Call to Action: New COBRA Notices Due Soon

On April 12, 2021, Lake Effect HR & Law posted a blog notifying our readers about new COBRA provisions under the American Rescue Plan Act of 2021 (ARPA). We encourage employers who are federal or state COBRA covered employers to take prompt action, as deadlines for notices are upon us.

  • Starting April 1, 2021, employers are required to send a new ARPA COBRA summary fact sheet and new required COBRA notice to covered employees and their dependents who have had qualifying events.
  • By May 31, 2021, employers are required to send a new ARPA COBRA summary fact sheet and new extended COBRA election notice to covered employees and their dependents who had certain qualifying events between October 1, 2019 and April 1, 2021.

Please see our prior blog for live links to the required ARPA COBRA summary fact sheet and new COBRA notices. As always, if you need assistance or advice on administering these new COBRA notices, please reach out to the HR professionals and attorneys at Lake Effect HR & Law. Please know that employers and plans may be subject to an excise tax under the IRS Code for failing to satisfy the new COBRA requirements. The tax may be as much as $100 per qualified beneficiary.

We continue to monitor developments and guidance relating to the American Rescue Plan Act of 2021 and other legislative efforts to address the continuing impact of the COVID-19 pandemic. We will provide you with employment-related updates on these topics as they arise.

New COBRA Notice Requirements for Employers Under the American Rescue Plan Act

On April 7, 2021, the US Department of Labor published FAQs and model notices implementing the temporary COBRA premium assistance provisions of the American Rescue Plan Act of 2021 (ARPA). Employers and other group health plan issuers are subject to new COBRA notice and other requirements.

What: Under the ARPA, “Assistance Eligible Individuals” may elect to continue employment-based group health plan coverage for up to 5 months – from April 1, 2021 through September 30, 2021 – without paying COBRA premiums. Employers or plan issuers must pay premiums on behalf of such individuals and will be reimbursed through a COBRA premium assistance tax credit.

Who: To be an “Assistance Eligible Individual” under the ARPA, an individual must meet all of the following requirements:

  • MUST have a COBRA qualifying event that is a reduction of hours or an involuntary termination of employment (NOT including a voluntary termination or a termination for gross misconduct);
  • MUST elect COBRA continuation coverage;
  • MUST NOT be eligible for Medicare; and
  • MUST NOT be eligible for coverage under any other group health plans, such as a plan sponsored by a new employer or a spouse’s employer.

When: COBRA premium assistance is available for periods of coverage from April 1, 2021 through September 30, 2021. Assistance will end earlier if an individual:

  • Reaches the end of their maximum 18-month COBRA continuation period; OR
  • Becomes eligible for Medicare or other group health plan coverage (including from a new employer).

Notice Requirements: Employers and other plan issuers must notify qualified beneficiaries about COBRA premium assistance and other rights as follows:

Additional Election Opportunities: The ARPA provides additional COBRA election opportunities under certain circumstances:

  • Group health plans may (but are not required to) offer Assistance Eligible Individuals the option to choose coverage different from that which they had at the time of the COBRA qualifying event, subject to certain restrictions and additional notice requirements.
  • If a family member of an Assistance Eligible Individual did not initially elect COBRA continuation at the time of a qualifying event, they have an additional opportunity to enroll with premium assistance. This will not extend the period of COBRA continuation coverage beyond the original maximum period.

This summary of ARPA’s COBRA premium assistance provisions is not intended to provide an exhaustive analysis of the law, but your partners at Lake Effect are ready to help you navigate the new requirements. Employers should also work closely with their group health plan providers to ensure complete compliance with COBRA notice and coverage provisions.

We continue to monitor developments and guidance relating to the American Rescue Plan Act of 2021 and other legislative efforts to address the continuing impact of the COVID-19 pandemic. We will provide you with employment-related updates on these topics as they arise.

Twelve Months Later: How Has Your Organization Evolved?

The past 12 months have been a time like no other, forcing organizations to pivot quickly to accommodate a new reality. Now is the time to review handbook policies and internal processes that may have been revised on the fly in response to changing circumstances.

You can start by reviewing the ways your organization has changed since the start of the pandemic in terms of policy and process changes:

  • Did employees’ transition to work remotely?
  • Will they continue to do so? Did they start or expand use of personal devices for business purposes?
  • Have schedules or reporting relationships changed to adapt to new circumstances?
  • Have employees performed remote work from other states? (If they intend to remain there, you may need to register for general business, payroll, and/or unemployment tax purposes in that state. You may also need to review your current benefits offerings, as well specific employment laws for that state or local area. See our blog on state employment laws to consider with remote employees.)
  • Has your brand or business model changed in response to the pandemic? Do you need to update position descriptions or organizational charts?

