News & Events

Wednesday, March 24th

American Rescue Plan Act Signed Into Law

The American Rescue Plan Act (ARPA), which is the latest bill to address the ongoing economic impacts of COVID-19, has been signed into law. Most aspects of the law do not directly affect the HR function, but those that do—optional extension of sick and family leave and establishment of COBRA subsidies—are outlined below.

Optional Extension of Sick and Family Leaves

Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes

Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

  • Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
  • Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount.
  • Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes

Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

  • EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
  • The 10-day unpaid waiting period has been eliminated.
  • The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
  • The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
  • Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Reasons for Using EPSL and EFMLA

Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

  1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
  2. When advised by a health care provider to self-quarantine because of COVID-19
  3. When the employee is:
    • Experiencing symptoms of COVID-19 and seeking a medical diagnosis
    • Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis
    • Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
  4. When caring for another person who is isolating or quarantining on government or doctor’s orders
  5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review

The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.

Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA Subsidies

Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work.

Source: ThinkHR


Friday, March 6th

Coronavirus in the Workplace

As the coronavirus (COVID-19), as well as the media coverage surrounding it, continues to spread, we are receiving many questions from clients wondering what they can do to keep their employees safe as well as what is required of them from a liability stand point. To help, we have compiled the following information and resources.

Can coronavirus become a Work Comp claim?

Yes, if an employee contracts the virus during the scope or course of their job duties. For example, employers may be responsible in the following situations:

  • An employee travels or works overseas and contracts the illness.
  • An employee contracts the virus and infects coworkers in the office or on the job site.
  • An employee is assigned to work in a location with infected individuals and becomes infected.

In these scenarios, a Work Comp policy will typically cover lost time, permanent disability, medical expenses, and a death benefit as a result of the coronavirus.

What are my legal obligations as an employer?

Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19. (see HR Compliance Bulletin for more detailed information)

Will our benefits plan cover a coronavirus diagnosis?

While the specific coverages will be dependent on the individual’s plan benefits, most health plans will cover the care an employee would receive if diagnosed with coronavirus, unless otherwise determined by state law or regulation. However, they will still be responsible for any out-of-pocket expenses that their plan requires.

Please view our Carrier Resources for Coronavirus t o see what benefits and resources your specific carrier is providing. For many carriers, utilizing their Telemedicine services is the best first step if you are concerned about symptoms.

Steps you can take to protect and prevent

The Centers for Disease Control and Prevention (CDC) has a dedicated website providing information to businesses and employers. The following actions are recommended:

  • Encourage sick employees to stay home
  • Be more flexible with your sick leave policies
  • Educate employees on preventive measures
  • Keep a good stock of supplies such as tissues, hand sanitizer, and soap
  • Perform routine cleaning of frequently touched areas
  • Advise employees before traveling to take certain steps. If employees are required to travel for business, stay up to date on the CDC’s Traveler’s Health Notices for guidance.

Helpful Materials & Resources

OSHA Safety & Health Topics
CDC: Coronavirus Disease 2019
World Health Organization: Advice for the Public
EDD: Coronavirus 2019 (COVID-19)


Tuesday, December 10th

IRS Extends Deadline for Furnishing Form 1095-C, Extends Good-Faith Transition Relief

The Internal Revenue Service (IRS) has released Notice 2019-63, which extends the deadline for furnishing 2019 Forms 1095-B and 1095-C to individuals from January 31, 2020 to March 2, 2020. The Notice also provides penalty relief for good-faith reporting errors and suspends the requirement to issue Form 1095-B to individuals, under certain conditions. 

The due date for filing the forms with the IRS was not extended and remains February 28, 2020 (March 31, 2020 if filed electronically).
The draft instructions to Forms 1094-C and 1095-C allow employers to request a 30-day extension to furnish statements to individuals by sending a letter to the IRS with certain information, including the reason for delay. However, because the Notice’s extension of time to furnish the forms is as generous as the 30-day extension contained in the instructions, the IRS will not formally respond to requests for an extension of time to furnish 2019 Forms 1095-B or 1095-C to individuals. 

