Employers | | Page 17

New Mental Health Parity Regulations Require Health Plan Review & Updates

January 31, 2010

By Cynthia Marcotte Stamer

Employer and union-sponsored group health plans and insurers generally must update their group health plans to comply with expanded federal “mental health parity” regulations (MHP Regulations) published on Friday, January 29, 2010 will require changes to most covered group health plans to comply with the new rules and to make adjustments to broader benefit provisions as appropriate to mitigate potential cost implications no later than the first plan year beginning after June 30, 2010.

Jointly published by the Treasury, Health & Human Services and Labor Departments and available for review here , the MHP Regulations interpret and implement federal rules prohibiting group health plans and their insurers from imposing certain special limits on benefits provided for mental health and substance abuse treatments not applicable to general medical or surgical benefits.

The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008, Public Law 110-343 (MHPAEA) expands the scope of prohibited restrictions on mental health benefits beginning after June 30, 2010. Under the MHPAEA amendments, any covered group health plan that includes mental health and substance use disorder benefits along with standard medical and surgical benefits generally cannot apply more limited benefit limits, out-of-pocket cost limitations, prior authorization and utilization review or other benefit restrictions than apply to medical or surgical benefits. In addition, group health plan utilization review, medical necessity and appropriateness and other rules and procedures used to decide mental health and substance abuse benefits generally must be based on the same level of scientific evidence used by the group health plan or insurer to determine medical and surgical benefits.

Before the MHPAEA amendments took effect, the Mental Health Parity Act of 1996 (MHPA) generally only prohibited group health plans from applying more restrictive aggregate lifetime and annual dollar limits on mental health benefits than applied to general medical or surgical benefits and did not extend these restrictions to substance use disorder benefits.

The MHP Regulations generally apply to group health plans of employers with 50 or more workers that offer mental health or substance use disorder benefits for plan years beginning on or after July 1, 2010. Until then, covered group health plans and their insurers generally must continue to comply with the more limited mental health parity requirements imposed under the MHPA, as well as other federal group health plan mandates.

Federal law increasingly is curtailing the significant latitude that employers and unions once enjoyed in deciding the benefits, eligibility and other terms and conditions of their group health plans, including many significant changes that took effect or will take effect during 2009 and 2010. You can learn more about some of these developments by reviewing the 2009 Health Plan Update presentation posted here. In light of the liabilities and costs arising under these and other rules, plan sponsors, administrators, fiduciaries and executives with responsibility over these plans, their establishment, funding or administration should take prompt and prudent steps to verify that their plan documents, communications, agreements and practices are updated to minimize risks and avoid unanticipated expense.

If your organization needs assistance with monitoring, assessing, managing or defending these or other health or other employee benefit, labor and employment, or compensation practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with health and other employee benefit, labor and employment laws, safety, compensation, insurance, and other laws. She also advises and defends employers and other plan sponsors, fiduciaries, employee benefit plans and others about litigation and other disputes relating to these matters, as well as charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Examples of other recent updates that may be of interest include:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on New Mental Health Parity Regulations Require Health Plan Review & Updates | Disease Management, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Mental Health | Tagged: Disability Discrimination, Disease Management, Employee Benefits, Employment, Employment Agreements, ERISA, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Managed Care, Medical Coverage, Mental Health Benefits, Mental Health Parity, Risk Management, Substance Abuse Benefits | Permalink
Posted by Cynthia Marcotte Stamer

Health Plans & Employers Can Expect Pressure To Pay For Childhood Obesity Counseling From New American Academy of Pediatrics Report

January 25, 2010

By Cynthia Marcotte Stamer

New American Academy of Pediatrics recommendations calling for early intervention and intensive behavioral therapy to treat childhood obesity promise to increase demands for employer sponsored and other health plans to reimburse the costs of these treatments.

With health care providers and government officials increasingly emphasizing the need for prevention and intervention, employers and health insurers face greater pressure to offer health benefit coverage for weight management and other obesity prevention and treatment. Aside from determining what treatments to coverage generally, recent changes in the Americans With Disabilities Act statute and its enforcement and interpretation by the Equal Employment Opportunity Commission, the recently effective employment and health plan nondiscrimination rules of the Genetic Information and Nondiscrimination Act, health information and other privacy rules and other legal changes make the appropriate design and administration of obesity and other wellness, disease management and other programs targeting obesity or other chronic conditions legally and operationally challenging. Employers and insurers concerned with these issues should exercise care to properly understand and appropriately manage the legal and operational complexities, risks, costs and benefits when designing health and other programs to manage health care, disability and other costs of obesity and other chronic diseases.

Read the report and about discrimination and other issues that employers and insurers may need to manage under evolving federal rules when deciding how to design and manage obesity and other wellness and disease management programs here.

If you have questions about wellness, disease management or other health and wellness benefit, disability prevention and management, or other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.

Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group, an ABA Joint Committee on Employee Benefits Council Member, Past Chair of the ABA Managed Care & Insurance Group and RPTE Welfare Benefits Committee and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced advising and assisting government leaders, employers, health and other employee benefit plans and their fiduciaries, insurers, financial advisory services, and administrators, health care providers, and others about obesity and other disease management and wellness programs, as well as other related employee benefit and employment matters. A widely published author on these and other health and disability benefit and management concerns, Ms. Stamer has advised and represented employers, health plans and others on these and other matters for more than 20 years. Author of the Personal Health Care Toolkit, Ms. Stamer also has lead the development of wellness and disease management initiatives for the National Kidney Foundation of North Texas and other organizations. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Health Plans & Employers Can Expect Pressure To Pay For Childhood Obesity Counseling From New American Academy of Pediatrics Report | Corporate Compliance, EEOC, Employee Benefits, ERISA, Fiduciary Responsibility, GINA, Health Plans, Human Resources, Internal Investigations, Leave, Mental Health, Rehabilitation Act, Wellness, Wellness Programs | Tagged: ADA, Disability, Disease Management, EEOC, GINA, Health Care, Health Insurance, Health Plans, HIPAA, Obesity, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

Homeland Security Updates List of Nations Whose Nationals Are Eligible for H-2A or H-2B Visas

January 20, 2010

The Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) in conjunction with the United States Secretary of State yesterday announced the countries whose nationals are eligible to participate in the H–2A and H–2B visa program for the upcoming year. USCIS may only approve H–2A and H–2B petitions for nationals of countries included among this list of countries. USCIS published the list the Federal Register on January 19, 2010.

The countries included on the list of countries whose nationals are eligible to participate in the H–2A and H–2B visa programs for one year period beginning January 18, 2010 through January 17, 2011 include: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employment, compensation, employee benefit, workplace health and safety, or corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced assisting employers and others to design, administer and defend I-9 and other labor and employment, compensation, employee benefits, corporate ethics and compliance and other risk management practices. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Homeland Security Updates List of Nations Whose Nationals Are Eligible for H-2A or H-2B Visas | Human Resources, I-9, Immigration, Nonresident aliens, Risk Management | Tagged: Employment, H-2A Visa, H-2B Visa, I-9, Immigration | Permalink
Posted by Cynthia Marcotte Stamer

New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans

January 14, 2010

By Cynthia Marcotte Stamer

Regulations published by the Department of Labor today (January 14, 2010) offer employers the opportunity to know their deposit of employee contributions and other amounts withheld from wages or otherwise received from employees with a pension, profit-sharing, health, or other welfare benefit plan is timely for purposes of the fiduciary responsibility requirements of the Employee Retirement Income Security Act (“ERISA”) and the prohibited transaction rules of the Internal Revenue Code (the “Code”) by depositing those amounts with the plan within the seven day period specified in a new safe harbor included in the Regulations.

Certainty about the timeliness of these deposits is important, as mishandling of these employee contributions, participant loan repayments or other employee benefit plan assets frequently triggers judgments, fines and penalties against companies that sponsor employee benefit plans as well as owners, board members, or other members of management. See Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Leaders. Consequently, businesses sponsoring employee benefit programs and owners, officers, directors or other members of management with authority over or responsibility for the handling or application of amounts withheld or collected from employees as employee contributions or plan loans should make arrangements for these amounts to be properly handled and timely deposited with the appropriate employee benefit plan in accordance with these new plan asset regulations.

Title I of ERISA generally requires that employee benefit “plan assets” be held in trust, prudently handled and invested, used for the exclusive benefit of the plan and its participants, and otherwise used and administered in accordance with ERISA’s fiduciary responsibility rules. Meanwhile, the use of “plan assets” of certain employee benefit plans in a manner prohibited by the Code’s prohibited transaction rules also may trigger excise taxes and other penalties.

For purposes of both ERISA and the Code, Labor Department Regulation § 2510.3-102, specifies that amounts (other than union dues) that an employer withholds from wages or otherwise collects from employees as employee contributions or loan repayments to an employee benefit plan generally become plan assets subject to these fiduciary responsibility rules “as of the earliest date on which such contributions or repayments can reasonably be segregated from the employer’s general assets.” Since employers, business owners, members of management can risk exposure to damages, administrative penalties and/or excise taxes, knowing when amounts collected from employees are considered plan assets is a critical first step to managing these risks.

Unfortunately, the subjectivity of this standard leaves room for much uncertainty and debate about the precise deadline by which employee contributions, plan loans and other amounts from employees must be received by the plan. The subjectivity inherent in this standard leaves many employers uncertain about the adequacy of their compliance efforts and frequently fuels debate among plans, debtors, creditors, regulators or others about the when amounts earmarked to be withheld from employee wages cease to be assets of the debtor employer and become plan assets.

To mitigate debate and uncertainty about the timing of these events, Labor Department Regulation § 2510.3-102 as published in final form today includes a new “safe harbor” rule for plans with fewer than 100 participants at the beginning of the plan year. Under the safe harbor, employee contributions, plan loans and other amounts withheld from wages or received from employees for payment to an employee benefit plan are treated as treated timely paid to the plan if deposited with the plan not later than the 7th business day following the day on which such amount is received by the employer (in the case of amounts that a participant or beneficiary pays to an employer), or the 7th business day following the day on which such amount would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant’s wages). While this safe harbor assures employers and others that withhold from wages or receive employee contributions or participant loan payments owing to less than 100 participant plans that their deposit will be considered timely if received by the plan within seven days, the plan asset regulations leave open that deposit with the plan more than 7 after receipt might still be considered timely deposit with the plan under certain circumstance.

Where deposit with the plan is not made within the seven-day period established by the safe harbor, the plan asset rules continue to leave room for great subjectivity in the determination of the deadline for deposit. In addition to the seven-day safe harbor, the plan asset regulations clearly establish bright-line deadlines after which the deposit of employee contribution or plan loan amounts always will be considered untimely. Thus, the plan asset rules provide that the deadline for depositing employee contributions and plan loans with the plan in no event ever extends beyond the applicable of the following dates (the “Latest Date”)

For pension plans, the 15th business day of the month following the month in which the employee contribution or participant loan repayment amounts are withheld or received by the employer;
With respect to a SIMPLE plan that involves SIMPLE IRAs the 30th calendar day following the month in which the participant contribution amounts would otherwise have been payable to the participant in cash; and
For health and other welfare benefit plans, 90 days from the date on which the employee contribution is withheld or received by the employer.

In all other instances, the plan asset regulations leave open to uncertainty and debate when and if an employer’s deposit of employee contributions and plan loans more than seven-days after payroll deduction or receipt but before the Latest Date will qualify as timely for purposes of ERISA Title I or the Code’s prohibited transaction provisions.

Companies and owners, officers and directors of businesses that harm plans by failing to ensure that these amounts are timely deposited into an employee benefit plan or otherwise are involved in the mishandling of these funds frequently become subject to prosecution, damage awards, civil penalties and excise taxes. To mitigate potential exposure to these risks, businesses and leaders of businesses that withhold from wages or collect employee contributions or plan loan payments from employees should make arrangements to ensure that these amounts timely are deposited with the appropriate plans and otherwise handled appropriately in accordance with ERISA and the Code.

If your business or employee benefit plan needs assistance evaluating or responding to these or other employee benefit, or other employment, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.

Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. She is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with these and other applicable federal regulations as well as well as advising and defending employers and others against tax, employee benefit, labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on New Labor Department Rule Allows Employers 7 Days To Deliver Employee Contributions To Employee Benefit Plans | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Human Resources, Internal Controls, Internal Investigations, Restructuring, Retirement Plans, Tax | Tagged: Corporate Compliance, defined benefit plan, Employee Benefits, employee contributions, Employers, Employment, Employment Agreements, ERISA, Health Insurance, Health Plans, Human Resources, Insurance, Insurer, Internal Controls, Internal Investigations, Labor, Minimum Wage, pension plans, plan loans, Retirement Plans, Risk Management, Tax, welfare plans | Permalink
Posted by Cynthia Marcotte Stamer

Certain Workforce Reductions Trigger Plant Closing Notice & Other Obligations

January 6, 2010

While some businesses report improved business or hiring outlooks for 2010, many others are running out of time before the economic downturn and financing restrictions will force them to implement workforce reductions, close plants, or shut down all or portions of their business operations. Where a distressed business contemplates a plant closing or mass layoff, the business and its leaders should consider its potential responsibilities under the Worker Adjustment and Retraining Notification Act (WARN) and where applicable, make appropriate arrangements to comply or implement the restructuring to minimize or avoid triggering WARN obligations.

In addition to WARN, business contemplating or implementing a plan closing, mass layoff or other reductions in force also should evaluate and make appropriate arrangements to address potential obligations under state plant closing laws, the ARRA Stimulus Bill Extension Rules amended and extended earlier this month and other requirements of COBRA, voluntary or contractually obligated termination pay or other severance obligations, employee benefit, unemployment, and other laws. Read more.

Comments Off on Certain Workforce Reductions Trigger Plant Closing Notice & Other Obligations | Bankruptcy, Corporate Compliance, Employee Benefits, Employers, ERISA, Health Plans | Tagged: Bankruptcy, Employer, layoff, plant closing, reductions in force, WARN | Permalink
Posted by Cynthia Marcotte Stamer

Newly Extended COBRA Subsidy Rules Require Employers, Administrators Send Required Notices & Update Health Plan Documents & Procedures Quickly

January 6, 2010

Employer and union sponsored group health plans, their sponsors and administrators must act quickly to provide required notifications and implement other plan document and procedural changes required to comply with the extension and expansion of temporary “COBRA Subsidy Rules” for “assistance eligible individuals” signed into law as part of the Department of Defense Appropriations Act (H.R. 3326). In some cases, required notifications are due in early February, 2010.

The COBRA Subsidy Rules originally were added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“AARA”) last February and extended and expanded just before Congress recessed for the Holidays. H.R. 3326 extended the period that employer and union-sponsored group health plans must allow employees and members of their family that lose group health plan coverage due to an involuntary employment loss to continue their group medical coverage under the reduced premium and other temporary ARRA COBRA Subsidy Rules and lengthened the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual. Health plan administrators must provide notifications to assistance eligible individuals and restore COBRA eligibility and coverage at reduced premiums for certain assistance eligible individuals who allowed their coverage to lapse before the extension. Legislation that would reduced the premiums health plans are allowed to charge and further extend the rules to June, 2010 still is pending in Congress. Curran Tomko Tarski LLP already has worked with several clients to understand these changes, amend their documents and prepare notices. Read more.

Group health plans, their employer or union sponsors, administrators, insurers and service providers will need to act quickly to prepare and provider required updated notifications to assistance eligible individuals of these extended eligibility periods and their resulting rights, and otherwise update their plan documents, procedures, and COBRA notifications in light of these new rules.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. The author of the “Health Plan Eligibility Toolkit,” Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with COBRA and other applicable federal regulations as well as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Newly Extended COBRA Subsidy Rules Require Employers, Administrators Send Required Notices & Update Health Plan Documents & Procedures Quickly | ARRA, Bankruptcy, COBRA, COBRA Subsidy, Corporate Compliance, Employers, Health Plans, Human Resources, Stimulus Bill, Tax | Tagged: ARRA, COBRA, COBRA Subsidy, Group Health plans, Stimulus Bill | Permalink
Posted by Cynthia Marcotte Stamer

Comments Invited On Burdensomeness of Requirements To Obtain DOL Determination That Benefit Plan Qualifies as As Collectively Bargained Plan

December 30, 2009

By Cynthia Marcotte Stamer

The Employee Benefit Security Administration (EBSA) is inviting public comment on the compliance burdens to comply with its administrative procedure (‘‘procedural rules’’) for obtaining a determination by the EBSA if a particular employee benefit plan is established or maintained under or pursuant to one or more collective bargaining agreements for purposes of section 3(40) of the Employee Retirement Income Security Act (ERISA).

Codified beginning at 29 CFR 2570.15, these procedural rules concern specific criteria set forth in 29 CFR 2510.3–40 which, if met, constitute a finding by EBSA that a plan is collectively bargained. Plans that meet the requirements of the criteria rules are not subject to state law and qualify for delayed compliance, exemption or other special treatment under various requirements of ERISA, the Internal Revenue Code or other applicable requirements. Among other things, overzealous characterization and marketing of self-insured health plans covering employees of multiple employers as collectively bargained and therefore exempt from state insurance regulation has resulted in numerous high profile enforcement actions for insurance fraud or other violations around the country over the past decade.

The procedural rules require applicants to submit certifications and other documentation. EBSA is inviting comments on the appropriateness of the assessment currently published in connection its publication of the procedural rules of the compliance burden estimates these procedural rules

EBSA particularly is interested in comments that:

Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submissions of responses.

If you have questions about or need assistance evaluating, commenting on or responding to this invitation or other employee benefit, employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, and a Council Member on the ABA Joint Committee on Employee Benefits, Ms. Stamer is experienced advising and assisting employers, employee benefit plan and their fiduciaries, insurers, financial advisory services, administrators and custodians, debtors, trustees and creditors in bankruptcy and others about plan, process, and product design, administration, documentation, risk management and defense under ERISA, COBRA, HIPAA, labor and employment, tax, state banking and insurance, and other laws. She also advises, assists, trains, audits and defends employers and others regarding the federal and state Sentencing Guideline and other compliance, equal employment opportunity, privacy, leave, compensation, workplace safety, wage and hour, workforce reengineering, and other labor and employment and defends related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience, see here or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Comments Invited On Burdensomeness of Requirements To Obtain DOL Determination That Benefit Plan Qualifies as As Collectively Bargained Plan | Corporate Compliance, Employee Benefits, Employers | Tagged: Collective Bargaining, ERISA, Health Plans, Retirement Plans, Union | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks To CPAs About “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” January 12, 2010

December 28, 2009

Accountants and their clients face increasing regulatory and business pressures to protect the sensitive business and personal information collected and maintained in the course of their operation to minimize their exposure to personal identity theft and other cybercrime scams by employees, business partners and others. Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer will speak about “Privacy & Information Security: Managing Your Accounting Practice’s Liabilities & Counseling Your Clients” to members of the Dallas CPA Society on January 12, 2010 beginning at 2:00 p.m.

