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Employer Do's and Don'ts for Applying Accrued PTO to FMLA Leave

" In order to require PTO substitution for FMLA absences, ... the employer's FMLA policy must spell out that requirement. If the policy is silent on the issue, employees may choose whether or not to apply their accrued PTO to any FMLA absences.... In a January 14 Opinion Letter, the [DOL's] Wage and Hour Division addressed what should happen if an employee on FMLA leave is receiving some form of paid family or medical leave under state-based law."

New Year Brings New Proposed Rules Impacting Retirement Plans

"SECURE 2.0 generally requires a new 401(k) plan to contain an 'eligible automatic contribution arrangement' ... Employers creating or buying companies need to be particularly mindful of this requirement. There are several exceptions that might apply but this is (and will be) an easy requirement to miss for employers engaged in heavy merger and acquisition activity.... The proposed rules related to the Roth Catch-Up Requirement would permit a plan to provide that a participant who is subject to the requirement is deemed to have irrevocably designated any catch-up contributions as Roth contributions."

Court Finds No FMLA Retaliation Claim When Employee Submitted Conflicting Medical Reports

"After investigating the circumstances and reviewing Shipton's medical documentation, BGE believed he had been misusing leave.... Shipton's conflicting paperwork and BGE's investigation reasonably gave rise to an honest belief on the part of the employer at the time of his firing that Shipton was misusing FMLA leave -- even if that later turned out not to be the case. Accordingly, the court found in favor of BGE and against Shipton on his FMLA retaliation claim." [Shipton v. Baltimore Gas and Elec. Co., No. 23-1360 (4th Cir. Jul. 31, 2024)]

Fiduciary Committees Offer Shield Against Welfare Plan Litigation

"A slew of lawsuits against retirement plan fiduciaries caused a restructuring of the decision-making process for retirement plans, but the same committee structure, documentation, training, and decision-making process has not always been implemented for welfare plans despite the same fiduciary obligations under the law — and plaintiffs’ lawyers are catching on."

New HIPAA Privacy Standards for Reproductive Health Care: Action Required by Employer Health Plans

"Covered entities must comply with the new privacy standards beginning on December 23, 2024. The delayed compliance date allows time for employers to revise HIPAA privacy policies, procedures, notices, and other HIPAA documentation, as well as train employees who work with protected health information (PHI)."

Lawsuit Alleges J&J Health Plan Fiduciaries Mismanaged Prescription Drug Benefits

"Among other things, plaintiff alleges that prudent fiduciaries ... [1] continually supervise their PBM's actions to ensure that the plan is minimizing costs and maximizing outcomes for beneficiaries; [2] retain sufficient control over their plans' formularies to prevent the PBM from making formulary decisions that serve the PBM's interests but not the plan's interests; ... [3] will replace brand name drugs on the formulary when lower-cost, FDA-approved generics become available; and [4] are aware of the conflicts of interest that PBMs have in making formulary decisions." [Lewandowski v. Johnson & Johnson, No. 24-0671 (D.N.J. complaint filed Feb. 5, 2024)]

Bitcoin ETFs and Workplace Retirement Plans: DOL Has 'Serious Concerns'

"Many of the big institutional investment firms that frequently see their products offered in 401(k) plans, like Fidelity and Blackrock, have created bitcoin ETFs, which will make it easier for investment fiduciaries to add these ETFs as an option in workplace retirement plans.... Plan sponsors should fully understand the fiduciary risk before allowing any plan assets (including through a brokerage window) to be invested in crypto -- including the new ETFs -- and expect to be questioned by the DOL about the prudence of the decision"

Year-End Employee Benefit Plan Considerations

"[K]ey items to consider at this time: [1] Health Plans: Gag-clause attestation due December 31, 2023 ... [2] Retirement Plans: Increased cash-out limit option January 1.... [3] Health Plans: Mental health parity comparative analysis required now.... [4] Retirement Plans: Student loan matching contributions allowed January 1.... [5] Health Plans: PBM legislation increasing costs on employers and employees.... [6] Health Plans: Prescription drug reporting due June 1.... [7] Health Plans: Online shopping tool required for all covered items and services effective January 1.... [8] Health Plans: Prescription drug machine-readable files."

What to Expect (from the Pregnant Workers Fairness Act) When You're Expecting

"Workers may seek accommodations such as ... part-time or modified work schedules; more frequent breaks; ... permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend healthcare-related appointments and to recover from childbirth ... [An] employee or applicant ... need not mention the PWFA; use the phrases 'reasonable accommodation,' 'known limitation,' 'qualified,' 'essential function;' use any medical terminology; or use any other specific words or phrases."

Are Remote Employees Eligible for FMLA Leave?

"For employees working remotely, the DOL's Wage and Hour Division says their work location for counting the number of employees within 75 miles is 'the office to which they report or from which their assignments are made.' Further, you should include in your employee count all other remote employees who report or get assignments from the same location."