On February 23, 2023, the Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS) (the "Agencies") released FAQs addressing the implementation of certain transparency requirements under the Consolidated Appropriations Act of 2021 (CAA).These joint-issued FAQs address additional compliance guidance on the CAA’s annual attestation, prohibiting group health plans from preventing specific disclosures regarding provider cost or quality-of-care information as well as a gag clause prohibition.BackgroundWhen the CAA was enacted by Congress on December 27, 2020, the law included a provision preventing group health plans and health insurance carriers from entering into health plan services contracts (such as a third-party administrator or health care provider contracts) with gag clauses that restrict or prohibit the amount of information shared with plan participants or beneficiaries, but specifically:·       Any provider-specific costs·       Any quality-of-care or specific treatment option information·       Electronic access to de-identified health claims data,…

In light of concerns expressed by plan sponsors and participants alike, the IRS released Notice 2023-62 (“Notice”) which provides a two-year extension on the requirement related to Roth catch-up contributions under SECURE 2.0 Act (“the Act”). Specifically, the Notice states, “The Department of Treasury and the IRS have been made aware of taxpayer concerns with being able to timely implement section 603 of the SECURE 2.0 Act. The administrative transition period described in this notice is intended to facilitate an orderly transition for compliance with that requirement.” Under the Act, all catch-up contributions, e.g., additional contributions permitted for participants aged 50 or older, made to 403(b), 457(b), or 401(k) plans by an employee who earned over $145,000 during the prior year must be made as an after-tax Roth contribution. Initially, this requirement was effective for tax years beginning after December 31, 2023; however, in light of the Notice, plan sponsors…

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that the 2022 EEO-1 Component 1 data collection deadline for employers to submit demographic data. For 2022, data collection will begin on October 31, 2023. Eligible employers have until December 5, 2023, to submit their EEO-1 reports.The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data, including data by race/ethnicity, sex and job categories. The filing by eligible employers of the EEO-1 Component 1 Report is required under section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-8(c),  and 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a). Employers can find additional eligibility information here.Additionally, the EEOC released the EEO-1 Component 1 Instruction Booklet, which can be found…

The IRS released Rev. Proc. 2023-29 on August 23, 2023, announcing a decrease in the ACA Affordability Contribution Rate from 9.12% in 2022 to 8.39% for the 2024 plan year. This is an even greater decrease from what was announced for the 2023 tax year, which was formerly the most significant decrease since the ACA’s commencement. Under the ACA, Applicable Large Employers (ALEs), employers with 50 or more full time and/or full-time equivalent employees, are required to offer affordable minimum value coverage to all full-time employees and their dependents. The contribution percentage is used to determine whether the employer-sponsored health coverage is "affordable" under the ACA’s employer shared responsibility provisions. A plan will be considered affordable under the ACA if the employee’s contribution level for self-only coverage does not exceed the specified percentage of the employee’s household income. Failure to offer affordable coverage may result in employer shared responsibility penalties,…

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a Notice of Proposed Rulemaking around the implementation of the Pregnant Workers Fairness Act (PWFA). The proposed rule, released for inspection August 7, 2023, aims to provide some needed clarification for employees and employers as they navigate the requirements under PWFA.As background, PWFA requires covered employers to provide a “reasonable accommodation” to an employee’s known limitations related to pregnancy, childbirth, or a related medical condition, unless such accommodation would create an undue hardship for the employer. Employees impacted by pregnancy, childbirth or a related medical condition are protected from termination or discrimination under other existing legislation (e.g., ADA, Title VII) as protections under PWFA are specific to the accommodation that is requested. PWFA sets out to fill the gaps within already existing legislation by not limiting the availability of accommodations only to those that can show a pregnancy-related disability or in…

Recently, the Departments of Labor, Treasury, and Health and Human Services (the “Departments”) released new frequently asked questions (FAQs) on the No Surprises Act and the Transparency in Coverage final rules, giving employers more guidance and clarity around health plan out-of-network providers and fee disclosures.Under the Affordable Care Act (ACA), out-of-pocket expenses related to essential health benefits are capped. However, these caps do not apply to out-of-of-pocket amounts related to out-of-network services and items, even if those services and items are covered by the employer-sponsored health plan.On December 27, 2020, the No Surprises Act, which was part of the Consolidated Appropriations Act, 2021 (CAA 21) was signed into law, with the primary goal of prohibiting surprise billings practices for both insured and self-funded health plans.Under the newly released FAQs, which clarify the No Surprises Act, the Departments addressed three areas.Out-of-pocket maximum and facility fees rules under the No Surprises ActThe…

For employers that remotely verified I-9 forms during the pandemic, the deadline for completing in-person verification is fast approaching. As background, the Department of Homeland Security (DHS) had provided additional flexibility due to COVID-19 to review I-9 documentation remotely and had previously announced that employers would have until July 31, 2023, to complete an in-person review of the I-9 documents that had originally been reviewed remotely under this flexibility policy. However, on May 4, DHS announced a 30-day “grace period” that extends the deadline until August 30. While immigration officials have repeatedly extended the I-9 flexibility since initially adopting the policy in March 2020, this recent delay is in the form of a grace period rather than another extension, so employers should plan for the end of the flexibility policy and prepare to comply with the in-person review requirements of I-9s previously reviewed under the remote flexibility policy. The best…