Employers may still obtain an automatic 30-day extension for filing with the IRS by filing Form 8809 on or before the forms’ due date. An additional 30-day extension is available under certain hardship conditions. The Notice encourages employers who cannot meet the extended due dates to furnish and file as soon as possible and advises that the IRS will take such furnishing and filing into consideration when determining whether to abate penalties for reasonable cause. 

Relief from Furnishing Form 1095-B to Individuals
Due to the individual mandate penalty being reduced to zero starting in 2019, an individual does not need the information on Form 1095-B in order to complete his or her federal tax return. Therefore, the IRS is granting penalty relief for employers who fail to furnish a Form 1095-B to individuals, provided that the reporting entity:

  1. Posts a notice prominently on its website stating that individuals may receive a copy of their 2019 1095-B upon request, accompanied by an email address, phone number and a physical address the request can be sent; and
  2. Furnishes an individual with a Form 1095-B within 30 days of a request.

Note that Applicable Large Employers (ALEs) are still required to furnish Form 1095-C to their full-time employees. They must also complete Part III if the employee is enrolled in self-insured coverage. The relief from furnishing Form 1095-B does not extend to IRS reporting. Forms 1095-B must still be submitted to the IRS, as applicable. In general, this relief from furnishing Form 1095-B applies to insurers, and non-ALEs that sponsor self-insured plans, as they complete Form 1095-B for covered participants.

Extension of Good-Faith Relief
As with calendar year 2015 – 2018 reporting, the IRS will not impose penalties on employers that can show that they made good-faith efforts to comply with the requirements for calendar year 2019. In determining good faith, the IRS will consider whether employers have made reasonable attempts to comply with the requirements (e.g., gathering and transmitting the necessary data to an agent or testing its ability to transmit information) and the steps that have been taken to prepare for next year’s reporting.
Note that the relief applies only to furnishing and filing incorrect or incomplete information, and not to a failure to timely furnish or file. However, if an employer is late filing a return, it may be possible to get penalty abatement for failures that are due to reasonable cause and not willful neglect. In general, to establish reasonable cause the employer must demonstrate that it acted in a responsible manner and that the failure was due to significant mitigating factors or events beyond its control. The IRS has been enforcing late filing penalties via Letter 972CG, which may include penalties based on failed to file electronically (when required), or failure to file with correct TIN information.

As in past years, individuals can file their personal income tax return without having to attach the relevant Form 1095. Taxpayers should keep these forms in their personal records, even though the federal individual mandate penalty is not applicable for the 2019 filing year.

If you have questions or would like more information, please contact Morris & Garritano Director of Compliance and HR Keith Dunlop for further information.

About the Author. This alert was prepared for Morris & Garritano by Stacy Barrow. Mr. Barrow is a nationally recognized expert on the Affordable Care Act. His firm, Marathas Barrow Weatherhead Lent LLP, is a premier employee benefits, executive compensation and employment law firm. 
This email is a service to our clients and friends. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.
Benefit Advisors Network and its members are not attorneys and are not responsible for any legal advice. To fully understand how this or any legal or compliance information affects your unique situation, you should check with a qualified attorney. © Copyright 2019 Benefit Advisors Network. All rights reserved.

Monday, December 3rd

BAN Webinar: End of Year Compliance Update Dec. 19th

Join us for an informative end-of-year webinar where Stacy H. Barrow, Esq. will provide an overview of all things compliance in 2018, along with a look at what to expect in 2019. Attendees will receive an update on legal and regulatory changes under the ACA in 2018, a review of other agency guidance in 2018 applicable to health and welfare plans, an update on recent court cases affecting health and welfare plans, and what to expect in 2019.

Key takeaways include:

  1. A better understanding of major changes in employee benefits law in 2018
  2. Knowledge of court cases that were most impactful to employee benefit plans in 2018
  3. An understanding of potential changes and guidance expected for 2019

December 19, 2018

9:00 am to 10:00 am PST

Password (if requested): EOY1219

This webinar is provided at no charge to the Smart Partners® of Benefit Advisors Network and their clients and friends. It has been approved for HRCI & SHRM CE approval. It is eligible for SHRM, HRCI, and CEBS credits. If you have further questions please contact Morris & Garritano at 805-543-6887.

