Eleventh Circuit Rules that Workers’ Compensation Does Not Replace FMLA Obligations
On April 6, 2021, the United States Court of Appeals for the Eleventh Circuit (the appellate court) ruled in Ramji vs. Hospital Housekeeping Systems that an employer cannot choose between workers’ compensation laws and federal FMLA obligations.
The plaintiff in the case was an employee of Hospital Housekeeping who injured her knee while at work. Once the employee notified the employer of her injury, the employer gave her time off and light-duty work while she recuperated but did not inform her of her rights under FMLA and did not place her on FMLA leave. She was paid in accordance with workers’ compensation regulations while she was on leave. When she returned to work, the employer tested her to see if she could perform the essential functions of her job. When she failed the test, she was fired.
The employee sued the employer, alleging that the employer violated FMLA when she was placed on leave to recuperate for a short time and then subsequently fired. The employer argued that it treated the injury as a workers’ compensation claim and had complied with workers’ compensation regulations. The employer also asserted that it did not believe that the employee qualified for FMLA because she received clearance from her doctor after taking a few days off and returned to work. In addition, the employer stated that the employee needed to inform it of her need for FMLA leave and did not do so.
The trial court agreed with the employer. However, the appellate court ruled that the employer did not comply with its obligations under FMLA even if it complied with workers’ compensation regulations. FMLA provides eligible employees with 12 weeks of unpaid leave with job protection upon return from that leave. The appellate court determined that the nature of the employee’s injury and the fact that she requested leave to deal with it provided the employer with enough information to determine that she qualified for FMLA. The employer was then obligated to inform her of her rights and responsibilities under FMLA as well as her eligibility for FMLA leave. The employer could not choose between providing the employee with FMLA or with workers’ compensation benefits (in fact, FMLA provides that it runs concurrently with workers’ compensation) and cannot require an employee to accept light duty work in lieu of FMLA leave. The court determined that doing these things interfered with the employee’s right to FMLA.
The appellate court ruling does not resolve the case; rather, it resolved a Motion for Summary Judgement filed by the employer, which would have ended the litigation based upon a determination that the employer wins on the law. If the court had ruled in favor of the employer, the litigation would likely have ended there. However, this ruling allows the plaintiff to resume her litigation in the trial court. It is possible that the trial court and subsequent appeals may change the outcome of the case. However, this case is an instructive reminder to employers about their obligations under FMLA to inform employees of their rights and responsibilities under the law and that doing so is not optional.
Joint Committee on Taxation Publishes a Report on Present Law and Background on Dependent Care and Paid Leave
On April 19, 2021, the Joint Committee on Taxation released its Present Law and Background on Dependent Care and Paid Leave in preparation for the April 21, 2021, public hearing held by the House Committee on Ways and Means. The report describes the legal background, empirical data and policy considerations related to topics considered in the hearing which include, among other topics, various federal tax rules related to employer-provided dependent care assistance programs (DCAPs) and paid family and medical leave.
The report provides a detailed summary on the legal background of DCAPs (including recent temporary provisions related to COVID-19). Highlights of the overview are included below.
- The excludable amount from an employee’s gross income is generally limited to $5,000 ($2,500 in the case of married individuals filing separately). Temporary relief provided by the American Rescue Plan Act of 2021 (ARPA) permits an increase in the excludable amount to $10,500 ($5,250 in the case of married individuals filing separately) for calendar year 2021 only.
- DCAPs permit an employer to allow a spend-down provision. This means that participants who have ceased participation in a DCAP can apply remaining unused amounts to expenses incurred through the last day of that plan year (including any grace period).
- Generally, a DCAP is not permitted to allow a carryover. However, the special rules for plan years ending 2020 and 2021 related to COVID-19 permit unused balances to be carried over into the subsequent plan year, as provided by the Consolidated Appropriations Act of 2021 (CAA). In addition, a DCAP may extend the grace period applicable to DCAPs to 12 months after the end of the plan year for plan years ending in 2020 and 2021 per the CAA.
- The CAA modified the definition of qualifying individual to include a dependent who has not yet reached the age 14 (normally the cutoff is age 13). This applies to employees enrolled in a DCAP for the plan year for which the end of the enrollment period was on or before January 31, 2020 (including any grace period).