As you identify changes that have occurred and adjustments that will be necessary, review your employee handbook and update relevant policies to reflect your decisions(Note: We do not recommend changing the handbook for policies that are temporary in nature, such as allowing employees to work remotely only until worksites open again. Temporary policies can be freestanding.)

In addition, consider the impact that the past year had on your employees and your organization’s culture:

  • Some employees may have been working onsite throughout the pandemic. Others may be excited to return to the workplaceand still others may be cautious to returnThis can result in actual or potential conflicts between employees who may judge or simply not understand another’s perspective.
  • Some employees may be experiencing mental health issues resulting froisolation or other challenges encountered over the past year, while others are thrilled to be out of the house and back in the office.
  • Some employees may feel the stress of changing family routines and expectations, and they may need additional time to adapt or help family members adapt.
  • Some employees may be grieving the loss of a loved one during the pandemic, while others have experienced minimal personal impact.
  • Some employees may need more time than others to reacclimate to their commute and former schedule at a worksite.

As your employees and you address these difficult issues, you   can reaffirm a culture of inclusion, acceptance, and respect with effective planning, clear communication, flexibility, and empathy.

Lake Effect is here to answer your questions about how to handle these important workplace transitions and evolution, while maintaining your culture and supporting your mission and vision. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Learning To Build A Stronger Teams In A Virtual World

Their positive attitudes carry an edge of lighthearted humor that paints the HR field with a ‘can do’ attitude for tackling challenges and employment law changes.

Andrea Conrad, Numbers 4 Nonprofits Inc

Many of us are starting to think about what our workspaces will look like when we are able to return more consistently or completely to the workplace. These options include returning full time to the office, continuing to work remotely, or a blend of the two.  No matter which option your organization chooses for its new normal, leaders will need to focus time on retaining talent by nurturing workplace culture and offering professional development opportunities to team members.

As you nurture your workplace culture, consider surveying your team members to learn what helped them be successful in their work and connect with their coworkers while working remotely. When considering professional development, evaluate your current practices and how they can be adjusted to fit and support your new work environment. If your team members will be working virtually – fully or partly – consider how you can offer them virtual coaching and professional development. Employees have proven that they can work, grow, and learn successfully in a virtual world.

Life-long learning is important to all of us at Lake Effect, so we have adapted our in-person workshops to engage with a virtual audience. We love training in-person, but we have found that we also connect, engage, and share knowledge as effectively over Zoom or Microsoft Teams. We realize that Zoom fatigue is real, so we have shortened our workshops to 1-2 hour sessions. To continue to support our clients, partners, and their employees, we offer a variety of in-person and virtual workshops in the following areas:

  • Aligning Strategic Plan & HR
  • Coaching
  • Communication
  • Conflict Resolution
  • Crisis Management
  • Culture Building
  • Employee Development
  • Legal Compliance
  • HR Compliance
  • Management Training
  • Performance Management
  • Respectful Workplace
  • Team Engagement

Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

  • Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
  • Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
  • Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
  • Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
  • Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

DOL Issues Final Rule on Independent Contractor Status under FLSA

***Update, January 27, 2021***

UPDATED BY EXECUTIVE ORDER – CLICK HERE FOR UPDATED INFORMATION

****

On January 6, 2021, the US Department of Labor announced a final rule establishing the test for whether a worker will be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). The final rule adopts the “economic reality” test, which was set forth in the DOL’s proposed rule published in September 2020. Under that test, the two core factors are the nature and degree of control over the work and the worker’s opportunity for profit or loss. For a full discussion of that test, these key factors, and other relevant considerations, please review Lake Effect's September 22, 2020 blog on the DOL’s proposed rule. The final rule also reiterates that the actual practice of the employer and the worker will govern the inquiry, not contractual language or theoretical possibilities.

The final rule will be published in the Federal Register on January 7, 2021 and take effect on March 8, 2021.

Keep in mind that DOL’s final rule is unlikely to fully resolve this challenging issue for most employers. Many states have adopted their own tests for independent contractor status, and these can vary widely from state-to-state, and even within a state, depending upon the issue being addressed (i.e., unemployment eligibility, wage and hour, tax liability). Lake Effect continues to monitor federal and state laws and guidance relating to independent contractor status, and we will keep you apprised of developments in this area.