Part of the Dallas CPA Society Member Appreciation CPE Series Meeting, Ms. Stamer’s presentation will be part of four hours of free CPE training to be provided at a program open to members only at the Hilton Lincoln Centre Hotel located at 5410 LBJ Freeway, Dallas TX 75240 from 1 p.m. to 4:50 p.m. Central Time. (Parking at the facility costs $5.00). To register or for additional information, see here.

If you need help responding to these developments or other legislative, regulatory or enforcement concerns, Curran Tomko Tarski LLP can help. Curran Tomko and Tarski LLP and its attorneys have significant experience assisting businesses and business leaders to manage and defend privacy, data security, tax employee benefit, employment, health care, environmental, safety, securities and other compliance and risk management concerns.

Curran Tomko Tarksi LLP Partner Cynthia Marcotte Stamer has more than 22 years experience helping businesses to use the law, process and technology to manage people and processes, and to manage technology, privacy and data security, employment and other legal and operational risks affecting their businesses. Author of “Privacy & Securities Standards-A Brief Nutshell,” “Privacy Invasions of Medical Care-An Emerging Perspective,” and “E-Health Business and Transactional Law Other Liability-Tort and Regulatory;” published by The Bureau of National Affairs, Inc., and many other publications, Ms. Stamer has extensive experience advising a accounting firms, law firms, banks and financial services organizations, insurers, consultants, health plans, health care providers and others about HIPAA, FACTA, and other privacy, trade secret and other information security and data breach risk management and compliance concerns. Ms Stamer also speaks, publishes and provides public policy input extensively on data security, technology and other internal controls and risk management matters. Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, and Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice, Ms. Stamer also is Board Certified in Labor & Employment law. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with these or other compliance concerns, wish to inquire about federal or state regulatory compliance audits, risk management or training, assistance investigating or responding to a known or suspected compliance or risk management concern, or need legal representation on other matters please contact the author of this update, Cynthia Marcotte Stamer, CTT Labor & Employment Practice Chair at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

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Posted by Cynthia Marcotte Stamer

Rising Enforcement and Changing Rules Require Prompt Review & Update of Health Plan Privacy & Data Security Policies & Procedures

December 25, 2009

Health plans and their business associates should review and update their practices and policies concerning the use access and disclosure of protected health information in response to changing requirements and expanding enforcement exposures under the Health Insurance Portability & Accountability Act of 1996 (HIPAA) Privacy and Security Rules.

A series of Office of Civil Rights (OCR) enforcement action against health plans highlights the need for group health plans and insurers to exercise care to comply with HIPAA’s Privacy & Security Rules. For example, OCR recently required a HMO to take a series of corrective actions based on findings from its investigation of a complaint that the HMO impermissibly disclosed a member’s protected health information by sending her entire medical record to a disability insurance company without her authorization. Based on its investigation, OCR found the HMO violated HIPAA by relying on a form to make the disclosure that failed to meet the Privacy Rule requirements to qualify as a valid authorization under the Privacy Rule. Based on these findings, OCR required the HMO among other things:

To create a new HIPAA-compliant authorization form that specifies what records and/or portions of the files will be disclosed, that the respective authorization will be kept in the patient’s record, together with the disclosed information and otherwise to meet the content requirements of the Privacy Rule for an authorization; and
To implement a new policy that directs staff to obtain patient signatures on these forms before responding to any disclosure requests, even if patients bring in their own “authorization” form.

Another action resulted after a national health maintenance organization sent explanation of benefits (EOB) by mail to a complainant’s unauthorized family member. OCR’s investigation determined that a flaw in the health plan’s computer system put the protected health information of approximately 2,000 families at risk of disclosure in violation of the Privacy Rule. To resolve this case, OCR required among other things that the insurer to correct the flaw in its computer system, review all transactions for a six month period and correct all corrupted patient information.

In yet another case, OCR found an employee of a major health insurer impermissibly disclosed the PHI of one of its members without following the insurer’s authorization and verification procedures. Among other corrective actions to resolve the specific issues in the case, OCR required the health insurer to train its staff on the applicable policies and procedures, to take action to mitigate the harm to the individual and to counsel and give a written warning to an employee who made the disclosure.

While OCR declined to impose any civil penalties in any of these three instances, violations of the Privacy Rules have resulted in both criminal prosecutions by the Department of Justice and the payment of large civil settlements to OCR. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information HIPAA Risks Soar As CVS Agrees to Pay $2.25 Million To Resolve HIPAA Charges & Stimulus Bill Amends HIPAA. Furthermore, recent amendments to the Privacy Rules increase the likelihood that health plans and other covered entities violating the Privacy Rules will incur civil penalties. The American Recovery and Reinvestment Act of 2009 (ARRA) amended the Privacy Rules effective October, 2009 to increase the civil penalties for Privacy Rule violations and to include new breach notification requirements for covered entities. Additional ARRA amendments to HIPAA scheduled to take effect February 17, 2010 will further tighten the conditions under which covered entities may use, access or disclose PHI under the Privacy Rules, will expand the circumstances under which health plans and other covered entities will be required to account for dealings with PHI under HIPAA, and will extend the duty to comply with and liability for violations of the Privacy Rules to business associates. In the meanwhile, employees increasingly are alleging Privacy Rule violations as part of their whistleblower or other wrongful discharge claims. See, e.g. Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim.

In light of these changing rules and expanding liabilities, health plans and their business associates need to review and update their Privacy and Security practices, business associate agreements and privacy notices for compliance in light of the expanding enforcement activities of OCR and these evolving Privacy and Security Rules. These and other developments make it imperative that health plans and other covered entities and their business associates immediately review and update their HIPAA and other data security and privacy practices to guard against growing liability exposures under HIPAA and other federal and state laws.

If your organization needs assistance reviewing, updating, administering or defending privacy and data security practices under HIPAA, state data breach or other laws, Curran Tomko Tarski LLP can help. The author of this update, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer has extensive experience advising and assisting health plans, health insurers, and other covered entities and business associates to review, update, document, enforce and defend their HIPAA and other privacy and data security policies and practices. The author of numerous publications on HIPAA and other privacy and data security rules, she also speaks and conducts training extensively on these concerns.

Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with HIPAA and other applicable federal regulations as well as well as advising and defending employers, health plans, insurers and others against privacy, tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the OCR, DOJ,IRS, Department of Labor and other federal and state regulators.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

President Signs Law Extending & Expanding Temporary AARA COBRA Subsidy Requirements For Group Health Plans

December 22, 2009

By Cynthia Marcotte Stamer

Employer and union sponsored group health plans, their sponsors and administrators must act quickly to comply with the extension and expansion of temporary “COBRA Subsidy Rules” for “assistance eligible individuals” originally added to the group health plan medical coverage continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) by the American Recovery and Reinvestment Act of 2009 (“AARA”) last February.

The Department of Defense Appropriations Act (H.R. 3326) signed into law by President Obama on December 19, 2009 extended the period that employer and union-sponsored group health plans must allow employees and members of their family that lose group health plan coverage due to an involuntary employment loss to continue their group medical coverage under the reduced premium and other temporary ARRA COBRA Subsidy Rules and lengthened the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual.

Original COBRA Subsidy Rules

As originally enacted, the ARRA COBRA Subsidy Rules limited the COBRA premium that a COBRA-covered group health plan could charge a COBRA-eligible employee or dependent whose group health plan eligibility ended due to an involuntary employment loss between September 1, 2008 and December 31, 2009 (“assistance eligible individual”) to 35% of the otherwise applicable COBRA premium (the “Reduced ARRA Premium”) for a period of up to 9 months (the “Subsidy Period”). ARRA dictated that employers sponsoring these group health plans must pay the remaining 65% of the COBRA premium (the “COBRA Subsidy”) for the assistance eligible individual during the Subsidy Period, but allowed employers to seek reimbursement by claiming a payroll tax credit for these COBRA Subsidy payments by complying with applicable IRS procedures. AARA also mandated that group health plans offering a choice of coverage options offer assistance eligible individuals the option to switch coverage options and required group health plans to notify assistance eligible individuals of the special COBRA Subsidy Rules.

H.R. 3326 COBRA Subsidy Rules Extension

As signed into law on December 19, 2009, H.R. 3326:

Extends the period during which an involuntary employment loss can qualify an otherwise COBRA-eligible employee or dependent as an assistance eligible individual for an additional two months (from December 31, 2009 to February 28, 2010);
Adds an additional six months (from 9 to 15 months) the Subsidy Period during which an assistance eligible individual experiencing an involuntary loss of employment between September 1, 2008 and February 28, 2010 is entitled to pay the Reduced AARA Premium;
Requires group health plans to notify assistance eligible individuals of the extension; and
Requires group health plans to allow additional time for assistance eligible individuals who had exhausted their original 9-month Subsidy Period before H.R. 3326 extended the Subsidy Period to 15 months to pay the Reduced AARA Premium related to the extension.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. The author of the “Health Plan Eligibility Toolkit,” Ms. Stamer is experienced with assisting employers, insurers, administrators, and others to design and administer group health plans cost-effectively in accordance with COBRA and other applicable federal regulations as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators.. Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, a representative to the ABA Joint Committee on Employee Benefits Council, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Business Leaders

December 18, 2009

By Cynthia Marcotte Stamer

Business owners, executives, board members, and other business leaders of companies facing financial challenges should heed a mounting series of recent fiduciary liability settlement orders, judgments and prosecutions as strong reminders of the potential personal risk they may face if their health, 401(k) or other employee benefit programs are not appropriately funded and administered as required by the Employee Retirement Income Security Act of 1974, as amended (ERISA).

Businesses leaders struggling to deal with economic setbacks frequently may be tempted to use employee benefit plan contributions or funds for added liquidity or otherwise fail to take appropriate steps to protect and timely deposit plan contributions or other plan assets. A long and ever-mounting series of decisions demonstrates the risks of yielding to these temptations for businesses that sponsor these plans and the business leaders that make these decisions.

EBSA Prosecutes Businesses & Executives That Bungle ERISA Obligations

The mishandling of employee benefit obligations by financially distressed companies during the ongoing economic downturn is fueling an increase in Department of Labor Employee Benefit Security Administration (EBSA) enforcement actions against distressed or bankrupt companies and their officers or directors for alleged breaches of fiduciary duties or other mishandling of medical, 401(k) or other pension, and other employee benefit programs sponsored by their financially distressed companies.

EBSA enforcement activities during 2009 continue to highlight the longstanding and ongoing policy of aggressive investigation and enforcement of alleged misconduct by companies, company officials, and service providers in connection with the maintenance, administration and funding of ERISA-regulated employee benefit plans. A review of the Labor Department’s enforcement record makes clear that where the Labor Department perceives that a plan sponsor or its management fails to take appropriate steps to protect plan participants, the Labor Department will aggressively pursue enforcement regardless of the size of the plan sponsor or its plan, or the business hardships that the plan sponsor may be facing.

EBSA reports enforcing $1.3 billion in recoveries related to pension, 401(k), health and other benefits during fiscal year 2009. EBSA has filed numerous lawsuits to compel distressed companies and/or members of their management to pay restitution or other damages for alleged breaches of ERISA fiduciary duties, to appoint independent fiduciaries, or both for plans sponsored by bankrupt or financially distressed companies.

Recent settlements and judgments obtained by the Labor Department and through private litigation document that officers and other members of management participating, or possessing authority to influence, the handling of heath, 401(k) and other pension, or other employee benefit plans regulated by ERISA may be exposed to personal liability if these benefit programs are not maintained and administered appropriately. This risk is particularly grave when the sponsoring company becomes financially distressed or goes bankrupt, as the handling of employee benefit and other responsibilities becomes particularly disrupted and the lack of company liquidity often leaves executives and service providers as the only or best source of recovery for government officials and private plaintiffs.

Executives Ordered To Pay To Make Things Right

In the December 2, 2009 decision in Solis v. Struthers Industries Inc., for instance, a federal district judge ordered business leader Jomey B. Ethridge liable to pay $303,084.61 to restore assets belonging to the 401(k) plan of bankrupt Struthers Industries in an ERISA fiduciary responsibility action filed by the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA). Filed by the EBSA in the U.S. District Court for the Southern District of Mississippi, the Struthers Industries lawsuit alleged that Ethridge and Struthers Industries allowed employee contributions to be used for purposes other than providing benefits resulting in losses of $310,084.57. According to court documents, Struthers Industries designed and built heat transfer and pressure vessels at its Gulfport facility. In 2001, its 401(k) plan had 278 participants and assets totaling $8,279,083. The company filed for bankruptcy in 2003, and its assets were auctioned off in 2005. An independent fiduciary was appointed by the court in 2007 to manage the plan’s assets. The ordered Ethridge personally to pay $303,084.61 in restitution to the plan for his involvement in the mishandling of the plan’s assets. The order also bars Ethridge from acting as a benefit plan fiduciary in the future.

The Struthers Industries decision comes on the heels of EBSA’s success in Solis v. T.E. Corcoran Co. Inc. last month in recovering more than $89,000 from business owners and operators found to have breached fiduciary duties to the participants of the T.E. Corcoran Co. Inc. Profit Sharing Plan by improperly loaning plan assets to he plan sponsor and an affiliated company. The Labor Department sued T.E. Corcoran Co. and its owners, John F. Corcoran and Thomas E. Corcoran Jr., alleging that the company and its owners caused the plan to lend money to the two companies at below market interest rates, without terms of payment and without documentation in violation of ERISA. The suit filed in the U.S. District Court for the District of Massachusetts, also named as a defendant Coran Development Co. Inc., a company co-owned by the Corcorans. T.E. Corcoran Co. Inc. was the sponsor and administrator of the plan, while John and Thomas Corcoran were trustees of the plan, making all three fiduciaries and parties in interest with respect to the plan. ERISA specifically prohibits the use of employee benefit plan funds to benefit parties in interest.

The Corcoran judgment requires that the plan account balances of defendants John F. Corcoran and Thomas E. Corcoran Jr. be offset in the amount of $89,273 plus interest to be allocated to the accounts of the other plan participants. The offset will make whole all of the accounts of the non-trustee participants. In addition, the court order appoints an independent trustee to oversee the final distribution of the plan’s assets and the proper termination of the plan, requires the defendants to cooperate fully with the independent trustee in this process, and then prohibits them from serving as fiduciaries to any ERISA-covered plan for 10 years.

A complex maze of ERISA, tax and other rules make the establishment, administration and termination of employee benefit plans a complicated matter. When the company sponsoring a plan goes bankrupt or becomes distressed, the rules, as well as the circumstances can make the administration of these responsibilities a powder keg of liability for all involved. Companies and other individuals that in name or in function possess or exercise discretionary responsibility or authority over the maintenance, administration or funding of employee benefit plans regulated by ERISA frequently are found to be accountable for complying with the high standards required by ERISA for carrying out these duties based on their functional ability to exercise discretion over these matters, whether or not they have been named as fiduciaries formally.

Despite these well-document fiduciary exposures and a well-established pattern of enforcement by the Labor Department and private plaintiffs, many companies and their business leaders fail to appreciate the responsibilities and liabilities associated with the establishment and administration of employee benefit plans. Frequently, companies sponsoring their employee benefit plans and their executives mistakenly assume that they can rely upon vendors and advisors to ensure that their programs are appropriately established the establishment and maintenance of these arrangements with limited review or oversight by the sponsoring company or its management team.

In other instances, businesses and their leaders do not realize that the functional definition that ERISA uses to determine fiduciary status means that individuals participating in discretionary decisions relating to the employee benefit plan, as well as the plan sponsor, may bear liability under many commonly occurring situations if appropriate care is not exercised to protect participants or beneficiaries in these plans.

For this reason, businesses providing employee benefits to employees or dependents, as well as members of management participating in, or having responsibility to oversee or influence decisions concerning the establishment, maintenance, funding, and administration of their organization’s employee benefit programs need a clear understanding of their responsibilities with respect to such programs, the steps that they should take to demonstrate their fulfillment of these responsibilities, and their other options for preventing or mitigating their otherwise applicable fiduciary risks.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on Mishandling Employee Benefit Obligations Creates Big Liabilities For Distressed Businesses & Their Business Leaders | Bankruptcy, Corporate Compliance, Defined Benefit Plans, Employee Benefits, Employers, ERISA, Fiduciary Responsibility, Health Plans, Internal Controls, Internal Investigations, Professional Liability, Restructuring, Retirement Plans | Tagged: Bankruptcy, Corporate Compliance, Distressed Company, E&O Liability, EBSA, ERISA, Fiduciary Liability, Fiduciayr Responsibility, Officers & Directors Liability, Reorganization, Restructuring | Permalink
Posted by Cynthia Marcotte Stamer

DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses

December 18, 2009

By Cynthia Marcotte Stamer

U.S. businesses need to tighten their disability discrimination defenses in light of announced U.S. Department of Labor (DOL) plans to plans to tighten regulatory protections for and step up enforcement of laws protecting disabled veterans and other disabled employees.

Secretary of Labor Hilda Solis on December 7, 2009 announced plans to revise and tighten regulations implementing the disability discrimination provisions of Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) as part of the DOL Regulatory Agenda for the upcoming year. These laws require Federal contractors to take affirmative action to employ individuals with disabilities and disabled veterans. Both laws are enforced by the Department’s Office of Federal Contract Compliance Programs (OFCCP) and generally apply to federal government contractors and subcontractors.

In furtherance of these goals, OFCCP recently published:

An Advance Notices of Proposed Rulemaking (ANPRM) concerning “The Evaluation of Recruitment and Placement Results under Section 503 of the Rehabilitation Act of 1973, as amended, (Section 503).” (ANPRM); and
The Evaluation of Recruitment and Placement Results under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) Notice of Proposed Rulemaking (NPRM).

In preparation for these regulatory changes, the OFCCP will be inviting public comment proposals to tighten these affirmative action requirements, holding town hall meetings, and inviting other input.

SECTION 503 ANPRM

As part of the ANPRM concerning disability discrimination in violation of Section 503, OFCCPE is compiling research and information barriers to employment that individuals with disabilities face. Toward that end, it plans to review data that may be used for establishing numerical goals. The agency plans to conduct several Town Hall meetings through Spring 2010. The ANPRM will invite the public to comment on ways to improve employment opportunities for individuals with disabilities. The ANPRM will seek comments on issues such as:

How affirmative action requirements can be strengthened so that employment opportunities for people with disabilities are measurably increased;
How federal contractors and subcontractors can improve monitoring of their employment practices to identify barriers to the employment of individuals with disabilities and improve employment opportunities; and
What specific employment practices have been verifiably effective in the recruitment.

VERRA NPRM

Concurrently, the VEVRRA NPRM is targeted at supporting the successful transition of servicemen and women into the civilian workforce, especially disabled veterans and those returning from Iraq and Afghanistan. OFCCP plans to design the proposed VEVRRA regulation to:

Increase employment opportunities for protected veterans with federal contractors and subcontractors; and
Strengthen affirmative action requirements so that federal contractors and subcontractors will be required to increase monitoring of employment practices in order to improve recruitment, hiring, training and other employment opportunities for veterans.