- For plan years ending in 2021, an employer can choose to permit employees to make prospective DCAP election changes.
DCAP amounts are reported on the employee’s Form W-2, Wage and Tax Statement, Box 10, for the taxable year in which the dependent care services were provided.
Paid Family and Medical Leave
The report also elaborates on the employer credit for paid family and medical leave. Employers who provide family and medical leave to their employees may complete Form 8994 to claim a credit. To claim the leave, employers must have a written policy that provides at least two weeks of paid leave to full-time employees (prorated for part-time employees), and the paid leave must be at least 50% of the wages normally paid to the employee. Family and medical leave, for purposes of this credit, is leave granted by the employer in accordance with written policy for one or more of the following reasons:
- Birth of an employee’s child and to care for the child
- Placement of a child with the employee for adoption or foster care
- To care for the employee’s spouse, child or parent who has a serious health condition
- A serious health condition that makes the employee unable to do the functions of their position
- Any qualifying exigency due to an employee’s spouse, child or parent being on covered active duty (or having been notified of an impending call or order to covered active duty) in the US armed forces
- To care for a service member who’s the employee’s spouse, child, parent or next of kin
The credit is a percentage of the amount of wages paid to a qualifying employee while on family and medical leave for up to 12 weeks per taxable year. The applicable percentage falls within a range from 12.5% to 25%. An employer can claim credit only for leave taken after the written policy is in place, and the credit is now scheduled to expire December 31, 2025.
Notably, this tax credit is different than the COVID-19-related tax credits for paid leave provided via the FFCRA, CAA and ARPA. The temporary COVID-19 guidance provides that certain employers who pay sick or family leave wages for specified reasons can receive a corresponding payroll tax credit. Under the FFCRA, the paid leave provisions were effective from April 1, 2020, through December 30, 2020 (and required for certain employers); the CAA permitted employers to choose to extend such leave through March 31, 2021; and the ARPA once again extended the leave through September 30, 2021 (also optional for employers). If employers choose to provide this paid leave in 2021, they are eligible for the associated payroll tax credits.
ARPA further provided an additional 80 hours of emergency paid sick leave (EPSL); increased the amount of expanded FMLA (EFMLA) to $12,000 (was $10,000); permits the time it takes to receive or recover from the COVID-19 vaccination as a qualifying reason for EPSL; and all the qualifying reasons for EPSL are now permitted for EFMLA.
Finally, policy considerations regarding employer-provided family and medical leave are discussed – including different leave options such as a public option, through the workplace via employer mandates and providing employer incentives – and the impact to tax efficiencies of each option. The report also includes data on the percentage of certain workforces that have access to different types of leave. Paid leave continues to be a benefit that policymakers are considering for employees.
While this is not new guidance, the report serves as a good reminder of rules and temporary relief provisions applicable to DCAPs and paid family and medical leave.
IRS Publishes Guide on Retirement Plan Options for Tax-Exempt Employers
The IRS published a revised Publication 4484, Choose a Retirement Plan for Employees of Tax-Exempt and Government Entities. In this edition of the publication, the IRS reviews eight types of retirement plans available to employees of tax-exempt entities such as churches or charities. The publication provides the latest tax laws specific to each retirement plan and has been revised to reflect 2021 annual limitations.
The publication also provides basic information about each plan's benefits in the form of a summary table, which helps tax-exempt entities find the plans that best fit them and their employees. It allows users to click on the plan tabs to view and compare the complete details on each plan. It also provides a list of other IRS publications that may provide helpful information and resources for establishing retirement plans.
The publication's goal is to show tax exempt and government entities that offering a retirement plan helps employees save for the future and may also help an organization attract and retain qualified employees.
IRS Releases Final Form 5310 Instructions
On April 22, 2021, the IRS released the final instructions for Form 5310, Application for Determination for Terminating Plan. The instructions are updated periodically to reflect any regulatory or reporting changes.
A plan sponsor of a terminating retirement plan has the option of filing Form 5310 to request an IRS determination on the plan’s qualification status at the time of termination. The issuance of a favorable letter provides assurance that eligible participant distributions can be rolled over to another qualified plan or individual retirement account.