Lake Effect is here to answer your questions about independent contractors, FLSA, and labor laws. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

'Tis the Season

This year has taught us lessons we could not have imagined a year ago: lessons on time management, work-life integration, and overcoming professional and personal hurdles. Even in the best of times, the end of the calendar year can be extremely busy for many organizations. For individuals, this time of year also brings hectic schedules and other stressors, both emotional and financial. Additional challenges presented by the pandemic, social unrest, and the recent contentious election will likely make December 2020 a uniquely difficult time.

As we head into this month, we encourage you to take a step back and think about what you expect from your teams, and what you can offer them in return.

  • As more organizations continue with a remote work force, it becomes easy to assume someone is available and checking in at all hours of the day. Learn to respect employees’ off-hours by honoring their boundaries and implementing strategies that allow them to disengage and focus on other aspects of their busy lives:
    • Empower employees to honor their own boundaries by committing to not working during their off hours.
    • Set clear expectations for employees and supervisors about work hours and non-work hours and encourage all to respect these times.
      Encourage employees to use their “out of office” messages in email or voice mail during non-working hours.
    • Consider whether your emails to staff who are on vacation need to be sent immediately. Does the email involve an issue that can wait until they return to work? Even if you don’t expect them to respond to you at that time, sending a message during non-working hours can have a negative effect on employees trying to disengage.
    • Use the Delay Delivery option on email. This tool allows you to draft a message while it is fresh in your mind but delays an employee’s receipt of that email until they resume work hours.
    • Make sure your non-exempt employees and their managers understand that all work time – even checking and responding to quick emails at night – is work time that must be tracked and compensated.
  • Think about other ways you can support your employees individually and collectively at this time:
    • If your benefits plan comes with an Employee Assistance Program (EAP), now is a good time to share the information again with employees to remind them of the services that are available to them. If employees do not have access to an EAP, consider partnering with local non-profit agencies that may be able to provide different resources and support. For example, United Way 2-1-1 is a national hotline that connects people with resources in their own communities and is available 24 hours a day, 7 days a week.
    • Does your organizational have a culture that encourages mental and physical wellness? Consider organizing a challenge to incentivize self-care or arrange for group exercise times.
    • Coordinate fun group activities such as cookie recipe exchanges, secret gift exchanges, or donations to a non-profit your organization supports.
  • Show support for your employees in tangible and intangible ways:
    • If your organization has a budget for it, consider sending a “Thank you for getting us through 2020” gift, gift card, or bonus with a personal message written to each employee.
    • Surprise employees with an extra half day off one afternoon; encourage them to take the time to do something nice for themselves.
    • Check in with your employees individually; ask them “Are you OK?” and mean it. Listen to their concerns.

By necessity, you spend most workdays focused on the needs of your organization, clients, and other stakeholders. This month, we encourage you to take some time to focus on your employees, one of your most important assets. It’s been a hard year for so many. Let’s grant each other some grace to finish out the year strong, and together we can welcome 2021 with renewed strength.

Employee Holiday Travel during COVID-19

Traditionally, November and December are months when employees take more time off to travel and/or spend time with family and friends for holidays. This year, employers and employees need to consider the health risks involved in traveling and group gatherings due to the COVID-19 pandemic. The reality is that employees’ increased exposure to COVID-19 can present risks to co-workers, customers, and the overall reputation of an organization.

We encourage employers to review current policies regarding time off during the holidays to see if they reflect current practices and current COVID risk mitigation measures. As with any issue related to the pandemic, employees and employers should adhere to current guidance provided by the CDC, as well as local and state guidelines in their home area and in any areas they may visit. The CDC website has valuable information related to Travel During the COVID-19 Pandemic, as well as a page specifically related to Holiday Travel. Although employers cannot dictate whether or not an employee travels during non-work time, employers are well-advised to share this information with employees so they fully appreciate the risks involved with travel and gatherings.

In the event that employees are exposed to or test positive for COVID-19 during the holiday season, employers should consult this helpful resource provided by PHMDC.

Lake Effect is here to answer your questions about protecting your workforce and complying with state and local public health orders. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Annual Benefit Notice Requirements

As employers prepare for their annual benefit renewal process, they should also note the compliance notices that must be provided to employees. Lake Effect has compiled a list of benefit related notices for employers to review. Some notices should be distributed to new hires during orientation, and some need to be distributed to current employees annually. This is not necessarily comprehensive for all the notices your organization must provide. Please check with your benefits providers, brokers, and advisors to confirm which notices apply to your organization, and when they must be distributed.


