Leave in the Time of COVID-19

The COVID-19 pandemic is a public health and economic cataclysm, and few employers have been able to escape its impact on their business operations and employees. In their efforts to better manage their workforces during this period of extreme economic instability, many employers are turning to unpaid leaves of absences and furloughs as a way to scale back on costs temporarily while maintaining a connection to employees whose help will be critical to restarting normal business operations (whenever that may be). However, at a time when access to health care and financial support for impacted employees is more important than ever, indefinite unpaid leaves or absence and furloughs can present complex administrative issues for many common employee benefit plans. In the discussion that follows, we highlight some of the more important employee benefits issues to consider when employees are placed on unpaid leaves of absence or furloughs.

The Taxman Waiteth: IRS Moves Tax Deadline to July 15 Due to COVID-19

As part of the Trump administration’s ongoing efforts to mitigate the impact of the novel coronavirus (and the illness it causes, COVID-19) pandemic, on March 20, 2020, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) jointly announced in Notice 2020-18 that taxpayers affected by the pandemic now have until July 15, 2020, to file and pay their federal income taxes for 2019.

Lending a Helping Hand: Employer Options for Providing Financial Support to Employees Affected by the Coronavirus

In a few short weeks, the novel coronavirus (COVID-19) has driven massive change in day-to-day activities for most Americans, and that change appears likely to accelerate. Travel restrictions, social distancing recommendations, and other public health interventions have had immediate implications for the nation’s employers, which now find themselves on the front lines of the COVID-19 response effort trying to ensure the safety of employees and customers while still continuing business operations. Employers are particularly aware of the financial challenges that may be imposed upon employees who are not permitted to work for extended periods of time, whether due to contracting COVID-19, self-quarantining due to coronavirus exposure, or office closures.

Brady’s Bunch—Are Big Changes Coming for Employers Under the Tax Cuts and Jobs Act?

Having missed a historic opportunity to choose an exciting name for federal tax legislation, Texas Representative Kevin Brady and his fellow Republican tax drafters did not skimp on the substance of the Tax Cuts and Jobs Act (TCJA), delivering a sizable grab bag of post-Halloween tricks and treats for most taxpayers and proposing fairly major surgery on the venerable Internal Revenue Code of 1986, as amended (the Code). Although the focus of the tax reform proposal is first and foremost on some traditional Republican shibboleths (e.g., corporate tax rates, the estate tax, the alternative minimum tax), there are many provisions that would, if enacted, significantly impact employee and fringe benefit programs for many employers.

Rubber, Meet Road: The Arduous Task of Translating Campaign-Talk into Action to Repeal (and Replace?) Obamacare

The creation and implementation of the Patient Protection and Affordable Care Act (ACA or Obamacare) was a long, strange trip beset throughout by policy disagreements, shifting political winds, backroom legislative dealings, unexpected costs, legal challenges, and public relations fiascos. It should then come as no surprise that the Trump administration and the new Congress have experienced a similarly bumpy ride thus far in their efforts to dismantle the ACA.

Why Can’t We Be Friends? The Supreme Court Discovers an Unexpected Meeting of the Minds in Zubik v. Burwell

Regardless of one’s preferred metaphor, the Supreme Court of the United States is adept at ducking, punting, and otherwise avoiding messy and socially divisive interpretive issues. Every once in a while, the parties even help the Court out. Facing the prospect of another evenly divided 4-4 decision on the controversial intersection between the Affordable Care Act’s (ACA) contraceptive care mandate and the Religious Freedom Restoration Act of 1993 (RFRA)— and after having administered some friendly arm-twisting to the parties following oral argument back in March—the Court found just such an exit strategy in Zubik v. Burwell.

Can Healthcare Providers Prohibit Employees From Using Recording Devices in the Workplace?

In the wake of the National Labor Relations Board’s (NLRB) decision in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), hospitals and healthcare providers will need to revisit their employee recording policies. This NLRB decision found that an employer may not adopt a work rule that prohibits employees from recording company meetings or conversations with coworkers without a valid legal or business justification. The NLRB reasoned that work rules banning recording tend to chill or restrain workers from engaging in or memorializing concerted, protected activity under federal law.

ERISA Preemption Made Easy? Supreme Court Sends Vermont All-Payer Database Back to the Drawing Board

On the first day of decisions since the unexpected passing of Justice Scalia, the Supreme Court of the United States ventured into the thorny area of preemption under the Employee Retirement Income Security Act (ERISA) and managed to articulate a reasonably clear standard for evaluating preemption issues involving employee benefit plans. However, several members of the Court weighed in separately, either in concurrence with the majority’s decision or dissenting from it, and their conclusions suggest that ERISA’s preemption provision will continue to provide fodder for the Court’s docket for years to come.

Which Way Did Our Money Go? Supreme Court Decides ERISA Subrogation Issue

On January 20, 2016, the Supreme Court of the United States addressed the first of several ERISA-related cases on its October 2015 docket, reversing the Eleventh Circuit Court of Appeals and concluding that the trustees of the National Elevator Industry Health Benefit Plan were a day late and dollar (or more) short in their attempts to secure reimbursement for benefits provided to a participant who was injured in an automobile accident. In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, the Court ventured back to a topic—subrogation and reimbursement—with which it has wrestled several times in the past to resolve a question that remarkably had been left unanswered in prior decisions: whether a health plan can be reimbursed for benefits provided to a plan participant where the participant has recovered from a third party and spent the settlement proceeds on “nontraceable items” (i.e., services or consumables).

Happy New Year from the IRS!

For the many employers and health care providers that have thus far been spending their holidays poring over the Affordable Care Act’s (ACA) new tax forms and their cryptic instructions in anticipation of the inaugural round of reporting under Sections 6055 and 6056 of the Internal Revenue Code, the Internal Revenue Service (IRS) just delivered an unexpected gift to welcome the new year. In Notice 2016-4, the IRS has extended two key deadlines for reporting under the ACA’s employer mandate, giving both employers and health care providers additional time to furnish and file the Forms 1094 and 1095.

Bipartisan Budget Act of 2015 Repeals ACA Automatic Enrollment Provision

Despite a marked lack of success for efforts in Congress and through the courts to repeal the Patient Protection and Affordable Care Act of 2010 (ACA) completely, or substantially interrupt its implementation, the Bipartisan Budget Act of 2015 (H.R. 1314) has quietly repealed the ACA’s potentially problematic automatic enrollment requirement for health plans. As originally enacted and set forth in ACA Section 1511, the automatic enrollment requirement was incorporated into the Fair Labor Standards Act (FLSA) and obligated employers subject to the FLSA with 200 or more employees to amend their group health plans to automatically enroll new full-time employees and to continue enrollment for current employees. The intended effective date for this requirement was not specified in the ACA, and the U.S. Department of Labor deferred its application pending issuance of clarifying regulations.