The instructions delineate how the form should be completed and describe the necessary supporting documentation. The form and instructions were updated for completion on pay.gov. (As of August 1, 2021, the Form 5310 must be completed electronically on the government website. From April 16, 2021, through July 31, 2021, submissions may be made on paper or electronically.)
Employers that sponsor retirement plans may want to be aware of the updated form instructions.
DOL Issues FAQs and Additional Guidance on Fiduciary Investment Advice
On April 13, 2021, the DOL issued guidance on fiduciary investment advice for retirement investors, employee benefit plans and investment advice providers. As a reminder, the DOL adopted prohibited transaction exemption (PTE) 2020-02, Improving Investment Advice for Workers & Retirees, in December of 2020. The DOL announced on February 12, 2021, that the prohibited transaction exemption for investment advice fiduciaries would go into effect as scheduled on February 16, 2021. (See our article in the February 18, 2021, edition of Compliance Corner for more information.)
The issued FAQs address PTE 2020-02 and provide information about the DOL’s next steps in its regulation of investment advice. The major sections of the FAQs address the PTE’s background, compliance dates, definition of fiduciary investment advice and compliance with the PTE generally. Importantly, Question #3 indicates that Field Assistance Bulletin 2018 (which outlined the DOL’s temporary enforcement policy) will remain in place until December 20, 2021. Question #5 also mentions that the DOL is reviewing issues of fact, law, and policy related to the PTE, and anticipates taking further regulatory action as appropriate. Questions 10 – 20 outline what investment advisors must do to comply with the PTE, specifically verifying the impartial conduct standards that must be met. Question #21 describes how the DOL will enforce compliance with the PTE.
The DOL also provided a set of FAQs that explains how individuals should go about selecting an investment adviser. The FAQs recommend that individuals ask if their financial advisers are fiduciaries and whether they are in compliance with PTE 2020-02. It also suggests questions concerning fees that will be charged and potential conflicts of interest.
Ultimately, employers should work with their service providers to ensure compliance with PTE 2020-02. They can also point participants to the FAQs concerning choosing an investment adviser.
DOL Provides Guidance on Cybersecurity Best Practices
On April 14, 2021, the DOL’s Employee Benefits Security Administration provided guidance to plan sponsors, fiduciaries, record keepers and plan participants on cybersecurity best practices. This was done in an effort to protect American workers’ retirement benefits. This novel guidance was provided through three documents: 1) Tips for Hiring a Service Provider; 2) Cybersecurity Program Best Practices; and 3) Online Security Tips.
Tips for Hiring a Service Provider. This document assists plan sponsors and fiduciaries in selecting a service provider with strong cybersecurity practices. ERISA requires plan fiduciaries to monitor service providers to ensure that they are maintaining plan records and keeping participant data confidential and plan accounts secure. The DOL suggests several tips that plan sponsors can follow in ascertaining a service provider’s cybersecurity practices.
Cybersecurity Program Best Practices. This document provides a list of best practices for use by recordkeepers and other service providers responsible for plan-related IT systems and data. Plans’ service providers should:
- Have a formal, well documented cybersecurity program
- Conduct prudent annual risk assessments
- Have a reliable annual third-party audit of security controls
- Clearly define and assign information security roles and responsibilities
- Have strong access control procedures
- Ensure that any assets or data stored in a cloud or managed by a third-party service provider are subject to appropriate security reviews and independent security assessments
- Conduct periodic cybersecurity awareness training
- Implement and manage a secure system development life cycle program
- Have an effective business resiliency program addressing business continuity, disaster recovery and incident response
- Encrypt sensitive data, stored and in transit
- Implement strong technical controls in accordance with best security practices
- Appropriately respond to any past cybersecurity incidents
Online Security Tips. This document is geared towards plan participants and beneficiaries and provides tips on reducing the risk of fraud and loss when accessing their retirement accounts online. The document encourages individuals to:
- Register, set up and routinely monitor their online account
- Use strong and unique passwords
- Keep personal contact information current
- Close or delete unused accounts
- Be wary of free Wi-Fi
- Beware of phishing attacks
- Use antivirus software and keep apps and software current
- Know how to report identity theft and cybersecurity incident
Employers should familiarize themselves with the DOL’s suggestions pertaining to cybersecurity. The guidance indicates that the DOL considers this an element of plan sponsors’ fiduciary duties, so employers should work to minimize the risk of cybersecurity breaches.