Annual Notices or Upon Initial Enrollment in Coverage:


Summary of Benefits and Coverage:  summarizes the key features of your plan or coverage, such as the covered benefits, cost-sharing provisions, and coverage limitations and exceptions.

Medicare Part D – informs your employees whether the prescription drug plan is considered credible or non-credible within your health plan. Check with your broker for more information.

Health Insurance Exchange Notice/ACA Info – provides information to employees regarding other health care options through the Marketplace.

CHIP Notice (Employer’s Children’s Health Insurance Program) – provides potential opportunities for premium assistance in the State in which the employee resides.

Gina Disclosures (Genetic Information Nondiscrimination Act) – prohibits discrimination in health coverage and employment based on genetic information.

MHPAEA Disclosure (Mental Health Parity and Addiction Equity Act) – generally prevents group health plans and health insurance issuers that provide mental health or substance use disorder (MH/SUD) benefits from imposing less favorable benefit limitations on those benefits than on medical/surgical benefits.

Newborns’ and Mothers’ Health Protection Act Notice – restricts benefits for any hospital length of stay in connection with childbirth for the mother or newborn child to less than 48 hours following a vaginal delivery, or less than 96 hours following a cesarean section.

Special Enrollment Rights Notice – describes the group health plan’s special enrollment rules including the right to enroll within 30 days of the loss of other coverage or in the case of marriage, birth of a child, adoption, etc.

WHCRA Notice (Women’s Health and Cancer Rights Act) - insurance plans and companies that cover mastectomy procedures must also cover certain related services, such as surgery and reconstruction, prosthetics, and treatment of physical complications resulting from the mastectomy. A notice of rights under WHCRA must be provided to each participant and beneficiary under the plan when they enroll, and then annually.

CMS (Centers for Medicare & Medicaid Services) – an online disclosure that reports information regarding your plan to the CMS.

Disclosure of Grandfathered Status (only applies if health plan is a grandfathered plan)states that your plan or policy may not include certain consumer protections of the Affordable Care Act that apply to other plans, for example, the requirement for the provision of preventive health services without any cost sharing.

Notice of Privacy Practices – describes how providers may use and share your health information. It must also include your health privacy rights. If you have a self-funded plan, including a Health Reimbursement Arrangement, you may need to provide your plan HIPAA Privacy Notice. Check with your broker to see if this applies to your plan.

Wellness Program Disclosure – requires employers  who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and how it will be confidential.


New Hires:


COBRA General Notice – contains important information and instructions regarding health benefits continuation coverage under COBRA. Employers should access the most up to date notice from www.dol.gov.

USERRA Notice (Uniformed Services Employment and Reemployment Rights Act) – protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service.

FMLA (for employers with 50+ employees within a 75-mile radius) – requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons.


Upon Certain Circumstances:


Notice of FMLA Eligibility and Rights & Responsibilities – FMLA covered employers must provide this form to qualifying employees with a qualifying need for FMLA leave.

COBRA Notice and Election Form – provides notice of COBRA rights at the end of employment to notify employees of their right to continue coverage or enroll in the Marketplace.

In addition to the above benefit notices, ERISA and retirement plans may also have specific notices that need to be provided to employees throughout the year. Employers should work closely with their plan advisors to ensure compliance with those notices.

Lake Effect is here to assist with your benefit compliance and administration related questions. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

UI Notice Required at Time of Separation of Employment

Beginning November 2, 2020, Wisconsin employers must notify employees at the time of separation from employment of the availability of Unemployment Insurance (UI) benefits. Notice of unemployment rights can be given to employees by email, text message, letter, or by providing the DWD printed poster in person or by mail.

The content of the notice should include when and how an employee can file for unemployment, unemployment resources, and UI contact information. The DWD provides suggested language to include in end of employment communications to employees, including the digital poster. We encourage employers to use the suggested language and the customizable digital poster. This poster needs to be posted at all times in your workplace or electronically in the case of remote workers.

Note that providing the notice does not necessarily mean that employees will meet the requirements of the Wisconsin UI eligibility laws and/or receive benefits.

Lake Effect is here to answer your questions about employee onboarding, offboarding, or compliance with applicable state and federal employment laws. We continue to monitor important legal and HR developments, as well as COVID-related updated from federal, state, and local authorities. Please keep watching our blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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