EMPLOYER STRATEGIES FOR MITIGATING DISABILITY DISCRIMINATION EXPOSURES

The OFCCP’s announcement of plans to seek to tighten affirmative action protections for veterans and other employees with disabilities reflects the heightened emphasis that the OFCCP and other federal agencies are placing the enactment and enforcement of protections for persons with disabilities under the Obama Administration.

Following on the heels of Congress’ recent expansion of the availability of the employment disability discrimination protections of the Americans With Disabilities Act and new genetic information nondiscrimination requirements under the Genetic Information Nondiscrimination Act, the OFCCP’s plans to tighten existing OFCCP affirmative action requirements for persons with disabilities reflect the heightened disability discrimination risks for employers.

U.S. businesses concerned about these developments may wish to pursue a variety of steps to help mitigate their risks. For instance, government contractors and other employers may wish to consider:

Broadening efforts to recruit persons with disabilities where appropriate and document these efforts
Auditing existing employment, recruitment and other policies and practices for compliance with these evolving federal requirements concerning the employment rights of persons with disabilities;
Conducting well-documented training and other activities that demonstrate your company’s commitment/openness to the employment of veterans and others with disabilities;
Promptly conducting well-documented investigations into claims and other events that might suggest possible prohibited employment discrimination against persons with disabilities;
Monitoring OFCCP, EEOC and other regulatory and enforcement activities for the proposal or enactment of new requirements or enforcement positions;
Submitting comments or providing other input to federal regulators and legislators regarding regulations or legislation that might be of concern before it is enacted, where appropriate; and
Reviewing and tightening disability discrimination reporting and investigation procedures; and
Evaluating the adequacy of your company’s existing employment practices and other liability insurance in light of expanding liability exposures.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

GINA Discussion Topic At February HHS Advisory Committee on Genetics, Health & Society Meeting

Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA

Added IRS Guidance For Correcting Employment Tax Overpayments Released

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E)

PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January

Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business

Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities

Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act

Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects

US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements

Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

“Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

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Posted by Cynthia Marcotte Stamer

Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA

December 14, 2009

By Cynthia Marcotte Stamer

Businesses sponsoring employee benefit plans and officers, directors, employees and others acting as fiduciaries with respect to these employee benefit plans should take steps to confirm that all of the appropriate fiduciary bonds required by the Employee Retirement Income Security Act of 1974, as amended (ERISA) are in place, that all employee benefit plans sponsored are appropriately covered, and that all individuals serving in key positions requiring bonding are covered and appropriately qualified to serve in that capacity under ERISA and the terms of the bond. Adequate attention to these concerns not only is a required component of ERISA’s fiduciary compliance, it also may provide invaluable protection if a dishonesty or other fiduciary breach results in a loss or other exposure.

ERISA generally requires that every employee benefit plan fiduciary, as well as every other person who handles funds or other property of a plan (a “plan official”), be bonded if they have some discretionary control over a plan or the assets of a related trust. While some narrow exceptions are available to this bonding requirement, these exceptions are very narrow and apply only if certain narrow criteria are met.

Plan sponsors and other plan fiduciaries should take steps to ensure that all of the bonding requirements applicable to their employee benefit plans are met at least annually. Monitoring these compliance obligations is important not only for the 401(k) and other retirement plans typically associated with these requirements, but also for self-insured medical and other ERISA-covered employee benefit plans.

The bonding and credentialing audit should include adopting a written policy requiring appropriate credentialing and bonding and verifying that appropriate bonds are in place for all internal personnel and outside service providers subject to the bonding requirements.

Steps should be taken to ensure that the required fiduciary bonds are secured in sufficient amounts and scope to meet ERISA’s requirements. In addition to confirming the existence and amount of the fiduciary bonds, plan sponsors and fiduciaries should confirm that each employee plan for which bonding is required is listed in the bond and that the bond covers all individuals or organizations that ERISA requires to be bonded. For this purpose, the review should verify the sufficiency and adequacy of bonding in effect for both internal personnel as well as outside service providers. In the case of internal personnel, the adequacy of the bonds should be reviewed annually to ensure that bond amounts are appropriate. Unless a service provider provides a legal opinion that adequately demonstrates that an ERISA bonding exemption applies, plan sponsors and fiduciaries also should require that third party service providers provide proof of appropriate bonding as well as to contract to be bonded in accordance with ERISA and other applicable laws, to provide proof of their bonded status or documentation of their exemption, and to provide notice of events that could impact on their bonded status.

When verifying the bonding requirements, it also is a good idea to conduct a criminal background check and other prudent investigation to reconfirm the credentials and suitability of individuals and organizations serving in fiduciary positions or otherwise acting in a capacity covered by ERISA’s bonding requirements. ERISA generally prohibits individuals convicted of certain crimes from serving, and prohibits plan sponsors, fiduciaries or others from knowingly hiring, retaining, employing or otherwise allowing these convicted individuals during or for the 13-year period after the later of the conviction or the end of imprisonment, to serve as:

An administrator, fiduciary, officer, trustee, custodian, counsel, agent, employee, or representative in any capacity of any employee benefit plan,
A consultant or adviser to an employee benefit plan, including but not limited to any entity whose activities are in whole or substantial part devoted to providing goods or services to any employee benefit plan, or
In any capacity that involves decision-making authority or custody or control of the moneys, funds, assets, or property of any employee benefit plan.

Knowing or intentional violation of this prohibition may expose violating party to fines of up to $10,000, imprisonment for not more than five years, or both. Even where the violation is not knowing or willful, however, allowing disqualified persons to serve in fiduciary roles can have serious consequences such as exposure to Department of Labor penalties and personal liability for breach of fiduciary duty for damages resulting to the plan if it is established that the retention of services was an imprudent engagement of such an individual that caused the loss. When conducting such a background check, care should be taken to comply with the applicable notice and consent requirements for conducting third party conducted background checks under the Fair Credit Reporting Act (FCRA) and otherwise applicable law. As such background investigations generally would be conducted in such a manner as to qualify as a credit check for purposes of the FCRA, conducting background checks in a manner that violates the FCRA credit check requirements itself can be a source of significant liability.

Curran Tomko Tarski LLP Attorneys Can Help

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers, fiduciaries, bankruptcy trustees, investors, purchasers and others about defined benefit plan and other employee benefit, labor and employment, compensation and other related concerns involved with distressed businesses or benefit plans, bankruptcy and restructuring transactions and other corporate or plan related events. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a Joint Committee on Employee Benefit Council Member, Ms. Stamer has advised and represented these and other business clients on employee benefit, labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Her experience includes significant experience representing and advising employee benefit plan sponsors, fiduciaries, and service providers and their affiliates; investors, creditors, bankruptcy trustees, and others about employee benefit, labor and employment and related services and compensation concerns affecting transactions involving bankrupt or distressed corporations. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Added IRS Guidance For Correcting Employment Tax Overpayments Released

December 10, 2009

By Cynthia Marcotte Stamer

The Internal Revenue Service has released an advance copy of new guidance illustrating how employers should apply the processes for correcting employment tax overpayments under Internal Revenue Code sections 6205, 6402, 6413,and 6414 by applying final regulations that the IRS published on August 11, 2008 in Treasury Decision 9405 (TD 9405). The new guidance set forth in Revenue Ruling 2009-39 is scheduled for publication in the Federal Register on December 28, 2009.

TD 9405 amends the process for making interest-free adjustments of employment taxes under sections 6205 and 6413, and claiming refunds of employment taxes under sections 6402 and 6414. TD 9405 was initiated in connection with the Service’s development of new “X” forms (e.g., Form 941-X, Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund) as part of the Form 94X Project initiated by the Office of Taxpayer Burden Reduction and now led by SBSE Employment Tax Policy. Revenue Ruling 2009-39 applies the final regulations under TD 9405 to 10 different situations to show how the new processes operate.

If your organization needs assistance with monitoring, assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

December 8, 2009

By Cynthia Marcotte Stamer

The U.S. Department of Labor (Labor Department) plans to implement a host of new employee benefit and employment regulations seeking to strengthen employee benefit, wage and hour, safety and other protections with greater transparency and disclosure, the Labor Department announced yesterday.

Employee Benefits, Wage & Hour, OSHA & Other Rules Seek To Protect Workers With Transparency

Employee Benefits Security Administration (EBSA) plans to implement a host of new rules designed to strengthen retirement security by expanding the private employee benefit plan disclosure requirements and enhancing the availability of information to pension plan participants and beneficiaries and employers, according to the Department of Labor (DOL) 2009 Regulatory Agenda (the “Regulatory Agenda”) announced yesterday.

According to the Regulatory Agenda, EBSA plans to promote these goals through the implementation of a host of new rules including:

Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans, which would increase transparency between individual account pension plans and their participants and beneficiaries by ensuring that participants and beneficiaries are provided the information they need, including information about fees and expenses, to make informed investment decisions.
Amendment of Standards Applicable to General Statutory Exemption for Services, which would require service providers to disclose to plan fiduciaries services, fees, compensation and conflicts of interest information.
Annual Funding Notice for Defined Benefit Plans, which would require defined benefit plan administrators to provide all participants, beneficiaries and other parties with detailed information regarding their plan’s funding status.
Periodic Pension Benefits Statements, which would require pension plans to provide participants and certain beneficiaries with periodic benefit statements.
Multiemployer Plan Information Made Available on Request, which would require pension plan administrators to provide copies of financial and actuarial reports to participants and beneficiaries, unions and contributing employers on request.

The 2009 Regulatory Agenda highlights the most noteworthy and significant regulatory projects that the Labor Department has established for the EBSA, the Employment Standards Administration (ESA), Mine Safety and Health Administration (MSHA), Occupational Safety and Health Administration (OSHA), and Employment and Training Administration (ETA) for the upcoming year. In addition to the transparency rules planned for EBSA, the 2009 Regulatory Agenda also indicates that employers can expect new Labor Department regulations targeting transparency in other areas. These include:

The MSHA to propose a rule on Notification of Legal Identity, which would require mine operators to provide increased identification information, would allow the agency to better target the most egregious and persistent violators and deter future violations.
The Office of Labor-Management Standards’ to propose regulations on Notification of Employee Rights Under Federal Labor Laws, which would implement Executive Order 13496 and require all Government contracting agencies to include a contract clause requiring contractors to inform workers of their rights under Federal labor laws.
The Wage and Hour Division to update its regulations about Records to be Kept by Employers Under the Fair Labor Standards Act to enhance the transparency and disclosure to workers as to how their wages are computed and to allow for new workplace practices such as telework and flexiplace arrangements.
OSHA to modify its Hazard Communication Standard to require standardized labeling requirements and order of information for safety data sheets and to update its Occupational Injury and Illness Recording and Reporting Requirements rule, which would propose the collection of additional data to help employers and workers track injuries at individual workplaces, improve the Nation’s occupational injury and illness information data, and assist the agency in its enforcement of the safety and health workplace requirements.

Other Employee Benefit Regulations Planned

Beyond its planned EBSA transparency initiative, the 2009 Regulatory Agenda reflects that other EBSA regulatory priorities for the year ahead include:

Issue guidance implementing the group health plan Genetic Information Nondiscrimination Act of 2008 (GINA) amendments to ERISA which generally prohibit group health plans from discriminating in health coverage based on genetic information and from collecting genetic information. This will be a joint rulemaking action with the Departments of Health and Human Services and the Treasury.
Provide guidance regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) amendments to ERISA. MHPAEA creates parity for mental health and substance use disorder benefits under group health plans by mandating that any financial requirements and treatment limitations applicable to mental health and substance abuse disorder benefits to be no more restrictive than predominant requirements or limitations applied to substantially all medical and surgical benefits covered by a plan.
Issue guidance clarifying the circumstances under which health care arrangements established or maintained by state or local governments for the benefit of non-governmental employees do not constitute an employee welfare benefit plan for purposes of ERISA.
Propose amendments to its regulations to clarify the circumstances under which a person will be considered a fiduciary when providing investment advice to employee benefit plans and their participants and beneficiaries of such plans.
Explore steps it can take by regulation, or otherwise, to encourage the offering of lifetime annuities or similar lifetime benefits distribution options for participants and beneficiaries of defined contribution plans.

Employers and employee benefit plan sponsors, fiduciaries, and service providers should take into account these planned regulatory changes for budgeting and program design purposes and keep alert for announcements of proposed or final regulations or other guidance in these and other areas.

Other Information & Resources

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Posted by Cynthia Marcotte Stamer

DOL Shares 2010 Regulatory Plans Monday, December 7; Get A Sneak Peek on Its Plans

December 5, 2009

Get a peek at the U.S. Department of Labor’s (DOL’s) regulatory plans for 2010 on Monday, December 10, 2009.

On Monday, Dec. 7, the DOL will release its annual regulatory agenda for the upcoming year. The same day, it also will video cast remarks by Secretary Hilda L. Solis outlining the department’s regulatory agenda beginning at 10 a.m. EST. From 2 to 3 p.m. EST Ssecretary Solis alsowill host a live Web chat open to the public to discuss the contents of the agenda. Questions may be submitted in advance of the chat following the video presentation. Register to join the chat on Monday here.

If your organization needs assistance with assessing, managing or defending labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E) PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take EffectBusinesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures OSHA Final Rule Updates OSHA Personal Protective Equipment Standards “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on DOL Shares 2010 Regulatory Plans Monday, December 7; Get A Sneak Peek on Its Plans | Absenteeism, Affirmative Action, COBRA, Corporate Compliance, Disease Management, EEOC, Employee Benefits, Employers, Employment Agreement, ERISA, family leave, FMLA, GINA, Government Contractors, Health Plans, HIPAA, Human Resources, Internal Controls, Internal Investigations, Leave, medical leave, Military Leave, Nonresident aliens, OFCCP, OSHA, Public Policy, Reporting & Disclosure, Retaliation, Safety, USERRA, Wage & Hour, Wellness, Whistleblower | Tagged: ADA, COBRA, Compensation, Corporate Compliance, defined benefit plan, Disease Management, EEOC, Employee Benefits, Employer, Employers, Employmemnt Liability, Employment, Employment Agreements, employment discrimination, ERISA, GINA, Health Care Reform, Health Insurance, Health Plans, Human Resources, Internal Controls, Internal Investigations, Labor, Light Duty, Managed Care, Medical Coverage, Military Leave, Minimum Wage, Occupational Injury, Overtime, Risk Management, Wellness | Permalink
Posted by Cynthia Marcotte Stamer

PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January

December 4, 2009

by Cynthia Marcotte Stamer

The Pension Benefit Guarantee (PBGC) recently published a Final Rule that broadens the pension benefit guarantee protection provided for private pension benefits of military service members protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) beginning December 17, 2009 .

USERRA provides that an individual who leaves a job to serve in the uniformed services is generally entitled to reemployment by the previous employer and, upon reemployment, to receive credit for benefits, including employee pension plan benefits, that would have accrued but for the employee’s absence due to the military service.

Before the publication of the Final Regulation on November 17, 2009, PBGC’s benefit payments regulation provided for a benefit only if the participant satisfies the conditions for entitlement to the benefit on or before the plan’s termination date.

Effective December 17, 2009, the Final Regulation final rule provides that so long as a service member is reemployed within the time limits set by USERRA, even if the reemployment occurs after the plan’s termination date, PBGC will treat the service member as having satisfied the reemployment condition as of the termination date. This will ensure that the pension benefits of reemployed service members, like those of other employees, will generally be guaranteed for periods up to the plan’s termination date. The change will apply to reemployments under USERRA initiated on or after December 12, 1994. Once the final rule is effective, PBGC will begin adjusting final benefit determinations of affected participants and make back payments with interest.

In addition to broadening PBGC benefit guarantee protection for service members, the Federal government also stepping up enforcement of the provisions of USERRA against private employers. A lawsuit filed by the Justice Department on November 30, 2009 against an employer for allegedly violating the reemployment rights of a military service member is the 22nd filed during 2009 by the Civil Rights Division on behalf of service members. It highlights the growing liability risks that employers face for failing to properly comply with the evolving military leave mandates of USERRA and other applicable laws.

Curran Tomko Tarski LLP Can Help

If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business

December 4, 2009

Underfunded defined benefit pension plans raise significant liability risks for businesses that sponsor or who belong to control or affiliated service groups that include a business that sponsors an underfunded defined benefit plan as well as for businesses contemplating lending to, investing in, or purchasing stock or assets of these businesses.

Radical drops in plan asset values attendant to the economic downturn and Congress’ amendment of federal funding rules to accelerate the funding of defined benefit plans have triggered a defined benefit plan underfunding epidemic. Indeed, challenges of meeting their defined benefit plan funding obligations increasingly are resulting in an unprecedented number of distress terminations and forcing many businesses to restructure or even file bankruptcy. Currently, recently released Internal Revenue Service (IRS) and Pension Benefit Guarantee Corporation (PBGC) guidance makes it necessary or desirable that sponsoring businesses or fiduciaries of defined benefit plans take action before year end or shortly thereafter to meet critical compliance deadlines.

Complex New Rules Increase Underfunding Risks & Obligations

The new rules seek to implement Congressional amendments to the pension funding requirements intended to short up the security of the U.S. pension system and the pension guarantee insurance program run by the PBGC under the Pension Protection Act of 2006, as amended (PPA). Under the PPA, single-employer plans that are between 60 and 80 percent funded may not pay lump sums or other accelerated distribution forms with values in excess of: (1) 50 percent of the amount that would be paid absent the restriction or, if smaller (2) the present value of PBGC’s maximum guarantee computed under PBGC guidance. The PPA also requires certain funding certifications, notices and other requirements.

Enacted while the economy was strong, the burden of meeting the added pension funding demands resulting from the decreased earnings and acceleration of benefits associated with the economic downturn combined with the new rules’ expedited funding requirements are overwhelming many plan sponsors. With the economic downturn, however, the prospects for Congressional or other regulatory relief are not good. The PBGC is straining to keep up. The 2009 Annual Management Report submitted to Congress in November shows the PBCG ended fiscal year 2009 with an overall deficit of $22 billion, compared with the $11.2 billion deficit for fiscal year 2008. The deficit in the PBGC’s insurance program for single-employer pension plans widened to $21.1 billion for the year, $10.4 billion more than the prior-year’s $10.7 billion shortfall. The separate insurance program for multiemployer pension plans posted a deficit of $869 million, exceeding last year’s $473 million shortfall by $396 million. Accordingly, the PBGC and the IRS have continued to roll out a series of complex new regulations to implement the new rules.

New Defined Benefit Plan Regulations Complex Maze of Burdensome Requirements

Single employer pension plans generally must begin complying with final funding regulations published by the IRS in October during 2010; however, many plan sponsors are likely to find it desirable to adopt certain amendments or take other steps during 2009. Under these rules, underfunded plan benefit accruals and certain amendments will be curtailed and certain notifications, certifications and other actions required. Timely compliance with these mandates can help to mitigate some of the otherwise draconian liability associated with pension plan underfunding while helping to mitigate the continuing growth of these liabilities in an already underfunded pension plan.

