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Time to Issue Annual Retirement Plan Notices

"Now that the cost of living adjustments have been issued for 2020, it is time for plan sponsors to finalize and issue their annual notices to participants. The 401(k) safe harbor, qualified default investment alternative (QDIA), and automatic enrollment notices must all be sent to plan participants between 30-90 days before the beginning of the plan year (i.e., no later than December 2nd for calendar year end plans)."

Can You Accelerate Payouts Under Your Deferred Comp Plan?

"The termination of a deferred compensation plan involves both termination of employer and employee deferrals (unless otherwise already frozen) and the acceleration of the payment of accrued benefits. Such permitted plan terminations can only occur in one of three ways: in connection with the employer's insolvency, change in control of the employer, or in accordance with the 409A general plan termination rules."

Does Your Wellness Program Offer a Reasonable Alternative?

"[If] your wellness program requires an individual to satisfy a standard related to a health factor to earn a reward, it must satisfy 5 requirements under HIPAA. The requirements are slightly different if the program is an activity-only program (e.g., reward for walking 10,000 steps a day) or an outcome-based program (e.g., not using tobacco or attaining a certain result on a biometric test)."

Are Your Plans Impacted by the New Regs on Disability Claims?

"The Final Rule governs employee benefit plans subject to ERISA that offer disability benefits, not just disability plans. In addition to disability plans, it is not unusual for a retirement plan to provide disability benefits. It is also common for ERISA-covered benefit plans to waive premiums or provide some other form of benefit in the event of a disability."

The DOL's Final Rule on Disability Claims Procedures: What Changes Do You Need to Make?

"[1] [D]enial notices must contain specific reasons for an adverse determination and basis for departing from previous rulings... [2] [C]laimants must be informed of their right to request and obtain the entire file upon denial of a claim, not just upon denial of an appeal.... [3] [B]enefit denial notices must be updated to include the plan's internal rules, guidelines, protocols and criteria used to adjudicate the claim[.]"

Who Really Loses When a Multiemployer Pension Plan Fails?

"Employers are not in the driver's seat when it comes to multiemployer pension plans. The trustees are charged with making very unpopular and difficult decisions ... Employees, retirees, and the general public will likely blame the employer for these broken promises.... It is possible to make these multiemployer pension plan participants whole. But, the employer faces a gauntlet of regulations, procedures, and potential confusion on the part of the plan participants."

Does Your Plan Document Give Appropriate Discretion to the Plan Administrator?

"With the exception of the 5th Circuit, the Circuit Courts have unanimously interpreted Firestone such that when the plan document provides discretion to the plan administrator, the abuse of discretion standard of review applies to plan interpretations, factual determinations, and the application of the facts to the plan provisions. As illustrated by Ariana M. v. Humana Health Plan of Texas, Inc., the 5th Circuit Court of Appeals treats factual determinations differently.... The takeaway from Ariana is that ERISA plans should make it clear that the discretion afforded to the plan administrator applies to factual determinations, in addition to interpreting the plan provisions and applying the facts to the terms of the plan."

Federal Contractors Still Burdened with Paid Sick Leave Requirements

"The DOL regulations created a complex set of rules that are difficult to understand and administer, which often lead diligent contractors to do more than is necessary out of fear of non-compliance. Which federal contractors are affected by these regulations? ... How is sick leave allocated under the regulations? ... How can paid sick leave be used under the regulations?"

Do You Have Audit Controls to Ensure Access for Terminated Employees is Ended?

"[E]mployers generally have procedures in place that ensure immediate termination of access to an employer's network and computer systems upon the employee's termination of employment.... [Do] you have audit controls in place to ensure the access has been properly terminated? If not, you should put some in place right away, especially if you are a covered entity under HIPAA. And remember not only health care providers are covered entities. Self-funded health plans are also covered entities and subject to the HIPAA privacy and security rules."

Are Your 'Voluntary' Benefit Plans Subject to ERISA?

"[T]here are four requirements of the voluntary plan safe harbor.... The benefit plan must be completely voluntary and employee paid, with no employer contributions made in any form for any employees.... [T]he employer must not endorse the plan. In simple terms if you endorse it, you own it (for purposes of ERISA) ... Finally, under the safe harbor, employers are prohibited from receiving any compensation that exceeds reasonable reimbursement for collecting and remitting premium payments."