I heard “new” mental health parity requirements regarding non-quantitative treatment limitations (NQTLs) went into effect this year. What are NQTLs? How does a plan comply with the requirements?
The Consolidated Appropriations Act of 2021 (CAA) amended the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) by imposing new obligations on group health plans. These additional requirements went into effect on February 10, 2021.
Under the MHPAEA, financial requirements (e.g., deductibles and copayments) and treatment limitations imposed on mental health or substance use disorder (MH/SUD) benefits cannot be more restrictive than those applied to medical/surgical benefits. Nor can separate treatment limitations be imposed only on MH/SUD benefits.
The MHPAEA applies not only to quantitative treatment limitations (e.g., number of visits or days of coverage), but also to non-quantitative treatment limitations (NQTLs) that affect the scope and duration of treatment. NQTLS include, but are not limited to:
- Medical management standards that limit or exclude benefits based on medical necessity
- Experimental treatment exclusions
- Prior authorization or ongoing authorization requirements
- Step therapy protocols (e.g., requiring lower cost drugs to be prescribed before more expensive options)
- Methods for determining usual, customary and reasonable charges for out-of-network (OON) services
- Standards for providing access to OON providers
- Standards for provider admission to participate in a network, including reimbursement rates
- Restrictions based on geographic location, facility type or provider specialty
Since the MHPAEA’s enactment, plan sponsors have been required to review the plan’s written terms and operations to ensure that the processes and standards applied to NQTLs for MH/SUD benefits are comparable to those applied to medical/surgical benefits. The following are examples of NQTLS that would appear to be problematic:
- MH/SUD pre-authorization requirements are stricter than those for medical/surgical benefits
- Medical necessity criteria apply differently to MH/SUD services as compared to medical/surgical services
- Concurrent review (i.e., review of the necessity of care while the patient is receiving treatment) or retrospective review (i.e., after treatment has been provided) occurs regularly for MH/SUD services but not for medical/surgical services
- OON reimbursement rates for MH/SUD services are based upon lower percentages of usual, customary and reasonable charges than the percentages used to determine medical/surgical OON reimbursement rates
Under the CAA, plans must conduct and document their NQTL comparative analysis and be prepared to provide it to federal or state regulators upon request. Additionally, the written analysis must be made available to participants upon request. Amongst other items, the analysis must describe each NQTL, the plan benefits to which the NQTL applies, and the factors (e.g., high variability in cost of care, lack of clinical efficacy of a treatment) and sources (e.g., internal claims analysis, medical expert review) upon which the NQTL is based.
For example, a plan that imposes a concurrent review requirement on certain treatments might explain that the NQTL was applied because of a lack of medical literature to support the treatment’s effectiveness. In such case, the plan documents and records must also show that the requirement was applied consistently to both MH/SUD services and medical/surgical services.
Accordingly, plan sponsors should consult with their carriers and/or third-party administrators to ensure that the required NQTL comparative analysis has been completed and is available in written form.
To learn more about the MHPAEA requirements, please review our recent Compliance Corner article Federal Health Updates.
April 27, 2021
San Francisco HCSO Annual Reporting Waived for CY 2020
On April 21, 2021, the San Francisco Board of Supervisors approved an ordinance waiving the annual reporting requirement for calendar year 2020 related to the San Francisco Health Care Security Ordinance (HCSO). This supersedes the previous guidance issued by the San Francisco Office of Labor Standards Enforcement on March 24, 2021, which postponed the reporting for at least six months.
As background, employers with 20 or more employees must meet a minimum healthcare spending requirement on employees working at least eight hours in the city or county of San Francisco. Normally, an employer must file a report detailing their compliance by April 30 for the previous calendar year. However, the annual report has now been waived for calendar years 2019 and 2020 due to COVID-19 and the administrative burden the report places on employers. Employers should continue to comply with the spending requirement and maintain documentation.
April 27, 2021
Nondiscrimination Standards in Insurance Expanded
On April 13, 2021, Gov. Carney signed SB 32 into law. The new law, effective immediately, expands the nondiscrimination standards in insurance. Specifically, a carrier may not discriminate in the offer of an insurance policy or the premiums charged based on gender identity or race.