Under section 101(f) of ERISA and guidance issued by the Department of Labor, starting with plan years beginning on or after January 1, 2008, single-employer plans with liabilities that exceed plan assets by $50 million or more must provide PBGC with a copy of the Annual Funding Notice by the Annual Funding Notice due date. Single-employer plans with liabilities that exceed plan assets by less than $50 million must provide PBGC with a copy of the Annual Funding Notice within 30 days of receiving a written request from PBGC. See Department of Labor Field Assistance Bulletin No. 2009-01 (Feb. 10, 2009), here.

In addition, defined benefit pension plans, their sponsors and fiduciaries also must contend with a host of complex new PBGC insurance, premium, certification and reporting and other requirements and guidance. For instance:

On March 16, 2009, PBGC published a Final Rule that amends its regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010). The final rule implements Pension Protection Act of 2006 changes to ERISA section 4010 and makes other modifications and clarifications to the reporting requirements. PBGC expects to update the e-4010 filing application and related materials (e.g., filing instructions) within a few days. Until the application is updated, filers should not attempt to enter data for post-PPA filing; such data will be lost when the application is updated. However, first-time filers may log on to the application to set up an account and familiarize themselves with the application, through here. The first filings under the new rules were due April 15, 2009.

On November 23, 2009, PBGC published:

A Request For Public Comment on purchases of irrevocable commitments to provide plan benefits before initiating a standard termination under ERISA section 4041. Comments are due by January 22, 2010;
A Proposed Rule that would conform PBGC’s reportable events regulation under section 4043 of ERISA and several other PBGC regulations to statutory and regulatory changes resulting from the Pension Protection Act of 2006. The proposed rule also would eliminate most of the automatic waivers and filing extensions, add two new reportable events, and make some other changes and clarifications. Comments on the proposed rule are due by January 22, 2010;
Asked the Office of Management and Budget a request for approval of changes to the reporting requirements under ERISA Part 4043;
Issued Technical Update 09-4, which extends guidance provided in Technical Update 09-1 and Technical Update 09-3 for 2010 plan years. PBGC expects to supersede the guidance in Technical Update 09-4 with a final rule amending the reportable events regulation sometime during 2010.

On December 1, 2009, PBGC:

Published a Final Rule amending its valuation regulation by substituting a new table for selecting a retirement rate category. The new table applies to any plan being terminated either in a distress termination or involuntarily by the PBGC with a valuation date falling in 2010.
Published a Final Rule removing the maximum guarantee table from its benefit payment regulation and telling the public where to find maximum guaranteeable benefits on its Web site. The maximum guaranteeable monthly benefit for 2010 is $4,500.00 (unchanged from 2009).
Published a Notice stating that the per-participant flat-rate premium for single-employer plans for plan year 2010 is $35.00 (up from $34.00 for Plan Year 2009) and $9.00 (unchanged from Plan Year 2009) for multiemployer plans. By law, the premium rates are adjusted for inflation each year based on changes in the national average wage index. The notice states that no further flat premium rate notices will be published in the Federal Register and tells the public where to find flat premium rates on its Web site.

On December 4, 2009, PBGC submitted draft information requirements to the Office of Management and Budget in connection with PBGC’s pending Proposed Rule on Reportable Events are now available on PBGC’s Web site. PBGC has posted the information that would be required (under the proposed rule) to be reported on Form 10, Form 10-A, and Form 200 and the corresponding draft instructions.

Previously, during 2009, the PBGC also:

Announced an increase in the per-participant flat-rate premium for plan year 2010 to $35.00 for single-employer plans (up from $34.00 for plan year 2009) and to $9.00 for multiemployer plans (unchanged from plan year 2009).
Published certain relief for certain small plans from part 4043 reporting requirements if a required quarterly contribution for the 2009 plan year is not timely made to a plan, and the failure to make the contribution is not motivated by financial inability under Technical Update 09-3.. The Technical Update waives reporting in such cases if the plan has fewer than 25 participants and provides a simplified reporting requirement if the plan has at least 25 but fewer than 100 participants.
Issued Technical Update 09-2, which allows 4010 filers to determine benefit liabilities for 4010 reporting purposes using the form of payment assumption described in 29 CFR § 4044.51 (generally an annuity form of payment). This is an alternative to the form-of-payment-assumption under § 4010.8(d)(2)(i) of PBGC’s Final Regulation On 4010 Reporting, which requires filers to use the form-of-payment assumption for determining the minimum required contribution.
Updated the e-4010 filing application and related materials have been updated to reflect changes in the March 16, 2009 Final Rule. The application is now available to accept post-Pension Protection Act of 2006 filings.

Free December 10 Study Group Teleconference Examines New Requirements

Persons concerned about these issues may wish to consider participating in a free one hour “Study Group” conference call that the American Bar Association RPTE Employee Benefits & Other Compensation Group (Group) plans to host December 10, 2009, at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific. The Study Group will explore a number of current/breaking issues of interest to practitioners and their clients dealing with single-employer defined benefit plans. Key topics will include:

Recent Regulatory Guidance on Funding and Benefit Restrictions
Mandatory and Optional Amendments to be Adopted by 2009 Plan Year End
PBGC Proposal to Eliminate Most Reporting Waivers and Extensions (and PBGC Interim Guidance)
Pre-Standard Termination Irrevocable Commitment Purchases (PBGC Comment Request)
Update on PBGC Pursuit of “Downsizing” Liability (ERISA Section 4062(e)).

The conference call will be moderated by:

Group Chair, Cynthia Marcotte Stamer, Curran Tomko Tarski LLP, Dallas, TX;
Group’s Plan Termination Committee Chair, Harold Ashner, Keightley & Ashner LLP, Washington, DC, and
Group’s Plan Termination Committee Vice-Chair, Henry Talavera, Hunton & Williams LLP, Dallas, TX.

Interested persons can participate in the Study Group by dialing 1-800-504-8071 and entering the passcode 9885683. To assist the Group in anticipating the number of participants, the Group encourages those planning to participate to e-mail Group Chair Cynthia Marcotte Stamer at here to RSVP.

Curran Tomko Tarski LLP Attorneys Can Help

If your business needs assistance with distressed or bankruptcy company, defined benefit plan funding or other employee benefit, human resources, corporate ethics, and compliance practices, or other related concerns or in responding to restructuring and bankruptcy, employment or employee benefits related charges, audits, investigations or suits, please contact Curran Tomko Tarski LLP Corporate Restructuring & Bankruptcy Chair G. Michael Curran at mcurran@cttlegal.com, (214) 270-1402, Employment Practice Chair Cynthia Marcotte Stamer at cstamer@cttlegal.com, (214) 270-2402, or your favorite Curran Tomko Tarski, LLP attorney.

Mr. Curran provides legal counsel on all aspects of out-of-court reorganizations and workouts, as well as bankruptcy proceedings. He has represented debtors, debtors’ and creditors’ committees, and third party purchasers in a variety of complex factual and legal scenarios, and has also acted as special counsel. His experience includes substantial experience addressing defined benefit and other employee benefit and human resources issues arising in connection with restructuring, bankruptcy and other significant business events and transactions.

Ms. Stamer is experienced with assisting employers, fiduciaries, bankruptcy trustees, investors, purchasers and others about defined benefit plan and other employee benefit, labor and employment, compensation and other related concerns involved with distressed businesses or benefit plans, bankruptcy and restructuring transactions and other corporate or plan related events. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a Joint Committee on Employee Benefit Council Member, Ms. Stamer has advised and represented these and other business clients on employee benefit, labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Her experience includes significant experience representing and advising employee benefit plan sponsors, fiduciaries, and service providers and their affiliates; investors, creditors, bankruptcy trustees, and others about employee benefit, labor and employment and related services and compensation concerns affecting transactions involving bankrupt or distressed corporations. Ms. Stamer also speaks and writes extensively on these and other related matters. Among her many publications is her November, 2009 publication, “Calculation of Minimum Contributions Required For Single Employer Pension Plans: The Final Rules for The Measurement of Assets and Liabilities For Pension Funding Purposes under Final Treasury Regulation Section 1.430(d)-1.” Persons interested in a copy of this publication may contact Ms. Stamer. See here for additional information about Ms. Stamer and her experience, here to review other recent updates, here for other articles and publications, and review selected training and presentations here or contact Ms. Stamer directly.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities

December 1, 2009

The Justice Department yesterday (November 30, 2009) filed suit against MasTec Advanced Technologies for allegedly willfully violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by discriminating against Eugene C. Burress, a U.S. Army Reserve member, on the basis of his military service and by failing to offer Burress an appropriate reemployment position when he returned from military service. The 22nd USERRA lawsuit filed during 2009 by the Civil Rights Division on behalf of service members, the lawsuit highlights the growing liability risks that employers face for failing to properly comply with the evolving military leave mandates of USERRA and other applicable laws.

The MasTec Lawsuit

In a complaint filed in federal court in West Virginia, the Justice Department alleges that, in January 2008, Burress, then a field technician supervisor at MasTec’s Martinsburg, W.Va., office, was called to active duty in the U.S. Army, and that Burress notified his supervisor at MasTec of his upcoming military service. Prior to giving this notice of call to active duty, Burress’ supervisor had informed Burress that the site manager position at the office would be vacant soon and offered the position to Burress when it became available. Burress accepted this offer. While Burress was engaged in military service, however, MasTec promoted another MasTec employee to site manager. Burress filed a complaint with the Labor Department’s Veterans’ Employment and Training Service, which investigated and attempted to resolve Burress’s USERRA complaint before referring it to the Justice Department. The Justice Department seeks back pay and other benefits Burress would have received had MasTec reemployed him as required by USERRA, as well as liquidated damages for MasTec’s willful violation of USERRA.

Evolving USERRA & Other Military Service Related Leave Requirements Make Compliance Review Advisable

USERRA prohibits an employer discriminating against an employee if the employee’s service or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such service or obligation for service. USERRA also requires that service members on leave be offered the opportunity to continue group health plan coverage for certain periods while on leave. Subject to certain limitations, USERRA also requires that employers offer reemployment promptly to service members who leave their civilian jobs to serve in the military in the same positions or in positions comparable to the positions they would have held had their employment not been interrupted by military service and be reinstated to all benefits and other rights of employment at that time. Although Final Regulations construing these requirements were issued in 2005, many employers have yet to update their practices and policies to comply with the current USERRA mandates. Furthermore, compliance with these mandates often creates various practical operational challenges even for U.S. businesses who fully understand these rules.

In addition to USERRA, U.S. businesses also may need to update their policies and procedures to comply with new military leave related rights recently extended to service members and their families under amendments to the Family & Medical Leave Act of 1990 (FMLA) that took effect on January 28, 2008 under the National Defense Authorization Act for Fiscal Year 2008 (2008 NDA). In addition to the otherwise applicable provisions of the FMLA, the 2008 NDA amended the FMLA to require under certain circumstances that covered employers grant FMLA Leave:

For up to 26 weeks FMLA Leave to a FMLA-covered employees who is the spouse, parent, child, or next of kin of a service member who incurred a serious injury or illness on active duty in the Armed Forces (Caregiver Leave); and
For up to 12 weeks of FMLA Leave to a FMLA-covered employee who has a spouse, parent, or child who is on or has been called to (or notified of an impending call or order to) active duty in the Armed Forces in response to an event that is a “qualifying exigency” (Military Exigency Leave).

Final regulations implementing the 2008 NDA FMLA mandates and other FMLA requirements took effect on January 16, 2009.

With these regulations barely dry, however, Congress this Fall further expanded these FMLA protections as part of amendments enacted by the National Defense Authorizations Act 2010 (2010 NDAA) that took effect October 29, 2009. Among other things, the 2010 NDAA:

Expanded FMLA Military Exigency Leave to apply to active duty service members deployed to a foreign country. Previously, Military Exigency Leave only applied to reservists.
Expanded Military Caregiver Leave to include care for a service member who aggravates a prior injury or illness during the course of his military service. Previously, aggravation of an illness or injury did not qualify for Military Caregiver Leave; and
For periods after the Secretary of Labor issues regulations defining the term “qualifying injury or illness” for a veteran, extended Military Caregiver Leave to include veterans who undergo medical treatment, recuperation or therapy for a qualifying injury or illness, as long as the service member was a member of the reserves or armed forces at any time during the five years before the veteran undergoes treatment. Military Caregiver Leave previously was not inapplicable to veterans.

Following these amendments, Congress continues to contemplate various other proposed expansions to these and other military service employment and other rights.

The recent changes to federal employment protections for military service members and their families and the increased emphasis on enforcement of these requirements make it advisable that employers review and revise their military leave, family leave and other employment policies,, employee benefit plans, and other policies and practices for compliance with current rule, while remaining alert for statutory or regulatory changes to these requirements. Employers also should confirm that their employment posters and leave notification documentation and communications are up to date.

While reviewing current military service related leave policies and practices, employers also should confirm that they complying with recently revised Internal Revenue Service rules about reporting and withholding on differential pay paid to employees during military leave. This Spring, the Internal Revenue Service updated its guidance about these requirements. Under Revenue Ruling 2009-11, employers that pay differential pay to employees absent on active duty military leave job must treat as taxable wages for income tax purposes, withhold income tax on and report as W-2 wages military duty differential pay. However, Revenue Ruling 2009-11 states employers need not withhold or pay Federal Insurance Contributions Act (“FICA”) or Federal Unemployment Tax Act (“FUTA”) taxes on those payments.

Other Information & Resources

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Posted by Cynthia Marcotte Stamer

Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers

November 30, 2009

As the 2009 Holiday Season moves into full swing, your company may want to take some common sense precautions to minimize the risk of waking up with a post-Holiday Season business liability hangover. The music, food, game playing, toasting with alcohol and other aspects of the celebratory atmosphere at holiday parties and in the workplace during the Holiday Season heighten the risk that certain employees or other business associates will engage in, or be subject to, risky or other inappropriate behavior that can create liability exposures or other business concerns for your business.

Discrimination & Sexual Harassment

Whether company-sponsored or not, holiday parties and other celebrations where employees celebrate with other employees or clients tend to fuel bad behavior by inviting fraternization, lowering inhibitions and obscuring the line between appropriate and inappropriate social and business behavior.

The relaxation of the environment heightens the risk that certain employees or clients will make unwelcome sexual advances, make sexually suggestive or other inappropriate statements, or engage in other actions that expose the business to sexual harassment or other employment discrimination liability. To minimize these exposures, businesses should take steps to communicate and reinforce company policies and expectations about sexual harassment, discrimination, fraternization and other conduct viewed as inappropriate by the company. The company should caution employees that the company continues to expect employees and business partners to adhere to company rules against sexual harassment and other inappropriate discrimination at company sponsored and other gatherings involving other employees or business associates. To enhance the effectiveness of these reminders, a company should consider providing specific guidance about specific holiday-associated activities that create heightened risks. For instance, a business that anticipates its employees will participate in white elephant or other gift exchanges involving other employees or business associates may wish to specifically include a reminder to exercise care to avoid selecting a gift that may be sexually suggestive or otherwise offensive. Businesses also may want to remind employees that the company does not expect or require that employees submit to unwelcome sexual or other inappropriate harassment when participating in parties or other social engagements with customers or other business partners.

Businesses also should use care to manage other discrimination exposures in the planning of holiday festivities, gift exchanges, and other activities. Exercise care to ensure that business connected holiday parties, communications, gifts and other December festivities reflect appropriate sensitivity to religious diversity. Businesses also should be vigilant in watching for signs of inappropriate patterns of discrimination in the selection of employees invited to participate in company-connected social events as well as off-duty holiday gatherings sponsored by managers and supervisors.

Alcohol Consumption

The prevalence of alcohol consumption during the Holiday Season also can create a range of business concerns. Most businesses recognize that accidents caused by alcohol intoxication at work or work-related functions create substantial liability exposures both to workers and any third parties injured by a drunken employee. Businesses also may face “dram shop” claims from family members or other guests attending company sponsored functions injured or injure others after being allowed to over-imbibe. To minimize these risks at company-sponsored events, many companies elect not to serve or limit the alcohol served to guests at company sponsored events. To support the effectiveness of these efforts, many businesses also choose to prohibit or restrict the consumption of guest provided alcohol at company events.

Businesses concerned with these liability exposures should take steps to manage the potential risks that commonly arise when employees or clients consume alcohol at company sponsored events or while attending other business associated festivities. Businesses that elect to serve alcohol at company functions or anticipate that employees will attend other business functions where alcohol will be served need to consider the potential liability risks that may result if the alcohol impaired judgment of an employee or other guest causes him to injure himself or someone else. Any company that expects that an employee might consume alcohol at a company sponsored or other business associated event should communicate clearly its expectation that employees not over-imbibe and abstain from driving under the influence. Many businesses also find it beneficial to redistribute information about employee assistance programs (EAPs) along with this information. You can find other tips for planning workplace parties to minimize alcohol related risks on the U.S. Department of Labor’s website here.

When addressing business related alcohol consumption, many businesses will want to consider not only alcohol consumption at business related events as well as potential costs that may arise from off-duty excess alcohol consumption. Whether resulting from on or off duty consumption, businesses are likely to incur significant health and disability related benefit costs if an employee is injured in an alcohol-related accident. Furthermore, even when no injury results, productivity losses attributable to excess alcohol consumption, whether on or off duty, can prove expensive to business. Accordingly, virtually all businesses can benefit from encouraging employees to be responsible when consuming alcohol in both business and non-business functions.

Businesses also may want to review their existing health and other benefit programs, liability insurance coverage and employment policies to determine to ensure that they adequately protect and promote the company’s risk management objectives. Many health and disability plans incorporate special provisions affecting injuries arising from inappropriate alcohol use as well as mental health and alcohol and drug treatment programs. Similarly, many businesses increasingly qualify for special discounts on automobile and general liability policies based upon representations that the business has in effect certain alcohol and drug use policies. Businesses can experience unfortunate surprises if they don’t anticipate the implications of these provisions on their health benefit programs or liability insurance coverage. Reviewing these policies now to become familiar with any of these requirements and conditions also can be invaluable in helping a business to respond effectively if an employee or guest is injured in an alcohol-related accident during the Holiday Season.

Concerned employers may want to listen in on the “Plan Safe Office Parties this Holiday Season” seminar that the National Safety Council plans to host on December 9, 2009 from 10:30 a.m. -11:30 a.m. Central Time. For more information or to register call (800) 621-7619 or see here.

Gift Giving & Gratuities

The exchange of gifts during the Holiday Season also can raise various concerns. As a starting point, businesses generally need to confirm that any applicable tax implications arising from the giving or receiving of gifts are appropriately characterized and reported in accordance with applicable tax and other laws. Government contractors, health industry organizations, government officials and other entities also frequently may be required to comply with specific statutory, regulatory, contractual or ethical requirements affecting the giving or receiving of gifts or other preferences. In addition to these externally imposed legal mandates, many businesses also voluntarily have established conflict of interest, gift giving or other policies to minimize the risk that employee loyalty or judgment will be comprised by gifts offered or received from business partners or other outsiders. Businesses concerned about these and other issues may want to review the adequacy of current business policies affecting gifting and adopt and communicate any necessary refinements to these policies. To promote compliance, businesses also should consider communicating reminders about these policies to employees and business associates during the Holiday Season. Even a simple e-mail reminder to employees that the company expects them to be familiar with and comply with these policies can help promote compliance and provide helpful evidence in the event that an employee engages in an unauthorized violation of these rules.