 

Legal Disclaimer: Benefit Advisors Network is not a legal entity and nothing herein should be construed as legal advice. Always consult an attorney on all legal and compliance matters. Benefit Advisors Network is not responsible for the accuracy of the information contained herein. © Copyright 2018 Benefit Advisors Network. Smart Partners. All rights reserved.


Monday, January 15th

TBD: AHPs and the ACA

Association Health Plans (AHPs) pre-date the Affordable Care Act (ACA) and while they have a limited California presence, their potential for expansion jumpstarted on January 4th.  The Department of Labor released proposed rules that may lead to the growth of AHP’s, probably beginning in 2019. These proposed rules are open for comment until March 6th and may change.  Since this has potential to influence the current small group and individual health insurance markets, it’s worthwhile to have context for the rules and understand their key components.

In California, the main examples of AHPs are Multiple Employer Welfare Arrangements (MEWAs).  Our current limited number of MEWAs have functioned over the years.  However, some AHPs have a “checkered history,” according to a January 4th Kaiser Health News article by Julie Appleby. “A number have had solvency problems that left consumers on the hook for unpaid medical bills, while others have been fined for misleading advertising or failing to pay benefits.”

Hence, when evaluating these opportunities, brokers and employers have a lot of due diligence ahead of them.  Within the proposed rules, the association plans will form in two types:

  1. By industry, with up to a nationwide scope, either an existing association or one newly formed to host a health plan, or;

  2. By geographical region, which under some circumstances could be multi-state as well.

Read More >>


Friday, September 15th

Medicare Creditable Coverage Notice Requirements

Medicare Part D: Plan Sponsors Must Provide Notices to Participants by October 15, 2017

DISCLOSURE TO INDIVIDUALS – Group health plan sponsors must provide Medicare Part D creditable coverage notices prior to October 15th, the start date of the Medicare annual enrollment period for Part D, Prescription Drug coverage. The enrollment period is October 15th – December 7th. Most plan sponsors customize the Model Medicare Part D Notices provided by the Centers for Medicare and Medicaid Services (CMS) to notify affected plan participants. The October 15th deadline applies for all group health plan sponsors that offer prescription drug benefits, regardless of plan year, plan size, employer size, grandfather status, or whether the plan is insured or self-funded.
 
The purpose of the disclosure is to inform Medicare beneficiaries of whether the employer’s drug coverage is expected to provide coverage comparable to the Medicare Part D prescription drug coverage. Medicare-eligible employees should keep the creditable coverage notice for future reference. If a Medicare-eligible employee or dependent becomes eligible for Part D and decides not to enroll because he or she has employer-sponsored coverage, a creditable coverage notice allows them to enroll in Part D later without being charged a higher premium. For individuals enrolled in a non-creditable drug plan, failure to enroll in Part D when first eligible will result in higher premium if they enroll in Part D later.
 
The Notice of Creditable Coverage must be distributed to all individuals enrolled in an employer’s group health plan that fall within one of the following categories:
     
  1. Active employees or COBRA participants over age 65 entitled to Medicare (Part A and/or B)
  2. Spouses of active employees over age 65 entitled to Medicare (Part A and/or B)
  3. Dependent children of active employees entitled to Medicare (Part A and/or B) regardless of age
  4. Retirees over age 65 entitled to Medicare (Part A and/or B)
  5. Spouses of active employees and/or retirees entitled to Medicare (Part A and/or B)
  6. Dependent children of a retiree entitled to Medicare (Part A and/or B) regardless of age

MODEL NOTICES – CMS provides model creditable coverage notices on their website. Model notices are available in both English and Spanish. Plan sponsors are not required to use the model notices. They can choose to draft their own notice as long as it contains all of the legally required elements. Morris & Garritano can provide an editable model notice that satisfies the CMS requirements.

ELECTRONIC DISTRIBUTION – Disclosures and required notices must be furnished in a manner reasonably calculated to ensure actual receipt of the material. Employers can distribute these notices electronically to participants who have the ability to access electronic documents at their regular place of work as long as those participants have access to the electronic information system on a daily basis as part of their work duties. Employers can distribute electronically under these circumstances without the participant’s consent.
 
Participants (including active employees, retirees, and former employees) who do not use a computer as an integral part of their duties must affirmatively consent to receiving disclosures through electronic media, including methods not contemplated by current regulations (e.g. online benefit administration platforms).
 