The IRS issued its fourth Chief Counsel Advice 202323006 (the “CCA”) to address the tax treatment of payments made to employees through employer-funded fixed indemnity insurance policies. Specifically, the guidance speaks to how wellness indemnity payments should be treated in the event an employee has unreimbursed out-of-pocket medical expenses related to the payment. The CCA states that under a fixed indemnity health insurance policy, wellness indemnity payments should be included in the employee’s gross income subject to FUTA, FICA and federal income tax withholdings.In the CCA, the IRS provides an example which includes, in part, the following facts: an employer’s fixed indemnity health insurance policy is a voluntary program intended to supplement its employees’ other health coverage through wellness benefits. The policy provides a payment once per month of $1,000 if an employee participates in certain wellness or health activities, which may include preventive care services such as vaccinations. Additionally,…

The Centers for Medicare & Medicaid Services (CMS) has issued guidelines regarding changes to the Mental Health Parity and Addiction Equity Act (MHPAEA) for self-insured non-federal governmental health plans. The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) requires group health plans and health insurance issuers to ensure that financial requirements (such as co-pays, deductibles) and treatment limitations (such as visit limits) applicable to mental health or substance use disorder (MH/SUD) benefits are no more restrictive than the predominant requirements or limitations applied to substantially all medical/surgical benefits. The new guidelines state that these health plans cannot choose to opt out of complying with the MHPAEA if they have not already done so by December 29, 2022. Additionally, any existing opt-out elections that expire 180 or more days after that date cannot be renewed. However, there is a special rule for certain health plans that are collectively bargained.…

Part of the Consolidated Appropriations Act, 2022, effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions. The PWFA covers only accommodations and does not replace federal, state, or local laws that are more protective of workers. Existing laws enforced by the Equal Employment Opportunity Commission (EEOC) protect workers from discrimination or termination based on these conditions.Reasonable accommodations must be made unless the accommodation would impose an undue hardship on the employer's business operations.Covered employers cannot:Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employerDeny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodationRequire an employee to take leave if another reasonable accommodation can…

The Patient-Centered Outcomes Research Institute (PCORI) fee deadline is around the corner. In Notice 2022-59, the IRS adjusted the applicable dollar amount to be multiplied by the average number of covered lives for purposes of calculating the fee for policy years and plan years that end on or after October 1, 2022, and before October 1, 2023. The fee for the forgoing period is $3.00. Although the PCORI fee is based on the plan year, the reporting and fee due date is always July 31. The Affordable Care Act (ACA) requires health insurers and sponsors of self-funded group health plans and HRAs to pay the fee using IRS Form 720.The PCORI fee is based on covered lives. Accordingly, both employees and retirees and their covered spouses and children generally must be counted. The PCORI fee is based on a plan year, with the count determined based on the entire plan year.The PCORI fee…

The IRS issued Revenue Procedure 2023-23, to announce the 2024 inflation adjusted amounts for health savings accounts (HSAs), High Deductible Health Plans (HDHPs) under the Internal Revenue Code (Code) and the maximum amount employers may contribute for excepted benefit health reimbursement arrangements (EBHRAs). Significant increases to the limits are a result of the recent spike in inflation seen in the U.S.The new HSA and HDHP limits will go into effect for calendar year 2024, while the HRA limits go into effect for plan years beginning in 2024.HSA LimitsFor calendar year 2024, the HSA annual limitation on deductions for an individual with self-only coverage under a high deductible health plan is $4,150. The 2024 HSA annual limitation on deductions for an individual with family coverage under a high deductible health plan is $8,300. The IRS guidance provides that for calendar year 2024, a “high deductible health plan” is defined as a…

The Fifth Circuit Court of Appeals has issued a stay on a lower court ruling striking down certain preventive care coverage mandates under the Affordable Care Act. On March 30, 2023, the U.S. District Court in the Northern District of Texas issued its final ruling invalidating provisions of the ACA’s preventive care mandate. Specifically, the ruling generally applies to the requirement that non-grandfathered health plans cover preventive care services recommended by the U.S. Preventive Services Taskforce (USPSTF) after March 23, 2010, with no cost sharing. The Department of Justice almost immediately filed an appeal against the March 30th ruling and requested a stay on any actions resulting from the ruling while the case makes its way through the various levels of appeal. For additional information on this case, please see our blog post here. Depending on the result of the case, plan sponsors may begin seeing changes to their plans…

On March 30, 2023, the U.S. District Court in the Northern District of Texas (Court) issued a final ruling invalidating certain provisions of the Affordable Care Act’s (ACA) preventive care mandate. Although the ultimate outcome of this decision remains to be seen, the ruling has created some confusion for plan sponsors of group health plans and other interested stakeholders. The ruling generally applies to invalidate the requirement that non-grandfathered health plans cover preventive care services recommended by the U.S. Preventive Services Taskforce (USPSTF) with no cost sharing after the effective date of the ACA (March 23, 2010). The Biden administration filed a Notice of Appeal on April 3, 2023, and will presumably seek a stay of this decision from the Fifth Circuit Court of Appeals (Fifth Circuit). A stay would prevent the decision from going into effect until a decision on the merits is issued by the Fifth Circuit or…