Performance, Attendance & Time Off

Businesses also commonly face a range of attendance and productivity concerns during December. The winter cold and flu season and other post-celebration illnesses, vacations, and winter weather inevitably combine to fuel a rise in absenteeism in December. Managing staffing needs around the legitimate requests for excused time off by employees presents real challenges for many businesses. Further complications can arise when dealing with employees suspected of mischaracterizing the reason for their absence or otherwise gaming the company’s time off policies. Meanwhile, performance and productivity concerns also become more prevalent as workers allow holiday shopping, personal holiday preparations, and other personal distractions to distract their performance. Businesses concerned with these challenges ideally will have in place well-designed policies concerning attendance, time off and productivity that comply with the Fair Labor Standards Act and other laws. Businesses should exercise care when addressing productivity and attendance concerns to investigate and document adequately their investigation before imposing discipline. Businesses also should ensure that their policies are appropriately and even-handedly administered. They also should exercise care to follow company policies, to maintain time records for non-exempt workers, to avoid inappropriately docking exempt worker pay, and to provide all required notifications and other legally mandated rights to employees taking medical, military or other legally protected leaves. In the event it becomes necessary to terminate an employee during December, careful documentation can help the business to defend this decision. Furthermore, businesses should be careful to ensure that all required COBRA notifications, certificates of creditable coverage, pension and profit-sharing notice and distribution forms, and other required employment and employee benefit processes are timely fulfilled.

Timely Investigation & Notification

Businesses faced with allegations of discrimination, sexual harassment or other misconduct also should act promptly to investigate any concerns and if necessary, take appropriate corrective action. Delay in investigation or redress of discrimination or other improprieties can increase the liability exposure of a business presented with a valid complaint and complicate the ability to defend charges that may arise against the business. Additionally, delay also increases the likelihood that a complaining party will seek the assistance of governmental officials, plaintiff’s lawyers or others outside the corporation in the redress of his concern.

If a report of an accident, act of discrimination or sexual harassment or other liability related event arises, remember to consider as part of your response whether you need to report the event to any insurers or agencies. Injuries occurring at company related functions often qualify as occupational injuries subject to worker’s compensation and occupational safety laws. Likewise, automobile, employment practices liability, and general liability policies often require covered parties to notify the carrier promptly upon receipt of notice of an event or claim that may give rise to coverage, even though the carrier at that time may not be obligated to tender a defense or coverage at that time.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

November 30, 2009

As the Centers for Disease Control (CDC) continues cautioning Americans to expect a resurgence of the H1N1 virus, employers should continue to take prudent steps to defend their organization and their workers against a widespread H1N1 outbreak and the attendant lost time, health and disability costs, OSHA and other liability exposures and other personal and financial consequences likely to result from an outbreak.

Employers wishing to deter the spread of the disease in their workplace should educate workers about these recommendations and consider taking steps to encourage workers to comply with these recommendations. When planning or taking steps to protect their workplaces from the H1N1 virus pandemic or other outbreaks of communicable diseases, however, employers must use care to avoid violating the Americans With Disabilities Act or other employment laws.

Preventing, Recognizing & Mitigating Risks of H1N1

Although the number of reported cases of H1N1 virus cases has declined in many states in recent weeks, CDC officials are warning American’s that the crisis is not over yet. CDC officials last week warned Americans to expect H1N1 infection to rise as the holiday approaches and the winter progresses. With flu activity already higher than what is seen during the peak of many regular flu seasons and the H1NA virus accounting for almost all of the flu viruses identified so for this season, Accordingly, the CDC continues to encourage Americans to be alert for symptoms of H1N1 or other flu and to take other precautions including to get vaccinated.

Employers should continue to encourage workers and their families to take precautions to avoid catching the virus, to be on the watch for H1N1 virus or other flu infection and to respond appropriately if they, members of their families or others in the workplace exhibit these symptoms. To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC here. Businesses and other concerned parties also can track governmental reports about the swine flu and other pandemic concerns at here.

For those not already suffering from the virus and particularly for those at higher risk, the CDC continues to recommend vaccination. People recommended by the CDC to receive the vaccine as soon possible include: health care workers; pregnant women; people ages 25 through 64 with chronic medical conditions, such as asthma, heart disease, or diabetes; anyone from 6 months through 24 years of age; and people living with or caring for infants under 6 months old. As the vaccine becomes available, many employers are encouraging workers and their families to get vaccinated by offering vaccination clinics at or near their worksites, arranging for health plan coverage for vaccinations with reduced or no co-payments or deductibles, and/or sharing information about government sponsored or other vaccination clinics.

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu. Employers should encourage employees and their families to take the following steps:

Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too;
Stay home when you are sick to help prevent others from catching your illness;
Cover your mouth and nose;
Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick;
Clean your hands to protect yourself from germs;
Avoid touching your eyes, nose or mouth;
Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth; and
Practice other good health habits. Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Employers also should encourage workers and their families to be alert to possible signs of H1N1 or other flu symptoms and to respond appropriately to possible infection. According to the CDC, all types of flu including H1NA typically include many common symptoms, including:

Fever
Coughing and/or sore throat
Runny or stuffy nose
Headaches and/or body aches
Chills
Fatigue

Patients suffering from H1N1 flu usually report these same symptoms, but the symptoms often are more severe. In addition to the above symptoms, a number of H1N1 flu cases reported vomiting and diarrhea.

CDC recommends individuals diagnosed with H1N1 flu should:

Stay home and avoid contact with others for at least 24 hours after a fever (100°F or 37.8°C) is gone without the use of fever reducing medicine except to get medical care or for other things that must be done that no one else can do;
Avoid close contact with others, especially those who might easily get the flu, such as people age 65 years and older, people of any age with chronic medical conditions (such as asthma, diabetes, or heart disease), pregnant women, young children, and infants;
Clean hands with soap and water or an alcohol-based hand rub often, especially after using tissues or coughing/sneezing into your hands;
Cover coughs and sneezes;
Wear a facemask when sharing common spaces with other household members to help prevent spreading the virus to others. This is especially important if other household members are at high risk for complications from influenza;
Drink clear fluids such as water, broth, sports drinks, or electrolyte beverages made for infants to prevent becoming dehydrated;
Get plenty of rest;
Follow doctor’s orders; and
Watch for signs for a need for immediate medical attention. Suffers should get medical attention right away if the sufferer has difficulty breathing or chest pain, purple or blue discoloration of the lips, is vomiting and unable to keep liquids down, or shows signs of dehydration, such as feeling dizzy when standing or being unable to urinate.

In seeking to contain the spread of the virus within their workplace, employers also should be sensitive to workplace policies or practices that may pressure employees with a contagious disease to report to work despite an illness and consider whether the employer should adjust these policies temporarily or permanently in light of the ongoing pandemic. For instance, financial pressures and the design and enforcement of policies regarding working from home and/or qualifying for paid or unpaid time off significantly impact the decisions employees make about whether to come to work when first experiencing symptoms of illness. Employers of workers who travel extensively – may wish to delay or restrict travel for some period.

Employers Must Employment Discrimination & Other Legal Compliance Risks

Many employers may want to evaluate and appropriately revise existing policies with an eye to better defending their workforce against a major outbreak. Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations – either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers. Many businesses also will want to prepare backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs.

Employers planning for or dealing with an H1N1 or other epidemic in their workplace should exercise care to avoid violating the nondiscrimination and medical records confidentiality provisions of the Americans with Disabilities Act (ADA) and/or the Genetic Information Nondiscrimination Act (GINA), the Family & Medical Leave Act of 1990 (FMLA), the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws, and other employment and privacy laws.

Improperly designed or administered medical inquiries, testing, vaccination mandates and other policies or practices intended to prevent the spread of disease may expose an employer to disability discrimination liability under the ADA or GINA. For instance, the ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances permitted by the ADA. Likewise, improperly designed or communicated employer inquiries into family medical status which could be construed as inquiring about family medical history also may raise exposures under genetic information nondiscrimination and privacy mandates of GINA that took effect November 21, 2009.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

An employee’s ability to perform essential job functions will be impaired by a medical condition; or
An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Additionally, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made. It permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations. All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record. The EEOC Pandemic Preparedness In The Workplace and The Americans With Disabilities Act Guidance makes clear that employer inquiries and other H1N GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers H1N1 and other epidemic planning and response activities should be carefully crafted to avoid violating these proscriptions.

GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” also could present a liability trap door for some employers designing pandemic or other workplace wellness, disease management or other programs. GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual, GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology. For more information about the new GINA genetic information employment discrimination rules, see here.

As part of their pandemic planning, employers also generally should review their existing wage and hour and leave of absence practices. Employers should ensure that their existing or planned practices for providing paid or unpaid leave are designed to comply with the FLSA and other wage and hour and federal and state leave of absence laws. Employers also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years. If considering allowing or requiring employees to work from home, employers also need to implement appropriate safeguards to monitor and manage employee performance, to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, OSHA and other safety, privacy and other legal and operational requirements.

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at here. FLU.gov is a one-stop resource with the latest updates on the H1N1 flu. An additional resource is CDC INFO, 1-800-CDC-INFO (1-800-232-4636), which offers services in English and Spanish, 24 hours a day, 7 days a week. Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions. These and other businesses may want to consult the special resources posted here.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, health and other employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

November 24, 2009

Updated Employment Poster, Policies & Procedures Required Immediately

Employers, unions, employment agencies, employment training agencies and their agents face significant new employment discrimination liability risks if they violate new genetic information-based employment non-discrimination or fail to comply with genetic information confidentiality requirements that took effect under Title II of the Genetic Information Nondiscrimination Act (GINA) on Saturday, November 21, 2009. Employers need immediately to update their employment posters, carefully audit their existing records and practices to identify existing information and practices that may create special risks under GINA and take appropriate action to comply with the GINA rules. Employers needing an updated poster can find a copy on the Equal Employment Opportunity Commission website here.

Under the newly effective employment provisions of Title II of GINA, Federal law now prohibits employers of 15 or more employees and certain other entities from using individuals’ “genetic information” when making hiring, firing, job placement, or promotion decisions, requires “genetic information” be kept separately and confidential, and prohibits retaliation.

When assessing their risk under GINA, employers should be careful not to overlook or underestimate the genetic information collected or possessed by their organizations and the risks attendant to this information. Many employers will be surprised by the breadth of the depth of “genetic information.” GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual. GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology. Pending issuance of regulatory guidance, GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers.

Failing to properly address GINA compliance could expose employers to substantial risk. Violation of the employment provisions of Title II subjects an employer to potentially significant civil judgments like those that generally are available for race, sex, and other federal employment discrimination claims covered by the Civil Rights Act. Accordingly, employers and others who have not already done so should act quickly to review and update their policies and procedures to manage their new compliance and liability exposures under GINA Title II.

While the agency responsible for construing and enforcing Title II of GINA, the Equal Employment Opportunity Commission (EEOC), to date has published only limited guidance about it, the absence of this final guidance should not be read by employers as a sign their compliance may be delayed. While not yet issued in final form, proposed regulations interpreting Title II of GINA accessible here published by the EEOC in March, 2009 and a subsequently released factsheet accessible here published by the EEOC in May, 2009 titled “Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008” provide insights about how the EEOC may be expected to view its provisions. While many employers have delayed taking action to update their policies and procedures in hopes that final guidance would be forthcoming before Title II took effect, time has now run out. Accordingly, employers who have not already done so should act quickly to implement all necessary changes to position themselves to defend against a potential claim that their organization may have violated GINA Title II.

Employment-Related Genetic Information Nondiscrimination Rules In Focus

Applicable to employers, unions, employment agencies, employment training agencies and their agencies based on genetic information by employers, Title II imposes sweeping prohibitions against employment discrimination based on genetic information. Title II generally has three components:

Employment Discrimination Prohibited. Section 202 of GINA makes it illegal for an employer:

To fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee;
To limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee; or
To request, require, or purchase genetic information with respect to an employee or a family member of the employee except as specifically permitted by GINA and otherwise applicable law.

GINA §§ 203 and 204 extend similar prohibitions to employment agencies, labor unions and training programs.

Confidentiality Mandates. Under GINA § 206, an employer, employment agency, labor organization, or joint labor-management committee that possesses genetic information about an employee or member must protect the confidentiality of that information. Under its provisions, employers and other covered entities must:

Treat the genetic information as a confidential medical record of the employee or member and maintain it on separate forms and in separate medical files in the same manner as required for other medical records required to be maintained as confidential by Americans With Disabilities Act § 102(d)(3)(B); and
Only disclose it in the narrow circumstances specifically allowed by GINA.

Anti-Retaliation. GINA also prohibits retaliation or other discrimination against any individual because such individual has opposed any act or practice prohibited by GINA, for making a charge, testifying or assisting or participating in any manner in an investigation, proceeding, or hearing under GINA.

GINA’s Additional Group Health Plan Nondiscrimination & Privacy Rules Also Require Attention

In addition to taking appropriate steps to comply with the employment rules of Title II of GINA, employers and their group health plan fiduciaries and service providers also should ensure that the group health plan has been appropriately updated to comply with the group health plan nondiscrimination and privacy mandates of Title I of GINA.

Effective for all group health plan years beginning on or after May 21, 2009, GINA’s new restrictions on the collection and use of genetic information by group health plans added under Title I of GINA are accomplished through the expansion of a series of already existing group health plan nondiscrimination and privacy rules. GINA’s group health plan provisions amend and expand the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), Title VII of the Civil Rights Act, the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of information that falls within its broad definition of “genetic information” by group health plans. For individual health insurers, GINA’s restrictions take effect May 22, 2009. The broad definition of the term “genetic information” in GINA will require group health plan sponsors and insurers to carefully review and update their group health plan documents, communications, policies and practices to comply with forthcoming implementing regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure in a series of areas.

In this respect, wellness and disease management programs are likely to require special scrutiny and attention. GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of group health plan health assessment and other wellness and disease management programs which provide financial incentives or condition eligibility on the provision of family health histories or other information that could be construed as genetic information. The implications of these GINA prohibitions are further complicated by recent changes in the disability nondiscrimination rules and guidance under the Americans With Disabilities Act.

Title I of GINA generally prohibits group health plans from collecting genetic information for underwriting or eligibility purposes. It also expands already existing federal rules prohibiting group health plans from discriminating among individuals for purposes of determining eligibility or setting premiums based on health status previously enacted as part of HIPAA. These existing rules already prohibit group health plans and health insurance issuers from discriminating based on health related factors including genetic information for purposes of determining eligibility or premiums. GINA expands these existing nondiscrimination requirements to further regulate group health plan’s use and collection of genetic information. Under GINA’s nondiscrimination rules, group health plans and health insurers may not:

Request, require or purchase genetic information for underwriting purposes or in advance of an individual’s enrollment;
Adjust premiums or contribution amounts of the group based on genetic information;
Request or require an individual or family member to undergo a genetic test except in limited situations specifically allowed by GINA;
Impose a preexisting condition exclusion based solely on genetic information, in the absence of a diagnosis of a condition;
Discriminate against individuals in eligibility and continued eligibility for benefits based on genetic information; or
Discriminate against individuals in premium or contribution rates under the plan or coverage based on genetic information, although such a plan or issuer may adjust premium rates for an employer based on the manifestation of a disease or disorder of an individual enrolled in the plan.

GINA also prohibits insurers providing individual health insurance from establishing rules for eligibility, adjusting premiums or contribution amounts for an individual, imposing preexisting condition exclusions based on, requesting or requiring individuals or family members to undergo genetic testing.

Of particular concern to many plan sponsors and fiduciaries are the potential implications of these new rules on existing wellness and disease management features group health plans. Of particular concern is how regulators will treat the collection of family medical history and certain other information as part of health risk assessments used in connection with these programs. Although official guidance is still pending, many are concerned that regulators will construe certain commonly used practices of requiring covered persons to provide family medical histories or other genetic information through health risk assessments (HRAs) to qualify for certain financial incentives as a prohibited underwriting practice under GINA. Even where health risk assessments are not used, however, most group health plan sponsors should anticipate that GINA will require specific amendments to their plan documents, communications and processes.

Taking timely action to comply with these nondiscrimination and collection prohibitions is important. Under amendments to ERISA made by GINA, group health plan noncompliance can create significant liability for both the plan and its sponsor. Participants or beneficiaries will be able to sue noncompliant group health plans for damages and equitable relief. If the participant or beneficiary can show an alleged violation would result in irreparable harm to the individual’s health, the participant or beneficiary may not have to exhaust certain otherwise applicable Department of Labor administrative remedies before bringing suit. In addition to these private remedies, GINA also authorizes the imposition of penalties against employers and other sponsors of group health plans that violate applicable requirements of GINA of up to $500,000. The minimum penalties generally are set at the greater of $100 per day or a minimum penalty amount ranging from $2,500 for de minimus violations corrected before the health plan received notice of noncompliance to $15,000 in cases in which the violations are more than de minimus. GINA also includes language allowing the Secretary of Labor to reduce otherwise applicable penalties for violations that could not have been identified through the exercise of due diligence or when the plan corrects the violation quickly.

GINA Amendments To Health Plan Privacy Rules Under HIPAA

In addition to its nondiscrimination rules, GINA also amends HIPAA to make clear that “genetic information” as defined by HIPAA is protected health information protected by HIPAA’s Privacy & Security Standards of HIPAA. This means that it will require that all genetic information be treated as protected health information subject to the Privacy and Security Standards applicable to group health plans covered by HIPAA. Although the statutory provisions that accomplish these changes are deceptively simple, compliance with these requirements likely will require group health plans and their business associates to amend existing privacy policies, notices and practices to appropriately restrict disclosures for underwriting, operations and certain other uses to withstand scrutiny under the GINA privacy rule amendments.

When contemplating these changes, many plan sponsors and administrators also will want to consider and begin preparing to comply with other refinements to their existing privacy and security practices required in response to HIPAA privacy and security rule amendments enacted as part of the HITECH Act provisions of the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) provisions of the American Recovery and Reinvestment Act of 2009 (ARRA). As GINA specifies that violations of its privacy rule restrictions trigger the same sanctions as other privacy rule violations, group health plans and their business associates also should give due consideration to these penalty exposures. The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.

GINA’s fractured assignment of responsibility and authority to develop, implement and enforce regulatory guidance of its genetic information rules can create confusion for parties involved in compliance efforts. Because the group health plan requirements of Title I of GINA are refinements to the group health plan privacy and nondiscrimination rules previously enacted as part of HIPAA, GINA specifically assigned authority to construe and enforce its group health plan requirements to the agencies responsible for the interpretation and enforcement of those original rules: (1) the Department of Labor Employee Benefit Security Administration (EBSA); (2) the Internal Revenue Services (IRS), and (3) the Department of Health & Human Services.