For this purpose, gender identity is defined as a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; provided, however, that gender identity shall not be asserted for any improper purpose.
For this purpose, race is expanded to include traits historically associated with race, including hair texture and a protective hairstyle (such as braids, locks and twists).
Insurers and plan sponsors should be aware of these changes to the nondiscrimination standards.
April 27, 2021
Mandated Coverage for Certain COVID-19 Antibody Therapies
On March 22, 2021, Commissioner Birrane invoked her emergency powers to require health insurance carriers to provide coverage for monoclonal antibody therapies. This includes Bamlanivimab and the combination of Casirivimab and Imdevimab. Any cost sharing, including copayments, coinsurance and deductibles must be waived.
Although this mandated coverage applies to health insurance carriers, employer plan sponsors should be aware of this change.
April 27, 2021
Mini-COBRA Premium Assistance
On April 16, 2021, the Division of Insurance announced the premium assistance available to individuals under the American Rescue Plan Act of 2021 (ARPA). Massachusetts’ announcement reiterated that the ARPA provides premium assistance to individuals on federal COBRA and Massachusetts “mini-COBRA.” The assistance is available for April 1, 2021, through September 30, 2021, and eligible individuals should receive a notice from their employer.
The notice also mentions that Massachusetts residents will have a special enrollment period to enroll on the Massachusetts exchange (Health Connector) when their federal COBRA subsidy expires after September.
Massachusetts employers should comply with ARPA, as applicable.
Updated Guidance on Telehealth Services
On April 9, 2021, Commissioner Anderson released Bulletin 2021-04, supplementing and superseding Bulletin 2020-04 (Emergency Measures to Address and Stop the Spread of COVID-19). Chapter 260 of the Acts of 2020 was passed after that, and requires coverage for telehealth services within insured health plans issued or renewed in the state.
Until the Division of Insurance promulgates rules regarding telehealth services, providers should comply with Bulletin 2020-04’s requirements. One notable exception is that Chapter 260 allows carriers to undertake utilization review, including preauthorization to determine the appropriateness of telehealth as a means of delivering healthcare services, if the determination is made in the same manner as if the services were delivered in person. However, the division expects carriers not to make changes until they provide the division with an implementation plan.
Carriers are also expected to provide clear communication materials to in-network providers to explain how to submit reimbursement claims for telehealth services. Additionally, they must reimburse providers for services delivered via telehealth at a rate that is no less than the reimbursement required under Chapter 260.
Although this guidance affects insurance carriers, employers should be aware of these mandates.
Updated Guidance on COVID-19 Treatment
On April 2, 2021, Commissioner Anderson released Bulletin 2021-03, supplementing and superseding Bulletins 2020-10 (Credentialing and Prior Authorization during COVID-19) and Bulletin 2020-13 (Coverage for COVID-19 Treatment and Out-of-Network Emergency and Inpatient Reimbursement During the COVID-19 Health Crises).
The bulletin reminds carriers that they are expected to provide coverage and forgo any cost sharing for medically necessary outpatient COVID-19 treatment and rehabilitation services delivered by in-network providers. When the services are provided in an emergency department, there also should not be any cost sharing whether in-network or out-of-network. Additionally, all in-network providers must be reimbursed at that contractually allowed amounts.
The Division also expects carriers to suspend any prior authorization requirements and to provide inpatient hospitals with up-to-date lists of in-network rehabilitation hospitals and skilled nursing facilities. The bulletin also explains how carriers are expected to reimburse out-of-network acute care hospitals and the out-of-network providers providing emergency department and inpatient services.
Although this guidance affects insurance carriers, employers should familiarize themselves with this guidance.
April 27, 2021
Extension of Transitional Policies
On April 21, 2021, Director of Insurance Dunning released a notice on the extension of transitional policies, extending the ability of health insurance carriers in the individual and small group market to continue transitional health insurance plans through calendar year 2022.
On January 19, 2021, CMS provided guidance for a transition policy extension that allows insurers the option to renew non-grandfathered non-ACA-compliant plans, as long as the state allows for such an extension. Such transition policies are not required to be in compliance with certain ACA mandates including community rating, coverage of essential health benefits, prohibition on pre-existing condition exclusions and the annual out-of-pocket maximum limit. This bulletin applies this most recent federal extension to the state and allows the issuer to renew these non-ACA compliant plans.