On Monday, April 10, 2023, President Biden signed Congress’s jointly-introduced H.J Res. 7 into law, ending the COVID-19 National Emergency immediately instead of on May 11, 2023, as previously announced. However, the Department of Labor (DOL) has unofficially signaled that its previous guidance issued on March 29, 2023, stands, including guidance that the Outbreak Period will end on July 10, 2023. As background, the end of the Outbreak Period is significant because that is the date that plan sponsors are no longer required to offer a one-year extension of deadlines relating to COBRA elections and premium payments, HIPAA special enrollment elections and ERISA claims procedures. With the earlier end to the National Emergency, there has been some confusion regarding whether the July 10, 2023, date is the appropriate end of the Outbreak Period or whether it should be June 9, 2023, which is 60 days after the actual end of…

The Internal Revenue Service (IRS) released Rev. Proc. 2023-17, which outlines the inflation adjustments for the employer shared responsibility payments (ESRP) under the Affordable Care Act (ACA). Under the ACA’s pay or play rules, applicable large employees (ALEs) must offer affordable minimum-value health coverage to their full-time employees or be subject to a penalty. There are two penalty types that may be assessed in the event of non-compliance. 4980H(a): The IRS issues a 4980H(a) penalty when an organization fails to offer Minimum Essential Coverage (MEC) to substantially all (at least 95%) of its full-time employees for any month during the year and has at least one employee obtain a Premium Tax Credit (PTC) / subsidy from the Exchange. This violation is assessed per employee. 4980H(b): The IRS issues a 4980H(b) penalty when an organization offers coverage to substantially all (at least 95%) of its full-time employees; however, the coverage was…

In early February 2023, Governor Phil Murphy signed the Temporary Workers’ Bill of Rights (the Bill) which expands the rights and protections afforded to temporary workers. The Bill is applicable to temporary laborers in a “designated classification placement,” which is defined as an assignment of a temporary laborer by a temporary help service firm to perform work in any of the following occupational categories: (1) food preparation and serving related occupations, (2) building and grounds cleaning and maintenance occupations, (3) construction laborers, (4) helpers, construction trades, (5) installation, maintenance, and repair occupations, (6) production occupations, (7) transportation and material moving occupations, (8) other protective service workers, or any successor categories as the Bureau of Labor Statistics may designate.Among other requirements, the Bill enhances certification requirements for temporary help service firms (which include registering with the Division of Consumer Affairs), additional recordkeeping obligations, creates new notification and wage statement requirements for…

Congress recently passed, through the Consolidated Appropriations Act, 2023, the PUMP for Nursing Mothers Act (the Act) which makes several changes to the Break Time for Nursing Mothers law, enacted in 2010. Under the Break Time for Nursing Mothers law, employers nationwide were required to provide reasonable break time and a private, non-bathroom space for lactating employees to utilize during the workday. The goal of the PUMP Act is to expand these protections and close some of the gaps. Under the Act, employers are required, up to one year after the child’s birth, to provide a reasonable break for an employee to express breast milk each time the employee needs to do so. Specifically, the Act states the requirement for the breaks to be provided “each time,” and anticipates the frequency and duration will depend on factors related to the employee/child.Employers subject to the requirements under the Fair Labor Standards…

On January 30 President Biden issued a statement of policy to Congress in which he announced that the administration plans to end both the National Emergency related to COVID-19 originally declared by President Trump in 2020 and the public health emergency (PHE) declared by the U.S. Department of Health and Human Services (HHS) also in 2020. The ongoing declarations currently are set to expire on March 1 and April 11, respectively. The President’s statement announces the administration’s plan to end both declarations effective as of May 11, 2023. The statement directly addresses two measures currently before Congress – H.R. 382 and H.J. Res. 7 – which call for an immediate end to the respective emergencies. Citing what the administration views as wide-ranging chaos and uncertainty throughout the health care system, for states, hospitals and doctors’ offices, and the general public, if the declarations were to end immediately, the President plans…

In recognition of the changing circumstances related to the COVID-19 pandemic, the EEOC has updated its guidance around conducting testing for on-site employees. Employers covered by the Americans with Disabilities Act must assess whether the current workplace circumstances within their organization justify COVID-19 testing, if they are continuing to test.In determining if they meet the “business necessity” standard for implementing screenings, employers will need to review all relevant facts in light of their current policies and procedures. The guidance provides the following factors for employers to consider:Degree to which breakthrough infections are possible for employees who are “up to date” on vaccinationsThe possible severity of the illness from the current variantThe level of community transmissionThe vaccination status of employeesWhat types of contacts employees may have with others in the workplace; andThe potential impact on operations if an employee enters with COVID-19Many employers have already shifted their COVID-19 policies and procedures…