These three agencies in early October published the interim final regulations construing the group health plan manatees of Title II of GINA, which are available for review here. Group health plans, their employer and other sponsors, fiduciaries and service providers should act quickly to review and update their group health plan documents, procedures and other materials to comply with these new mandates.

Other Information & Resources

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Posted by Cynthia Marcotte Stamer

Senate Finance Chairman Baucus Introduces New Health Care Reform Bill

November 19, 2009

S.1796, America’s Healthy Future Act of 2009 Reflects Chairman’s Response To House’s Passage of HR 3962 & Other Feedback

Senate Finance Committee Chairman Max Baucus (D-MT) today (November 19, 2009) introduced his latest health care reform proposal, the America’s Healthy Future Act of 2009 (S.1796). Chairman Baucus’ introduction of S. 1796 follows the November 7, 2009 passage by the U.S. House of Representatives of the massive health care reform proposal sponsored by Representative John Dingell (D-MI) and supported by Speaker Nancy Pelosi, the Affordable Health Care for America Act (HR. 3962).

Totaling 1504 pages in length, S.1796 proposes a lengthy and complex array of reforms to the U.S. health care coverage and delivery system, which would affect virtually each U.S. employer, health care provider, payer, and resident. As with the provisions of HR. 3962 and other versions of health care reform, the reforms outlined in the provisions of S.1796 include complexities and nuances which may not be apparent in partisan or non-partisan discussions or summaries of its goals or purposes. Consequently, individuals or businesses concerned about the proposed reforms are encouraged to begin and base their review and analysis on the actual text of S.1796, a copy of which as introduced is available for review here.

The continuing emphasis of President Obama and other members of the Democratic Party Leadership in Congress on the passage of health care reform means that Senator Baucus and other Democratic Leaders in Congress are likely to continue to make passage of health care reform a priority. U.S. businesses and individuals concerned about the proposed reforms should carefully review both the Senate and House bills and act quickly to provide their input on any matters of special interest and concern.

Selected Health Coverage Reform Highlights

Among other things, S.1796, as introduced, would enact sweeping health insurance coverage reforms that would create new obligations for employers, insurers, and individual workers. In this respect, S.1796, among other things would:

Amend the Social Security Act (SSA) to add a new title XXII (Health Insurance Coverage) to ensure that all Americans have access to affordable and essential health benefits coverage.
Require all health benefits plans offered to individuals and employers in the individual and small group market to be qualified health benefits plans (QHBPs).
Amend the Internal Revenue Code to: (1) allow tax credits related to the purchase of health insurance through the state exchanges; and (2) impose an excise tax on individuals without essential health benefits coverage and on employers who fail to meet health insurance coverage requirements with respect to their full-time employees.
Prohibit QHBP from excluding coverage for preexisting conditions, or otherwise limiting or conditioning coverage based on any health status-related factors.
Require QHBPs to offer coverage in the individual and small group markets on a guaranteed issue and guaranteed renewal basis.
Amend the cafeteria plan rules of Internal Revenue Code § 125 to, among other things, require that in order for a health flexible spending arrangement (HFSA) to qualify as a qualified benefit eligible to be offered under a cafeteria plan, the cafeteria plan must limit the maximum salary reduction contribution per employee per taxable year to $2,500 beginning in 2011.
Increase the threshold for the itemized income tax deduction for medical expenses.
Require states to: (1) establish rating areas; (2) adopt a specified risk adjustment model; and (3) establish transitional reinsurance programs for individual markets.
Require QHBP offerors in the individual and small group markets to consider all enrollees in a plan to be members of a single risk pool.
Require the Secretary of Health and Human Services (HHS) to establish: (1) risk corridors for certain plan years; (2) high risk pools for individuals with preexisting conditions; (3) a temporary reinsurance program for retirees covered by employer-based plans; and (4) a program under which a state establishes one or more QHBPs to provide at least an essential benefits package to eligible individuals in lieu of offering coverage through an exchange.
Entitle a qualified individual to the choice to enroll or not to enroll in a QHBP offered through an exchange covering the individual’s state as well as QHBPs in the individual market while at the same time requiring that such individuals to be U.S. citizens or lawful residents.
Require each state to establish: (1) an exchange designed to facilitate enrollment in QHBPs in the individual market; and (2) a Small Business Health Options Program (SHOP) exchange designed to assist qualified small employers in facilitating the enrollment of their employees in QHBPs in either the individual or the small group market.
Direct the Secretary to: (1) establish a system allowing state residents to participate in state health subsidy programs; and (2) study methods exchange QHBPs can employ to encourage health care providers to make increased meaningful use of electronic health records.
Dictate the mandated contents of an essential health benefit benefits package, including little or no cost-sharing, no annual or lifetime limits on coverage, and preventive services.
Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
Amend the Internal Revenue Code to codify and revise the Health Insurance Portability and Accountability Act of 1996 (HIPAA) wellness program regulations.
With regard to abortions: (1) declare that the Act does not require health care benefits plans to provide coverage for abortions; prohibit QHBPs from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions; (3) continues application of state and federal laws regarding abortion; (4) prohibit the use of premium credits and cost-sharing subsidies for QHBPs covering abortion services for which federal funding is prohibited; (5) require the plan offeror to determine whether or not the plan provides coverage of abortion services for which federal funding is prohibited or is allowed; and (6) require the Secretary to assure that at least one QHBP covers abortion services for which federal funding is prohibited or allowed; and at least one QHBP that does not cover abortion services for which federal funding is allowed.

Other Selected Health Care System, Reimbursement & Other Reform Highlights

S.1796 also would expand and modify existing Medicare, Medicaid, CHIP and other federal health care programs and enact a host of other new rules and requirements affecting health care providers, drug companies and other participants in the U.S. health care system. Other proposed reforms include provisions that would:

Require the President to: (1) certify annually in the President’s Budget whether or not the provisions in this Act will increase the budget deficit in the coming fiscal year; and (2) instruct the HHS Secretary and the Secretary of the Treasury to make required reductions in exchange credits and subsidies.
Establish a new mandatory eligibility category under SSA title XIX (Medicaid) for all non-elderly, nonpregnant individuals who are otherwise ineligible for Medicaid.
Revise Medicaid benefits.
Rescind funds available in the Medicaid Improvement Fund for FY2014-2018.
Make appropriations for Aging and Disability Resource Center initiatives.
Increase the federal medical assistance percentage (FMAP) for states to offer home and community-based services as a long-term care (LTC) alternative to nursing homes.
Create a Community First Choice Option.
Add a new optional categorically needy eligibility group to Medicaid for individuals: (1) with income that exceeds 133% of the poverty line; and (2) certain other individuals, but only for benefits limited to family planning services and supplies.
Direct the Secretary to establish a grants program to support school-based health centers.
Remove smoking cessation drugs, barbiturates, and benzodiazepines from Medicaid’s excluded drug list.
Revise requirements for Medicaid disproportionate share hospital (DSH) payments.
Direct the Secretary to establish a Federal Coordinated Health Care Office within the Centers for Medicare & Medicaid Services (CMMS).
Direct the Secretary to establish a Medicaid Quality Measurement Program.
Revise requirements for the Medicaid and CHIP Payment and Access Commission (MACPAC) under SSA title XXI, Children’s Health Insurance Program.
Set forth special rules relating to American Indians and Alaska Indians.
Require the Secretary to establish procedures for sharing data collected under a federal health care program on race, ethnicity, sex, primary language, type of disability, and related measures and data analyses.
Amend SSA title V with respect to the Maternal and Child Health (MCH) block grant program.
Provide funding for abstinence education.
Incorporate reforms originally proposed under the Elder Justice Act of 2009 pursuant to which amendments would be made to the provisions of SSA title XX relating to Block Grants to States for Social Services with respect to elder abuse, neglect, and exploitation and their prevention.
Establish within the Office of the Secretary an Elder Justice Coordinating Council.
Direct the Secretary to establish a hospital value-based purchasing program under Medicare.
Extend the Medicare Physician Quality Reporting Initiative program (PQRI) incentive payments beyond 2010.
Modify the Physician Feedback Program.
Require the Secretary to develop a plan to implement a Medicare value-based purchasing program for home health agencies and skilled nursing facilities (SNFs).
Amend SSA title XVIII (Medicare) to direct the Secretary to establish a national strategy to improve the delivery of health care services, patient health outcomes, and population health.
Direct the President to convene an Interagency Working Group on Health Care Quality.
Amend the General Provisions of SSA title XI to provide for the establishment of a Center for Medicare and Medicaid Innovation within CMMS.
Amend SSA title XVIII to direct the Secretary to establish a shared savings program that promotes accountability for a patient population and coordinates items and services under Medicare parts A (Hospital Insurance) and B (Supplementary Medical Insurance).
Create a Hospital Readmissions Reduction Program.
Direct the Secretary to establish a Community-Based Care Transitions Program.
Revise requirements with respect to residents in teaching hospitals.
Increase the Medicare physician payment update.
Direct the Secretary to establish a Working Group on Access to Emergency Medical Care.
Extend the Medicare-Dependent Hospital Program.
Amend the Tax Relief and Health Care Act of 2006 with respect to the hospital wage index.
Establish a Medicare prescription drug discount program for brand-name drugs for beneficiaries who enroll in Medicare part D (Voluntary Prescription Drug Benefit Program) and have drug spending that falls into the coverage gap.
Establish an independent Medicare Commission to reduce the per capita rate of growth in Medicare spending.
Amend SSA title XI to add a new part D, Comparative Effectiveness Research, under which would be established a Patient-Centered Outcomes Research Institute.
Establish in the Department of Treasury the Patient-Centered Outcomes Research Trust Fund.
Establish a nationwide program for national and state background checks on direct patient access employees of long term care facilities and providers.
Direct the Secretary to establish new procedures for screening providers of medical or other items or services and suppliers under the Medicare, Medicaid, and CHIP programs.
Direct the Secretary to establish a self-referral disclosure protocol to enable health care service providers and suppliers to disclose violations.
Requires the Secretary to expand the number of areas included in Round Two of the durable medical equipment (DME) competitive bidding program.
Extend the period for collection of overpayments due to fraud.
Amend the Internal Revenue Code with respect to: (1) an excise tax on the excess benefit of high cost employer-sponsored health coverage; (2) distributions from health savings accounts for drugs and insulin that are prescribed drugs and insulin only; (3) a limitation on salary reduction contributions by employers to a health flexible spending arrangement; (4) expanded information reporting requirements; (5) additional qualifying requirements for charitable hospital organizations; and (6) a qualifying therapeutic discovery project tax credit.
Impose annual fees on: (1) manufacturers and importers of branded prescription pharmaceuticals or of medical devices; and (2) health insurance providers.
Prescribe a special rule to limit excessive remuneration by certain health insurance providers.
Exclude from an individual’s gross income the value of any qualified Indian health care benefit.

Monitoring & Responding To Health Care Reform Proposals

As was the case with HR. 3962, members of the Senate are likely to debate and weigh a variety of amendments and refinements to the provisions of S.1796 as it deliberates its enactment. If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

Register for this resource at the link above;
Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input and join in other dialogue with others concerned about health care reform;
Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

If you have questions about or need assistance evaluating, commenting on or responding to health care or other legislative or regulatory reforms, or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment/Employee Benefits Practice Chair Cynthia Marcotte Stamer.

Ms. Stamer has more than 22 years of experience advising and assisting business, government and other clients to evaluate and respond to health care, pension reform, workforce and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws. A member of the leadership council of the American Bar Association Joint Committee on Employee Benefits, Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally. Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally. In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally. As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

In addition to her extensive work on health and other employee benefit matters, Ms. Stamer also is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and has continuously has advised and represented employers and others on labor and employment, compensation, employee benefit and other personnel and staffing matters throughout her career. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues. Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association. Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

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Speak Up America: Where & How To Read & Share Your Feedback About The Health Care Reform Legislation

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Posted by Cynthia Marcotte Stamer

Proposed Chemical Facility Anti-Terrorism Bill Would Obligate Chemical Facilities To New Background Check, HR & Other Safety & Security Safeguards

November 16, 2009

“The Chemical Facility Anti-Terrorism Act of 2009” (“Act”) recently passed by the House of Representatives and awaiting Senate consideration, if enacted, will require U.S. businesses that own or operate “chemical facilities” to conduct security background checks on employees and certain other individuals and implement a detailed and expensive list of other new security processes.

By tightening the regulation of security practices at chemical facilities, Title XXI of the Act seeks to strengthen the security of chemical facilities against terroristic acts or other threats. Businesses manufacturing or handling chemicals or other substances that could cause them to be considered “chemical facilities” should carefully watch this legislation and, if appropriate, communicate any relevant input or concerns to members of the Senate promptly.

The Act would require any facility (“chemical facility”) at which the owner or operator of the facility possesses or plans to possess at any relevant point in time a substance of concern or that that meets other risk-related criteria identified by the Secretary of Homeland Security (the “Secretary”) to implement processes and procedures that would comply with a broad range of risk-based standards established by the Secretary to ensure or enhance the security of a chemical facility against a chemical facility terrorist incident referred to in the Act as “chemical facility security performance standards” (the “Standards”).

By their express terms and inherently as part of other requirements, the Standards would require that chemical facilities implement a host of new processes and procedures impacting on the selection, credentialing and management of employees and other service providers. Among other things, for example, the Act would require chemical facilities to:

Administer a regularly updated identification system that checks the identification of chemical facility personnel and other persons seeking access to the chemical facility and that discourages abuse through established disciplinary measures;
Restrict access to facilities and secure site assets, systems, and technology;
Screen and control access to the facility and to restricted areas within the facility by screening or inspecting individuals and vehicles as they enter, measures to deter the unauthorized introduction of dangerous substances and devices that may facilitate a chemical facility terrorist incident or actions having serious negative consequences for the population surrounding the chemical facility;
Perform personnel surety for individuals with access to restricted areas or critical assets by conducting appropriate background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including measures designed to verify and validate identity, to check criminal history, to verify and validate legal authorization to work and to identify people with terrorist ties;
Develop and require that employees and other member of the workforce comply with new processes, plans and procedures for preventing and responding to chemical facility terrorist incidents and other required procedures for deterring and responding to chemical facility terrorist incidents and threats of those incidents; and
Appoint new security officials responsible for overseeing and administering compliance under the Act.

Beyond these and other specific staffing requirements, the Act also would require chemical facilities implement, retrain and require that members of its workforce comply with a broad range of new procedures required under the Standards, including procedures to:

Deter chemical facility terrorist incidents through visible, professional, well-maintained security measures and systems, including security personnel, detection systems, barriers and barricades, and hardened or reduced value targets;
Deter theft or diversion of a substances of concern, insider sabotage, cyber sabotage, unauthorized onsite or remote access to critical process controls; and other critical product elements, data or systems; and
Comply with a host of other mandates.

As part of some of these required procedures, chemical facilities could expect to be required to adopt and train employees on their specific roles or responsibilities for deterring or responding to a chemical facility terrorist incident

Furthermore, the oversight and enforcement powers granted to the Secretary under the also would create a host of new employer retaliation and whistleblower exposures. The Act would prohibit employer retaliation, implement new whistleblower safeguards and remedies and grant the Secretary the right to offer non-supervisory employees the opportunity to confidentially communicate information relevant to the employer’s compliance or non-compliance of the chemical facility with the Act or its implementing regulations; It also would grant “an employee representative of each certified or recognized bargaining agent at the covered chemical facility, if any, or, if none, a non-supervisory employee … the opportunity to accompany the Secretary during a physical inspection of such covered chemical facility for the purpose of aiding in such inspection, if representatives of the owner or operator of the covered chemical facility will also be accompanying the Secretary on such inspection.”

These and other provisions could impose significant new burdens, costs and liabilities on businesses considered to be operating chemical facilities. Since the precise list of businesses likely to fall within that definition would be decided by the Secretary, businesses in manufacturing, energy, pharmaceutical, or other industries that could fall within the scope of this definition should evaluate the potential implications and if appropriate, communicate any relevant input to Congress.

If you have questions about or need assistance with evaluation and responding to the provisions of the Act or any other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

IRS Rules For Employer Reporting Of Wages Paid to Nonresident Alien Employees Performing Services In U.S. Change

November 13, 2009

Employers of nonresident aliens performing services in the U.S. should review and update their existing practices for reporting and withholding income taxes on wages paid to these employees in response to impending changes in Internal Revenue Service (IRS) rules.

Effective for wages paid on or after January 1, 2010, IRS Notice 2009-91 IRS Notice 2009-91 implements new rules for determining the amount of income tax to be withheld from the wages of nonresident alien employees performing services within the United States. These new rules will be set forth in the new revision of Publication 15 (Circular E), Employer’s Tax Guide, and other IRS publications. Notice 2009-91 will appear in IRB 2009-48, dated Nov. 30, 2009. An advance copy of the Notice 2009-91 is available for review here.

Notice 2009 modifies the rules for employers to use in calculating income tax withholding on nonresident alien employees to reflect two tax benefits for which nonresident alien employees are not eligible: (1) the standard deduction; and (2) the Making Work Pay Tax Credit.

Beginning with wages paid on or after January 1, 2010, employers are required to calculate income tax withholding under section 3402 of the Code on wages of nonresident alien employees by making two modifications:

Employers need to add an amount to wages before determining withholding under the wage bracket or percentage method in order to offset the standard deduction built into the withholding tables; and
Employers need to determine an additional amount of withholding from a separate table applicable only to nonresident alien employees to offset the effect of the Making Work Pay Tax Credit built into the withholding tables.

The specific steps to be followed for each of these two modifications will be set forth in Publication 15 and other IRS forms or publications.

Under the Obama Administration, the IRS is placing renewed regulatory and enforcement emphasis on employer classification of worker and proper wage reporting and income and employment tax withholding and payment. In light of these liabilities, employers should ensure that their current practices are properly updated and administered.

If you have questions about or need assistance with these or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

House Passes Affordable Health Care For America, Health Care Reform Debate Focus Now Moves To The Senate

November 9, 2009

The U.S. House of Representatives passed the massive health care reform bill introduced by Representative John Dingle and backed by House Speaker Nancy Pelosi, H.R. 3962, the Affordable Health Care for America Act (HR 3962) by a recorded vote of 220 – 215 late Saturday, November 7, 2009 after a day of debate which lead to the adoption of an amendment prohibiting the use of federal funds for abortion services in the public option. The health care reform debate now moves to the Senate.

As of this morning (November 9, 2009), the U.S. Government Printing Office had not released an official copy of the text of H.R. 3962 revised to reflect the amendments adopted by the House on Saturday prior to its passage of H.R. 3962. However, a record of the amendments approved by House members before passage of H.R. 3962 along with text of the bill prior as originally introduced on October 29, 2009 are available for review online here.