In all cases, participants must be informed that they are responsible for providing a copy of the electronic notice to their Medicare-eligible dependents covered under the group health plan.
 
DISCLOSURE TO CMS – Employers are also required to notify CMS online annually that they have sent out these Part D notices. The notice to CMS is due within 60 days after the start of the plan year, or no later than March 1 for calendar year plans.
 
Contact Morris & Garritano Director of Compliance Keith Dunlop for further information regarding this or any other health care compliance issue.

Thursday, May 4th

American Health Care Act of 2017 Passes on a Vote of 217-213

On Thursday, May 4, 2017, the US House of Representatives passed the American Health Care Act of 2017 on a largely party line vote
of 217-213. The bill was previously pulled from consideration in March when it was clear that Republicans were not able to garner a sufficient number of votes amongst conservative and some moderate members in order to secure passage.

Two important amendments were then added to the bill. The first allows States to obtain a waiver from the key provisions of the Affordable Care Act (aka Obamacare) to provide essential health benefits. Those benefits as outlined by the ACA include, ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health treatment, prescription drugs, rehab services, lab services, preventative medicine, and pediatric services. The waivers are automatically approved unless The Department of Health and Human Services objects within 60 days. The amendment also allows States to charge older enrollees more than younger ones at a ratio higher than the 5:1 level specified in the original bill. This would presumably be done through high-risk pools.

The second amendment, offered just hours before the House vote, injects $8 billion into the system to subsidize premiums for those with preexisting conditions.

The bill now heads to the Senate where it will certainly undergo substantial modification.


Friday, March 24th

Healthcare Reform Dies in Congress

On Friday March 24, 2017, Speaker of the House, Paul Ryan, announced that the American Health Care Act has been pulled from consideration on the House floor. Republicans were not able to garner a sufficient number of votes amongst conservative and some moderate members in order to secure passage in the House. The bill, had it passed, would have begun the process of reforming major provisions of the Affordable Care Act (a.k.a. Obamacare) including the employer and individual mandates. With this legislative defeat, Speaker Ryan acknowledged that, “we will be living with Obamacare for the foreseeable future.”

Speaker Ryan further announced that the Republicans will be moving on to other items in their legislative agenda including tax reform and infrastructure spending. This in effect kills heath care reform for at least 2017. In fact, there may not be another attempt to repeal the Affordable Care Act until after the mid-term elections in 2018.

Please contact Morris & Garritano Director of Compliance Keith Dunlop at kdunlop@morrisgarritano.com or 805.597.6378 for questions regarding this or any other ACA-related issue.


Thursday, January 5th

2017 Benefit Advisors Webinar Series

The Morris & Garritano employee benefit webinar series is designed to provide our clients with the latest updates on employee health and welfare best practices, compliance strategies, and regulatory updates.

All webinars are eligible for HRCI, SHRM and CEBS credits unless noted otherwise.

An Overview of the ACA Reporting Requirements
(Forms 1094-B, 1095-B, 1094-C, and 1095-C)

Join Stacy Barrow, Esq. for an informative webinar answering common questions  and discussing best practices, including “limited non-assessment periods”.

Participants will come away with an understanding of how to address opt-out payments, non-union employees, and conditional offers of coverage to spouses.

This webinar is ideal for Applicable Large Employers with 50 or more full time employees.

To register for this webinar:
CLICK HERE
Password:ACA0111

January 11, 2017

9:00 am – 10:00 am PST

Legal Disclaimer: Benefit Advisors Network is not a legal entity and nothing herein should be construed as legal advice. Always consult an attorney on all legal and compliance matters. Benefit Advisors Network is not responsible for the accuracy of the information contained herein. © Copyright 2017 Benefit Advisors Network. Smart Partners. All rights reserved.


Wednesday, November 16th

Post-Election Returns: What Now for Obamacare?

The votes have been counted and Donald Trump is the president-elect and Republicans control Congress. Among the many questions around the proverbial watercooler is what now for “Obamacare”? While it is impossible for anyone to predict the future, we undertake to make a short, best guess about the future of the Affordable Care Act (“ACA”).

legal-alert_post-election-returns-what-now-for-obamacare