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Managing FMLA Leaves: Medical Certifications Are Critical But Not Necessarily Controlling

"In making the determination of whether an absence is covered by the FMLA, employers must recognize that the medical certification only represents the health care provider's 'best estimate' of the frequency and duration of the flare-ups that could cause future intermittent absences. Employers should consider whether the absence in question was 'not so far in excess' of the frequency or duration stated in the certification so as to retain FMLA protection." [Davis v. Illinois Dept. of Human Serv., No. 22-2118 (7th Cir. May 14, 2025)]

401(k) Forfeiture Litigation: Implications for Plan Sponsors

"A plan could be amended to prescribe the order priority of forfeiture use rather than allowing the plan administrator to decide.... Another option that maintains some discretion in how forfeitures are used is to amend the plan to unambiguously vest discretion in the plan sponsor (not the administrator) as a plan funding decision and settlor function.... Finally, a plan sponsor could amend the plan to require that, when forfeitures are used to pay administrative expenses, they may only be used to pay administrative expenses that would have otherwise been borne by the employer[.]"

Administration Grants Reprieve from Certain NQTL Requirements

"Plan sponsors and issuers are advised to make good faith efforts to comply with the comparative analysis requirements under the CAA and all other applicable requirements under MHPAEA. Failure to conduct the comparative analysis in accordance with the 2024 Final Rule will not, at this point, result in adverse action from the Departments."

IRS Regs Clarify 403(b) Plans' Obligations to Part-Time Employees

"403(b) plan sponsors should: [1] determine whether any of their employees will qualify as long-term, part-time employees beginning Jan. 1, 2025 ... [2] permit qualifying employees to begin making elective deferrals to the plan beginning Jan. 1, 2025; [3] if the plan includes employer contributions, decide whether LTPT employees will be eligible for these contributions ... [4] if they will be eligible, track their hours of service since Jan. 1, 2023 for purposes of determining their vested interest; and [5] amend the 403(b) plan document if necessary to reflect the new eligibility rules."

Are You a Fiduciary? the New Definition of an Investment Advice Fiduciary

"This memorandum addresses the definition of an 'investment advice fiduciary' under ERISA, the USDOL's official interpretation o­f the definition from 1975 through 2024, the policies underlying the USDOL's transition to the new Retirement Security Rule, the requirements of the rule, and the impact thereof on businesses, investors, and plan sponsors. The memorandum also examines the Retirement Security Rule's chance of survival in the face of current legal challenges."

Recent Developments in the World of Sports Provide Opportunity for Refresher on Code Sections 409A and 457(f)

"Although most executives and employers will never be involved in situations with these dollar figures, the issues under Sections 409A and 457(f) of the Internal Revenue Code implicated by these scenarios are also implicated in many common executive compensation arrangements. The arrangements provide an interesting window for employers and executives to refresh their knowledge of common issues that can arise in their own executive compensation arrangements."

Don't Choke on the Gag Clause Prohibition Compliance Attestation Requirement of the CAA

"Because the group health plan is ultimately responsible for the submission, an employer who contracts with a third-party administrator to complete the attestation on a [self-insured] group health plan's behalf should consider adding contractual language to the agreement providing the employer with protections in the event that the filing is not performed correctly.... For fully insured group health plans, both the insurer and the group health plan are required to annually submit a gag clause attestation."

The Impact of the (Official) End of the COVID-19 National Emergency

"Prior to July 10, 2023, plan sponsors should begin to review and revise their health plan design and related documents with their plan administrators and legal counsel. To the extent that plan documents and participant communications were modified to reflect the temporary National Emergency deadlines, plan sponsors should evaluate whether the documents need to be revised to reflect the end of the National Emergency."

Employer-Sponsored Health Plan Changes for End of COVID-19 National Emergency

"As a result of the end of the National Emergency, the tolling of health plan deadlines based on the Outbreak Period extension will end on July 10, 2023. For example, if an employee's 60-day COBRA election period began on Sept. 1, 2022, the election period will no longer be tolled as of July 10, 2023, and COBRA coverage must be elected within 60 days of July 10. However, if an employee's COBRA election period began on July 5, 2022, tolling will end on July 5, 2023 due to the maximum one-year tolling period, and the 60-day election period will begin on that date."

Cybersecurity Guidance for Retirement Plans

"The DOL's guidance tracks several data privacy and cybersecurity laws enacted throughout the U.S.... [T]he New York SHIELD Act's Cybersecurity mandate, effective in March 2020, requires all organizations holding New York resident electronic data to implement the same administrative, technical and physical safeguards couched as 'best practices' in the DOL's guidance."