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here

If you have questions about or need assistance monitoring, evaluating, commenting on or responding to this or any other health care reform proposal or other federal or state health care, workforce or other legislative, regulatory or other developments or concerns, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state health care, employee benefit, workforce and other legislation and regulation. Ms. Stamer has advised and represented clients about these and other health care labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. Her public policy experience includes ongoing involvement in these concerns within the U.S. for 30 years, as well as serving as a policy advisor on Social Security Reform to the Government of Bolivia and providing input or other representation to various other clients on workforce, health care and other policies in various other regions of the world.

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

SHRM Tells Members Say “NO!” To Pelosi-Backed Health Care Reform

November 6, 2009

In a rare weekend meeting, the House of Representatives is scheduled to consider H.R. 3962, the Affordable Health Care for America Act and, if Speaker Nancy Pelosi has her way, vote to pass it as early as this weekend.

In anticipation of this action, the Society For Human Resources (SHRM) is voicing strong opposition to H.R. 3962 and urging U.S. citizens and businesses to express their strong opposition to it as well to members of Congress immediately.

According to communications circulated this week, SHRM “strongly supports comprehensive health care reform that strengthens the employer-based system, promotes wellness programs and health promotion initiatives, strengthens the Employee Retirement Income Security Act (ERISA), increases purchaser and consumer access to cost and quality information and increases access to affordable health coverage. SHRM says the House bill fails to achieve these goals. Accordingly, SHRM is urging American’s to contact their Representative today to urge a NO VOTE on H.R. 3962.

SHRM’s concerns about the proposal include that H.R. 3962:

Does not include provisions to facilitate greater availability of wellness programs among employers and employees.
Does not include meaningful cost, quality, or transparency provisions to ensure that both employers and employees have better access to health-related information.
Requires employers to provide and pay for “qualified” health care coverage or face an 8 percent payroll tax. Employers must pay 72.5 percent of the premium for individuals and 65 percent of the premium for families. In addition, even if an employer provides and pays for health insurance coverage for their workforce, that employer could still be subject to an 8 percent payroll tax if employees decline employer coverage because it is unaffordable – defined as more than 12 percent of the employee’s income.
Would erode the Employee Retirement Income Security Act (ERISA) by applying state law remedies to employer purchased coverage in a health insurance exchange; prohibiting post-retirement reductions of retiree health benefits by group health plans, unless reductions are also made to active employees’ health benefits; and requiring employer-sponsored plans to meet detailed federal requirements that will increase costs.
Includes a public insurance plan option that raises serious concerns about cost-shifting to private plans. SHRM objects because inadequate reimbursement practices under Medicare and Medicaid has resulted in significant cost-shifting to private plans, increasing costs for both employers and employees.

In light of these concerns, SHRM is asking all members and other concerned Americans to write mMembers of Congress TODAY and urge them to oppose the Affordable Health Care for America Act. It invites members to use SHRM’s HRVoice to share thes econcernings by:

Log ging onto HR Voice
Under the heading “Take Immediate Action on these Hot Issues,” click on: “VOTE NO on the Affordable Health Care for America Act (H.R. 3962)” and
Personalizing and sending individualized letters by including specific information about the organization you work for, your experiences in the workplace, and why this legislation would negatively impact your organization.

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Posted by Cynthia Marcotte Stamer

SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act

November 6, 2009

SHRM’s concerns about the proposal include that H.R. 3962:

Does not include provisions to facilitate greater availability of wellness programs among employers and employees.
Does not include meaningful cost, quality, or transparency provisions to ensure that both employers and employees have better access to health-related information.
Requires employers to provide and pay for “qualified” health care coverage or face an 8 percent payroll tax. Employers must pay 72.5 percent of the premium for individuals and 65 percent of the premium for families. In addition, even if an employer provides and pays for health insurance coverage for their workforce, that employer could still be subject to an 8 percent payroll tax if employees decline employer coverage because it is unaffordable – defined as more than 12 percent of the employee’s income.
Would erode the Employee Retirement Income Security Act (ERISA) by applying state law remedies to employer purchased coverage in a health insurance exchange; prohibiting post-retirement reductions of retiree health benefits by group health plans, unless reductions are also made to active employees’ health benefits; and requiring employer-sponsored plans to meet detailed federal requirements that will increase costs.
Includes a public insurance plan option that raises serious concerns about cost-shifting to private plans. SHRM objects because inadequate reimbursement practices under Medicare and Medicaid has resulted in significant cost-shifting to private plans, increasing costs for both employers and employees.

Log ging onto HR Voice
Under the heading “Take Immediate Action on these Hot Issues,” click on: “VOTE NO on the Affordable Health Care for America Act (H.R. 3962)” and
Personalizing and sending individualized letters by including specific information about the organization you work for, your experiences in the workplace, and why this legislation would negatively impact your organization.

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Posted by Cynthia Marcotte Stamer

US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements

November 5, 2009

Rising business failures, constricting budgets, employment losses and other business and workforce dislocations associated with the recent economic downturn are adding new urgency to efforts by U.S. and international leaders to act to mitigate threats to the security of worker pensions.

In response to these concerns, the U.S. Pension Benefit Guaranty Corp. (PBGC), the United Kingdom’s The Pensions Regulator and Pension Protection Fund recently have reached an information sharing agreement intended to help the agencies in both countries protect retirement benefits earned by workers and retirees on both sides of the Atlantic. Meanwhile, businesses that sponsoring defined benefit pension plans now are required to comply with newly released final Internal Revenue Service regulations that increase minimum contributions required by many sponsors, and impose other new mandates designed to accelerate plan funding and otherwise promote greater security of these benefit programs in an economically challenged business environment.

Under a Memorandum of Understanding, signed on November 4, 2009, the three agencies will share any unrestricted information that advances the security of defined benefit plans sponsored by private sector companies. Confidential financial information from those companies will not be shared. While the agreement facilitates broad access to data, intelligence, and other records, it is not legally binding. Additionally, the agencies are not compelled to lend assistance to each other, especially if legal proceedings are underway, and such assistance would be contrary to the interests of either country. The agreement can be canceled at any time by any party.

The Pensions Regulator oversees private sector defined benefit plans in the UK and is charged with protecting the retirement benefits of plan members. The Regulator is also charged with reducing the risk of claims for compensation from the Pension Protection Fund (PPF). The PPF was created to pay compensation to members of eligible defined benefit pension plans when the plan’s sponsor was unable to pay benefits.

The PBGC is a federal corporation created under the Employee Retirement Income Security Act of 1974. It currently guarantees payment of basic pension benefits earned by 44 million American workers and retirees participating in over 29,000 private-sector defined benefit pension plans. The agency receives no funds from general tax revenues. Operations are financed largely by insurance premiums paid by companies that sponsor pension plans and by investment returns.

The Memorandum of Understanding is one of a variety of actions that the U.S. regulators are taking as part of their efforts to shore up the security of private retirement benefits and funding. On October 15, 2009, the Internal Revenue Service published final regulations regarding the “Measurement of Assets and Liabilities for Pension Funding Purposes; Benefit Restrictions for Underfunded Pension Plans” construing the amended single employer defined benefit plan minimum funding rules in Internal Revenue Code (“Code”) §§ 430(d), 430(f), 430(g), 430(h)(2), 430(i), and 436, added to the Code by the Pension Protection Act of 2006 (PPA ’06), Public Law 109-280 (120 Stat. 780) taking into account subsequent amendments made by the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA ’08), Public Law 110-458 (122 Stat. 5092). These new final regulations implement new federal rules that accelerate the time within which employers are required to fund defined benefit retirement benefit commitments made in single employer defined benefit pension plans and impose other complicated new requirements intended to improve the funding and security of these programs. As implementation of these new rules proceeds, the PBGC is working to respond to the growing wave defined benefit pension plans whose plan sponsors have already gone bankrupt or otherwise have proven unable to meet already existing funding obligations.

If you have questions about or need assistance evaluating or complying these minimum funding rules or other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer has more than 20 years experience advising and representing employers, plan sponsors and fiduciaries, and others about these and other related workforce, benefits, compensation and compliance matters. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates

November 5, 2009

Following up on its October expansion of federal requirements that employers and their group health plans provide family leave rights in relation to certain military related absences, Congress now is considering extending and expanding the “COBRA Premium Subsidy” rules for group health plans enacted by Congress on February 17, 2009 as part of the American Recovery and Reinvestment Act of 2009 (ARRA) beyond their currently scheduled December 31, 2009 expiration date and further to restrict the amount that group health plans can charge former employees and their dependents covered by the COBRA Premium Subsidy rules to maintain coverage under the coverage continuation mandates of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).

COBRA generally allows employee and dependents who otherwise would lose eligibility for group health benefits under union or employer sponsored plans temporarily to continue enrollment in the group health plan by paying up to 102 percent of the full cost of that coverage (the “COBRA premium”) and fulfilling certain other conditions set forth in COBRA. Under ARRA’s COBRA Premium Subsidy Rules, Congress among other things amended COBRA through December 31, 2009 to require that employers “subsidize” 65% of the otherwise applicable COBRA premium for employees or dependents electing COBRA coverage following a loss of eligibility due to the involuntary employment termination between September 15, 2008 and December 31, 2009 who otherwise qualify as “assistance eligible individuals” under ARRA. The COBRA Premium Subsidy rules created a mechanism through which employers providing the required COBRA Premium Subsidy can claim a payroll tax credit for COBRA Premium Subsidy amounts paid with respect to assistance eligible individuals in accordance with ARRA’s mandates.

Senator Sherrod Brown (D-Ohio) and Robert P. Casey (D-PA) now are proposing that Congress extend and expand ARRA COBRA Premium Subsidy requirements applicable to group health plans as proposed by the “COBRA Subsidy Extension and Enhancement Act” (S. 2730). Introduced on November 5, 2009, the Government Printing Office had not published the text of S. 2730 as of the release of this publication. However, It is expected that the official text of S. 2730 will be made available for review soon here. In the meanwhile, the reading of S. 2730 into the record when introduced in the Senate on November 4, 2009 and its sponsors’ news releases, the “COBRA Subsidy Extension and Enhancement Act” (S. 2730) proposes that Congress:

Extend the COBRA Premium Subsidy requirements an extra six months to 15 months;
Increase the required subsidy amount during the extended COBRA Premium Subsidy period from 65 percent to 75 percent of the COBRA premium; and
Clarify that the employees and dependents eligible to qualify as assistance eligible individuals under ARRA includes those losing group health plan eligibility due to an employment loss, whether from an actual employment termination or a decline in hours of employment.

Expanded FMLA Military Leave Related Mandates Added Under Defense Appropriations Laws Already Require Immediate Action

The proposal in S. 2730 to extend the ARRA COBRA Premium Subsidy mandates is the latest in a series of recently enacted and proposed federal laws and implementing regulations imposing an ever-expanding list of federal eligibility mandates on employment based group health plans. These include not only an expanding list of federal mandates that group health plans make available continued coverage to individuals whose eligibility for coverage otherwise would end on account of an employment decline or loss such as those enacted as part of the National Defense Authorization Act for Fiscal Year 2010, Public Law 111-84 (“2010 NDAA”), signed into law by President Obama on October 28, 2009 and the National Defense Authorization Act for Fiscal Year 2008 the (“2008 NDAA”) signed into law by President Bush in January, 2008. These FMLA military leave-related mandates are in addition to separate group health coverage continuation mandates separately imposed upon employers and group health plans under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

For instance, the 2008 NDAA amended the Family and Medical Leave Act (“FMLA”) to add new family military-leave provisions, which were further expanded by the 2010 NDAA. The 2008 NDAA adds two new qualifying circumstances under which eligible employees must be allowed to take FMLA leave and to continue group health plan coverage during that FMLA:

“Qualifying exigency leave” and
“Military caregiver leave,” also referred to as “leave to care for a covered servicemember.”

Final regulations implementing the 2008 NDAA FMLA mandates and other FMLA requirements took effect on January 16, 2009. The NDAA for 2010 further amended these family military-leave mandates to expand the circumstances under which the FMLA leave mandates employers and their group health plans extend FMLA leave rights in relation to military members.

Beyond these military-leave related group health plan mandates, group health plans also are required to comply with a host of other recently-expanded federal eligibility and other mandates such as new mandates to offer up to 12-months coverage continuation for dependents whose coverage otherwise would terminate due to a medically required break in school enrollment, expanded group health plan special enrollment and nondiscrimination rules imposed under ARRA, the Genetic Information and Nondiscrimination Act (“GINA”) and the Health Insurance Portability & Accountability Act (“HIPAA”) and various others. Congress is considering further amendments to these and other federal mandates under proposals included in the various health care bills being heavily debated in Congress, as well as others included in legislation proposed separately from these broader health care reform proposals.

Take Prompt Action to Manage Risks

In addition to monitoring and sharing their input with Congress about S. 2730 and other proposed legislation impacting their group health plans, group health plans, their sponsoring employers or unions, insurers, fiduciaries and administrative service providers also should take prompt action to ensure that their group health plan documents, notices and other communications, processes and procedures have been properly updated in response to the statutory regulatory changes to federal group health plan eligibility and other mandates.

If you have questions about or need assistance reviewing or sharing your input with Congress about S. 2730 or other proposed legislation, evaluating and updating, administering or defending your group health plan in light of these or other federal regulations, or with other employee benefit, employment, compensation, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and past chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer has more than 20 years experience advising and representing employee benefit plans, employers, plan sponsors and fiduciaries, administrative services providers, insurers and others about these and other related matters. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

November 15, 2009 Is Deadline To Send Required Group Health Plan Medicare Part D “Creditable Coverage” Notice

November 3, 2009

November 15, 2009 is the deadline for group health plans providing prescription drug coverage to send the annually-required notification (the “Part D Notice”) to Medicare-eligible participants whether the plan’s prescription drug coverage is or is not “creditable coverage” (“Creditable Coverage”) for purposes of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the “MMA”) “Part D” prescription drug coverage program. Before distributing the required Part D Notice, group health plan sponsors and administrators should review and update the Part D Notice as needed in light of 2009 revisions to the Part D Notice requirements issued earlier this year by CMS.

The MMA generally mandates that covered employer-sponsored group health plans send a Part D Notice that complies with the form and content requirements established by the Centers for Medicare & Medicaid Services (“CMS”) to all Medicare Part D-eligible individuals covered under, or who apply for, enrollment in a group health plan providing prescription drug coverage at each of the following times:

Before the Medicare Part D annual coordinated election period (November 15 – December 31) each year;
Within the 12 months before an individual’s initial enrollment period for Medicare;
Before the effective date of coverage for a Medicare-eligible individual beginning participation in the group health plan;
When the plan’s prescription drug coverage ends or is no longer creditable; and
Upon a beneficiary’s request.

Because CMS posted revised model notices and updated guidance regarding creditable coverage disclosures earlier this year, plan sponsors and administrators before distributing their Part D Notice generally will need to:

Determine whether their group health plan does or does not provide creditable coverage for purposes of Medicare Part D regulations;
Determine which Medicare Part D notification should be provided in light of the existing group health plan design; and
Review and update, if necessary, the content and form of the Part D Notice to comply with the updated guidance issued earlier this year.

The Annual Part D Notice requirement generally applies to all group health plans not otherwise specifically excluded from coverage even those that do not provide retiree coverage. The MMA generally requires notification to Medicare Part D-eligible employees and dependents, regardless of whether the member is enrolled under active or retired coverage or whether the group health plan coverage is primary or secondary to Medicare.

A group health plan must determine if its prescription drug coverage is “creditable coverage” in accordance with rules contained in the Medicare Part D regulations. These regulations generally specify that prescription drug coverage qualifies as creditable coverage if the actuarial value of the coverage equals or exceeds the actuarial value of the Part D prescription drug coverage, as demonstrated through the use of generally accepted actuarial principles in accordance with CMS actuarial guidelines. This actuarial determination measures whether the expected amount of paid claims under the group health plan’s prescription drug coverage is at least as much as the expected amount of paid claims under the standard Medicare prescription drug benefit. In lieu of an actuarial assessment, the Medicare Part D regulations alternatively allow group health plans to rely upon a safe harbor rule. Under this safe harbor, group health plans offering prescription drug coverage qualify as providing Creditable Coverage without an actuarial assessment if the standards of the safe harbor rule are met.

This determination of creditable coverage for Medicare Part D purposes is separate and distinct from the requirement that group health plans determine and provide notification of “creditable coverage” when group health plan coverage ends pursuant to the group health plan portability requirements imposed by the Health Insurance Portability & Accountability Act of 1996, as amended (“HIPAA”).

When distributing the Part D Notice, group health plan sponsors and administrators also generally will want to make arrangements to ensure that separately required notifications to CMS regarding the creditable coverage status of the group health plan under Medicare Part D will be timely made as well as calendar reminders to prepare and provide the Part D Notice expected to be required in November, 2010. The Medicare Part D regulations also generally require group health plans also to provide a “Disclosure Notice” to CMS informing it whether the applicable group health plan provides Medicare Part D Creditable Coverage on an annual basis during the first 60 days of the plan year, and upon any change that affects whether the group health plan provides prescription drug coverage that is or is not creditable coverage for Medicare Part D purposes..

In addition to the Medicare Part D notice requirements, group health plans also are required to provide various other annual and other notifications by ERISA, the Health Insurance Portability & Accountability Act of 1996, as amended (“HIPAA”), Newborns’ and Mothers’ Health Protection Act, medical coverage e continuation requirements under the Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), the Family & Medical Leave Act and a host of other federal laws, many of require updates in response to statutory and/or regulatory changes in the past year. In addition to updating and providing the required Medicare Part D Notice, many group health plan sponsors and administrators also should review and update their group plan language, notifications and processes in response to amendments affecting these practices as well as a series of other recent changes to federal mandates affecting group health plans. For more information about these and other developments affecting group health plans, checkout some of the writings and recorded presentations of Ms. Stamer available here.

If you need assistance reviewing or updating your group health plan’s implications of the MMA on your group health plans or other health or employee benefit plan requirements, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for her more than 20 years work, writing and leadership advising employers and other plan sponsors, plan administrators and fiduciaries, insurers, administrative services providers, brokers, and others about the design, documentation, administration and defense of health and other employee benefit, insurance, and other compensation and employment practices. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

IRS Updates Procedures Qualifying Small Employers Can Use To Qualify To Report Employment Taxes Annually Rather Than Quarterly

October 27, 2009

The Internal Revenue Service (IRS) today published updated procedures governing when certain employers may elect to report social security, Medicare and withheld federal income taxes (employment taxes) annually by filing IRS Form 944, rather than reporting those amounts quarterly for tax years beginning after December 31, 2009.

Beginning in the 2010 tax year, Revenue Procedure 2009-51 will allow qualifying employers to opt out of filing Form 944 social security, Medicare and withheld federal income taxes (“employment taxes”) for any reason if they follow the procedures set forth in Revenue Procedure 2009-51 by the applicable deadline specified in the Revenue Procedure. The procedures set forth in Revenue Procedure 2009-51 generally are available only to employers are those with an estimated annual employment tax liability of $1,000 or less for the entire calendar year, other than employers required to make a return on Form 943, Employer’s Annual Federal Tax Return For Agricultural Employees, or on Schedule H (Form 1040), Household Employment Taxes.

