEC]

Last Issue's Most Popular Items

No Surprises Act Gives Plan Sponsors Savings Opportunities

Hall Benefits Law

NLRB General Counsel Issues Guidance on Severance Agreement Restrictions

Faegre Drinker

NLRB Issues Aggressive Guidance on Severance Agreement Language

Frost Brown Todd LLC

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

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