Small employers that are interested in renewing their non-ACA-compliant plan should work with their advisors and insurers.
April 27, 2021
Extension of COVID-19 Special Enrollment Period
On April 12, 2021, Commissioner Caride released Bulletin No. 21-07, extending the special enrollment period (SEP) on the state exchange as a part of New Jersey’s ongoing response to the COVID-19 pandemic and following the passage of the American Rescue Plan Act of 2021. The SEP will now be in effect through November 30, 2021. As background, individuals may usually only elect coverage through the state exchange (Get Covered New Jersey) during open enrollment or special enrollment periods.
During this SEP, individuals who are not already enrolled in an individual health benefits plan can apply for coverage through the exchange or directly through carriers. The SEP will also allow individuals who are already enrolled in a health benefits plan to replace their coverage with coverage on the exchange. The coverage will be effective no later than the first of the next month after an individual’s enrollment.
Although this change affects the individual market, employers should keep this in mind as it would likely create a qualifying event that would allow for an employee to potentially drop employer coverage (for themselves or their dependents) to go on the New Jersey exchange.
April 27, 2021
Coverage for Telemedicine Expanded
On March 24, 2021, Gov. Northam signed HB 1987 into law. The new law, effective July 1, 2021, states that a healthcare provider may prescribe a Schedule II through VI controlled substance via telemedicine if the provider maintains a physical location in Virginia or is able to make referral to a licensed provider in Virginia to ensure an in-person examination if required by the standard of care.
Additionally, the healthcare provider must have an established relationship with the patient as evidenced by the following criteria:
- The patient has provided a medical history that is available for review by the prescriber.
- The prescriber obtains an updated medical history at the time of prescribing.
- The prescriber makes a diagnosis at the time of prescribing.
- The prescriber conforms to the standard of care expected of in-person care as appropriate to the patient's age and presenting condition, including when the standard of care requires the use of diagnostic testing and performance of a physical examination, which may be carried out using peripheral devices appropriate to the patient's condition.
- The prescriber is actively licensed in Virginia and authorized to prescribe.
- If the patient is a member or enrollee of a health plan or carrier, the prescriber has been credentialed by the health plan or carrier as a participating provider and the diagnosing and prescribing meets the qualifications for reimbursement by the health plan or carrier.
- Upon request, the prescriber provides patient records in a timely manner in accordance with state and federal laws and regulations.
- The establishment of a bona fide practitioner-patient relationship via telemedicine is consistent with the standard of care, and the standard of care does not require an in-person examination for the purpose of diagnosis.
- The establishment of a bona fide practitioner patient relationship via telemedicine is consistent with federal law and regulations and any waiver thereof.
Employers should be aware of these developments.
April 27, 2021
Extension of Emergency Orders on COVID-19 Testing and Surprise Billing
On April 16, 2021, Gov. Kreidler issued orders further extending emergency orders 20-01 and 20-06. Emergency Order 20-01, which has been extended through May 16, 2021, requires health insurers to waive copays and deductibles for COVID-19 testing. The order also requires insurers to allow a one-time early refill for prescription drugs.
Emergency Order 20-06, which has also been extended through May 16, 2021, protects consumers from receiving surprise bills for lab fees related to COVID-19 diagnostic testing. The order also encourages insurers to report out-of-network labs that are not publishing or honoring the cash price of COVID-19 diagnostic testing.
These orders apply to insurers but provide employers with information about the continued coverage of COVID-19 testing.
This material was created by PPI Benefit Solutions to provide accurate and reliable information on the subjects covered but should not be regarded as a complete analysis of these subjects. It is not intended to provide specific legal, tax or other professional advice. The service of an appropriate professional should be sought regarding your individual situation. PPI does not offer tax or legal advice. "PPI®" is a service mark of Professional Pensions, Inc., a subsidiary of NFP Corp. (NFP). All rights reserved.
Industry news topics covered in the Compliance Corner are chosen based on general interest to most employers and may include articles about services not available through PPI.
I heard “new” mental health parity requirements regarding non-quantitative treatment limitations (NQTLs) went into effect this year. What are NQTLs? How does a plan comply with the requirements?