Revenue Procedure 2009-51 outlines the procedures that qualified employers can apply to report employment taxes annually on the Form 944. Employers wishing to take advantage of this option must request to file the Form 944 by contacting the IRS as specified in Revenue Procedure 2009-51 and have received the written approval of their request from the IRS before using the Form 944 by the applicable deadline. Alternatively employers who previously received notification of their qualification to file Form 944 must continue to file Form 944 unless the IRS notifies the employer that the employer no longer qualifies to file Form 944 or the employer opts out consistent with the procedures set forth in Revenue Procedure 2009-51.

Employers electing to report employment taxes annually rather than quarterly should ensure that they continue to timely deposit employment taxes as required by the Internal Revenue Code. Generally, the same deposit rules apply to employers regardless of which form they file to report their employment tax liability; however, the de minimis deposit amount may be different. Employers who file Forms 941 and 944 still must deposit their employment tax liability in accordance with the rules in Treas. Reg. §§ 31.6302-1 and 31.6302-1T or, absent reasonable cause, the employers may be subject to the penalty for failure to deposit under section 6656.

Qualifying employers wishing to make elections under these rules must act in a timely fashion. An employer wishing to request to opt in or out of filing Form 944 for the current tax year via telephone generally must call the IRS at the designated number on or before April 1st of the current tax year (e.g., April 1, 2010 for returns for tax year 2010); written requests generally must be postmarked on or before March 15th of the current tax year (e.g., March 15, 2010 for returns for tax year 2010). Special deadlines apply for businesses that recently received an employer identification number or had an employer identification number but were not previously required to file Forms 941 or Form 944. Consult your tax advisor if you have questions about these deadlines.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state employment, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

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Posted by Cynthia Marcotte Stamer

Senate Finance Bill Finishes Drafting & Releases For Review the America’s Healthy Future Act Bill Language

October 22, 2009

Americans finally have a chance to read the actual statutory language of the painfully negotiated package of proposed health care reforms that the Senate Finance Committee proposes for adoption. The Senate Finance Committee leadership finally finished drafting has posted the 1506 page long text of the proposed statutory language of the health care reform provisions of the “America’s Healthy Future Act” on its website here.

When the Senate Finance Committee vote passing the America’s Health Future Act, members of the Senate Finance Committee had not yet had the opportunity to review the actual statutory language to be proposed to implement the package of heatlh care reforms painfully hashed out in their committee. As the actual statutory language had not been completed at the time a majority of the Democrats and one Republican Senator serving on the Senate Finance Committee voted to send the legislation to the the full Senate, the vote actually was taken based on a narative description of the intended reforms set forth in a revised draft of the “Chairman’s Mark” of the legislation. Since that time Senate Finance Committee Chairman Max Baucus and other key Democrat Senators on the Senate Finance Committee have worked behind closed doors to prepare the actual statutory language to be presented to the full Senate.

As proposed, the America’s Healthy Future Act would require sweeping changes to the U.S. health care systems that would radically impact the roles and responsibilities of every patient, health care provider, health care payor, employer and other American. Because of the potential implications on the way health care is financed, delivered and administered and the projections that the legislation will cost approximately $1 Trillion, all parties are urged to carefully review the complex and lengthy legislation to gain an understanding of the legislation and to act quickly to make any concerns known to elected leaders in Congress.

If you need help evaluating or responding to this health care reform legislation or with other employee benefit, compensation, employee benefit or insurance matters, please contact the author of this update, Cynthia Marcotte Stamer. Current Chair of the American Bar Association (ABA) RPTE Section Employee Benefits & Other Compensation Group and the former Chair of the ABA Health Law Section Managed Care & Insurance Group, Ms. Stamer has more than 20 years experience advising employers, private and public health plans and their sponsors, insurers and administrators and others about health care policy, regulatory compliance, risk management and operational issues,

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

OSHA Proposes To Change Hazard Communication Standard

September 30, 2009

December 29, 2009 is the deadline to submit comments to the Occupational Safety and Health Administration (OSHA) on a proposal to modify its existing Hazard Communication Standard (HCS) published in the Federal Register today (September 30, 2009).

OSHA is proposing to conform with the United Nations’ (UN) Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and make various other changes to the HCS. OSHA says the proposed modifications will improve the quality and consistency of information provided to employers and employees regarding chemical hazards and associated protective measures and will enhance the effectiveness of the HCS in ensuring that employees are apprised of the chemical hazards to which they may be exposed, and in reducing the incidence of chemical-related occupational illnesses and injuries.

The proposed modifications to the HCS standard among other things would:

Revise criteria for classification of chemical hazards;
Revise labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; a specified format for safety data sheets; and
Revise related revisions to definitions of terms used in the standard, requirements for employee training on labels and safety data sheets.
Modify provisions of a number of other standards, including standards for flammable and combustible liquids, process safety management, and most substance-specific health standards, to ensure consistency with the modified HCS requirements.

OSHA has proposed to require that employers train employees on the new labels and safety data sheets within two years after publication of the final rule to ensure they are familiar with the new approach and that chemical manufacturers, importers, distributors, and employers be required to comply with all provisions of the modified final rule within three years after its publication. In addition to generally inviting comments on the proposed changes, OSHA has specifically asked for input about the adequacy of these periods.

To review the proposed regulation text, see here.

If you have questions about or need assistance evaluating, commenting on or responding to the Proposed Regulation or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices or other related concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is experienced with assisting employers and others about these and other human resources related concerns. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. You can learn more about Ms. Stamer and her experience here and access other selected publications and presentations by Ms. Stamer here. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

HIT Standards Committee Meets October 14
IRS Proposes Changes In Actuarial Enrollment Standards For Performance of Actuarial Services Under the Employee Retirement
EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations
IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

September 18, 2009

Proposed regulations modifying existing Equal Employment Opportunity Commission (EEOC) rules concerning the conditions that an individual must meet to qualify as having a “disability” for purposes of claiming protection under the Americans with Disabilities Act (ADA) are expected to be published in the Federal Register the week of September 21, 2009.

On September 16, 2009, the EEOC announced that Commissioners had approved a Notice of Proposed Rulemaking (Proposed Regulation) which would make several significant changes to the its current regulatory definition of the term “disability” for purposes of the ADA. The EEOC announced this week that the Proposed Regulation is expected to be published in the Federal Register the week of September 21, 2009. Interested persons will have 60 days from the publication date of the Proposed Rule to submit comments to the EEOC concerning the Proposed Regulation.

Why The Change?

The proposed changes are intended to respond to amendments enacted under the ADA Amendments Act (ADAAA), which took effect January 1, 2009. Enacted on September 25, 2008, the ADAAA made a number of significant changes to the definition of “disability” in the ADA as well as directed EEOC to amend its existing ADA regulation to reflect the changes made by the ADAAA.

The ADAAA amendments to the ADA definition of “disability” make it easier for certain individuals alleging employment discrimination based on disability to establish disability status under the ADA’s definition of “disability” by overruling various Supreme Court holdings and portions of EEOC’s existing ADA regulations considered by many members of Congress as too narrowly applying the definition of “disability.”

While the ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, provisions of the ADAAA that took effect on January 1, 2009 change the required interpretation of these terms. Under the ADAAA, “major life activities” now include both many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating), as well as major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”).

In addition to these clarifications, the ADAAA also broadens the reach of the ADA’s definition of “disability” in various other respects. For instance, the ADAAA:

Asserts that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

As part of the required implementation of its provisions, the ADAAA also mandates that the EEOC revise that portion of its existing regulations defining the term “substantially limits” and “major life activities” to comport to the changes enacted by the ADAAA. In response to this statutory direction, the Proposed Regulation to be published next week proposes changes both to the ADA regulation itself and to the Interpretive Guidance (also known as the Appendix) that was published at the same time as the original ADA regulation. See 29 C.F.R. section 1630. The Appendix provides further explanation from the EEOC on how its ADA regulations should be interpreted.

About The New Guidance and Proposed Regulations

In anticipation of the publication of the Proposed Regulation, the EEOC on September 16, 2009 sought to provided a peek into its new post-ADAAA construction of the ADA definition of disability by releasing its “Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008” Questions and answers on the Notice of Proposed Rulingmaking for the ADA Amendments Act of 2008 (the “Q&As”).

The Q&As and other EEOC statements released this week indicate that the Proposed Regulation will emphasize that the definition of disability — an impairment that poses a substantial limitation in a major life activity — must be construed broadly. It will provide that that major life activities include “major bodily functions;” that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active. The regulation also will provides a streamlined means through which persons claiming disability may demonstrate a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.

Required Response

Employers face increasing exposure to disability claims as a result of the ADAAA amendments, new genetic information nondiscrimination rules enacted under the Genetic Information Nondiscrimination Act (GINA), and a heightened emphasis on disabilities discrimination law enforcement by the Obama Administration. In light of this rising exposure, employers and others covered by the ADA should evaluate their existing practices in light of the Q&As and make adjustments, submit comments regarding the Proposed Regulations or both as part of their efforts to manage their organization’s ADA liability exposure. Because the ADAAA already is in effect, employers already face the possibility of being called upon to defend their hiring and employment practices under the amended ADAAA definition of disability, even though the EEOC has not issued final guidance. For this reason, it is important that employers take timely action both to update relevant written policies and procedures, as well as to change hiring and other operational processes, conduct training, implement appropriate oversight and monitoring and take other steps to mitigate these exposures.

If you have questions about or need assistance evaluating, commenting on or responding to the Proposed Regulations, the Q&As, or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test
OSHA Final Rule Updates OSHA Personal Protective Equipment Standards
DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules
Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations
ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks
New Study Shares Data On Migrant Health Care Challenges Along The Border
Employer & Other Health Plans & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 23
Stamer, Others To Discuss Technology Use/Risks in Employee Benefits, Tax & HR Consulting & Administration
Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision
OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects
With September 8 Deadline For Government Contractors To Use E-Verify, USCIS Invites Comments On E-Verify Program Designated Agent Processr Enforcement

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test

September 15, 2009

December 14, 2009 is the deadline to comment on proposed regulations relating to the exclusion from gross income for amounts received on account of personal physical injuries or physical sickness published by the Internal Revenue Service (IRS) in light of amendments enacted by the Small Business Job Protection Act of 1996.

The Small Business Job Protection Act of 1996 (SBJPA) amended Internal Revenue Code § 104 to delete the requirement that to qualify for exclusion from gross income, damages received from a legal suit, action, or settlement agreement must be based upon “tort or tort type rights” (the “tort test”). As amended by the SBJPA, Code § 104(a)(2) excludes from gross income the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness.

In keeping with this amendment, the proposed regulations published today (9/15/09) would amend the regulations to eliminate the tort test as a requirement for personal injury damages generally to qualify for exclusion under Code § 104. Under the proposed regulations, the current requirement that “personal injuries or sickness” awards be “based upon tort or tort type rights” to qualify for exclusion under Code § 104(a)(2) also would be removed in light of recent judicial and statutory developments. As a consequence, physical injuries could qualify for the Code § 104(a)(2) exclusion even though the injury giving rise to the damages is not defined as a tort under state or common law. Furthermore, the Code § 104(a)(2) exclusion also would not depend on the scope of remedies available under state or common law. As a consequence, the proposed rule would allow the exclusion for damages awarded under no-fault statutes.

According to the proposed regulations, however, the tort test would not be eliminated as a requirement for punitive damage awards to qualify for income exclusion under Code § 104. The preamble to the proposed regulations explains the IRS does not construe the SBJPA amendment as removing the tort test or otherwise extend Code § 104 to such awards. Rather, the proposed regulations would provide that punitive damage awards do not qualify for income exclusion under Code § 104.

If adopted as proposed, the IRS has indicated that it intends to treat the proposed rules as effective for personal injury awards received after August 20, 1996, except for any amount received under a written binding agreement, court decree, or mediation award in effect on (or issued on or before) September 13, 1995. For amounts paid pursuant to a written binding agreement, court decree, or mediation award entered into or issued after September 13, 1995 and received after August 20, 1996, a taxpayer would be permitted to file a claim for refund of any tax overpayments paid within the period of limitations under section 6511.

If you have questions about or need assistance commenting on or responding to the proposed regulations or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices other related matters, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with compensation and employee benefit, workplace safety, equal employment opportunity and other labor and employment, as well as advising ad defending employers against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

Comments Off on IRS Proposes To Update Regulations On Exclusion of Damages Received on Account of Personal Physical Injuries or Physical Sickness To Eliminate Tort Test | Employers, Employment Tax, ERISA, Human Resources, Tax | Permalink
Posted by Cynthia Marcotte Stamer

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

September 9, 2009

The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) today (September 9, 2009) published a final rule revising the personal protective equipment (PPE) sections of its general industry, shipyard employment, longshoring, and marine terminals standards regarding requirements for eye- and face-protective devices, head protection, and foot protection.

The Final Rule published in today’s Federal Register:

Updates OSHA regulatory references to recognize more recent editions of the applicable national consensus standards
Deletes references to obsolete prior editions of the national consensus standards
Amends provisions requiring safety shoes to comply with a specific American National Standards Institute (ANSI) standard
Amends a provision that requires filter lenses and plates in eye- protective equipment to meet a test for transmission of radiant energy specified by another ANSI standard.

Instead of the amended standards, OSHA will require this safety equipment to comply with the applicable PPE design provisions.

The changes implemented under the Final Rule will become effective on October 9, 2009. Interested persons can review a copy of the Final Regulation here.

If your business needs assistance with auditing, updating or defending its workplace health and safety, human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; another Curran Tomko Tarski, LLP attorney of your choice.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employers and others about compliance with federal and state workplace safety, equal employment opportunity and other labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising ad defending employers against federal and state employment discrimination and other labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on wage and hour and a diverse range of other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here. Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

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Posted by Cynthia Marcotte Stamer

DOL Proposes Changes To H-2A Temporary & Seasonal Agricultural Nonimmigrant Worker Certification Procedures & Related Rules

September 4, 2009

The Department of Labor (DOL) is proposing changes to its rules governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers.

The proposed changes appear in a Notice of Proposed Rulemaking (Proposed Rule) in today’s (September 4, 2009) Federal Register here. The Proposed Rule reexamines the process by which employers obtain a temporary labor certification from DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. DOL also proposes to amend the regulations at 29 CFR part 501 to provide for sufficient enforcement under the H-2A program so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program.

About The Author

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has more than 20 years experience representing and advising businesses and government on labor and employment, internal controls, employee benefits, safety and other related matters. An ABA Joint Committee on Employee Benefits Council Member and Chair of the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer also is a highly popular speaker and widely published author. Her insights on human resources, employee benefits and internal controls matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here

We hope that this information is useful to you. If you need assistance responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Ms. Stamer here.

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

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Posted by Cynthia Marcotte Stamer

Register Now For HITECH Act Health Data Security & Breach Update: Learn What You Must Do This Month To Comply With New Health Data Breach Regulations

September 2, 2009

September 10, 2009 – Noon to 1:30 P.M. Central Time Participate In Person or Via Remote!

Health care providers, health plans, health clearinghouses and their business associates (Covered Entities) must comply with the new “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) by September 23, 2009.

Catch up on what the Breach Rule means for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Thursday, September 10, 2009 from Noon to 1:30 P.M. Central Time for a registration fee of $45.00. Registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For information about registering for this program or other questions here,

The Breach Rule requires Covered Entities to notify affected individuals following a “breach” of “unsecured” protected health information. Just published August 24^th, the Breach Regulation is part of a series of guidance that HHS is issuing to implement new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA). The briefing will cover:

Who must comply, health plans, employers, others?
What your organization must do
How to qualify protected health information as exempt from the breach regulations as “secure” protected health information
What is considered a breach of unsecured protected health information
What steps must a covered entity take if a breach of unsecured protected information happens
What liabilities do covered entities face for non-compliance
What new contractual requirements, policies and procedures Covered Entities and Business Associates will need
How the Breach Regulation, the Privacy Regulation, impending FTC red flag rules and state data breach and privacy rules interrelate
Other recent developments
Practical tips for assessing, planning, moving to and defending compliance
Participant questions
More

About The Presenter

The program will be presented by Curran Tomko and Tarski LLP Health Care & Employee Benefits Practice Leader and Partner Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her work, publications and presentations on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts. Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, a ABA Joint Committee on Employee Benefits Council Representative, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 20 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or another Curran Tomko Tarski LLP Partner of your choice.

Other Helpful Resources & Other Information

If you find this of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.net.

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Posted by Cynthia Marcotte Stamer

ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

August 25, 2009

Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the Americans with Disabilities Act (ADA) “in favor of broad coverage of individuals” do not apply to actions taken before effective date of the ADAAA, January 1, 2009, according to a recent decision of the U.S. Circuit Court of Appeals for the District of Columbia. While the holding provides some comfort for employers in relation to pre-January 1, 2009 actions, employers need to take appropriate steps to mitigate disability claim risks for actions on or after the January 1, 2009 effective date of the ADAAA.

As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

In Lytes v. DC Water and Sewer Authority, D.C. Cir. No. 08-7002 (July 21, 2009), the D.C. Court of Appeals considered and rejected the retroactivity argument made by Lytes in his appeal from a trial court’s finding that he was not disabled under the ADA. As the ADAAA took effect while his action was pending, Lytes sought to convince the Appeals Court to apply the ADAAA amended definition retroactively. Contending that the ADAAA amendment merely clarified the existing law under the ADA, Lytes argued that the Court should apply the broader definition of disability when considering the legality of his termination from employment in 2004.

Rejecting Lytes’ retroactivity argument, the Court of Appeals ruled that the ADAAA amendment of the definition of “disability” under the ADA applies only on a prospective basis based on its finding that Congress had clearly provided that the ADAAA amendments only would apply to post-December 31, 2008 actions. Accordingly, the Court of Appeals affirmed the District Court’s finding that Lytes termination in 2004 did not violate the ADA as then effective as his lack of disabled status under the then-applicable definition of disability meant he was not entitled to accommodation.

In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the Equal Employment Opportunity Commission (EEOC) to update its existing guidance to confirm with the ADAAA Amendments.

Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits. Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).

While the Lytes decision indicates that businesses will not be required to defend pre-2009 actions under the amended disability standards enacted by the ADAAA, businesses should prepare to meet new challenges in defending ADA claims arising from actions taken after December 31, 2008. The ADAAA amendments make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA. Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA. Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment.

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions. For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information. The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA.

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008. Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws. For instance, GINA’s employment related provisions include rules that will:

Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Curran Tomko Tarksi LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer at 214.270.2402.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

Comments Off on ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks | ADA, Corporate Compliance, EEOC, Employers, GINA, Human Resources, OFCCP, Retaliation | Tagged: ADA, Corporate Compliance, Disability Discrimination, Employee Benefits, Employers, Employment, Health Insurance, Health Plans, Human Resources | Permalink
Posted by Cynthia Marcotte Stamer

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