Senate GOP’s Better Care Reconciliation Act – Updates

Posted June 23, 2017 by PHaynes

Senate Republicans released their health reform overhaul today after weeks of intrigue.

The fight going forward is going to be over the reoriented subsidies and Medicaid. There is nothing explicit that allows states to waive out of anything new but the general waiver requirements process has been expanded.

The greatly anticipated (and robustly debated) Senate Republican health reform overhaul – the “Better Care Reconciliation Act of 2017” – has finally been released.  The politics of the legislation are unclear, as GOP leaders have virtually no margin for error in a vote that Majority Leader Mitch McConnell intends to push by the end of next week. They may lose only two votes, assuming Vice President Mike Pence will cast the deciding party-line vote.

Employers and Plan Sponsors will be pleased to note that the legislation leaves the employer/employee “exclusion” from taxation on group health benefits untouched.  Taxing employee premiums is a major threat during this process as Congress looks to increase revenue for the measure.  We’re also gratified that the “Cadillac Tax” on high cost health plans would continue to be delayed until 2025.

The House-passed American Health Care Act also included a provision that would delay implementation of the tax until 2025 (from the current law which would implement the tax in 2018).


  • Zeros out individual and employer mandates.
  • Modifies but keeps the individual credits; ties credits to age bands (5) and reduces eligibility to families under 350% of poverty line (from 400 before), but if you have access to employer coverage, you are ineligible with no requirement that the employer coverage be “affordable.”
  • Eliminates small business tax credit regime for health care insurance after 12/31/19 AND between now and then small business health plans are ineligible for the credit if they cover abortion services.
  • Generally repeals all of the taxes in effect after 12/31/17. The Medicare excise tax does not go away until after 12/31/2022, but net investment tax goes away effective 12/31/16.
  • ACA HSA and FSA limits repealed so back to the $5,000 caps.
  • Other HSA reforms are the same as in AHCA – increases the maximum contribution (to be equal to the plans out of pocket limits); allows spousal and catch-up contributions; and allows expenses incurred within 60 days of establishing an HSA to be covered. Does not deal with on-site medical clinic or telemedicine issue.
  • Eliminates federal MLR rebate regime after next year, but requires each State to establish its own MLR regime with rebates.
  • Most Significant Development: allows for the establishment of association health plans as large group plans for small businesses/individuals. These plans would be exempt from the community rating and essential benefit requirements imposed on small group and individual plans.

A chart comparing the Affordable Care Act to the House and Senate bill is available here for your reference.  Should you have any questions or concerns, please contact your Account Manager or Executive.

Legal Reasons to Draft and Update Job Descriptions

Posted June 23, 2017 by Megan DiMartino

Federal labor laws may not require HR professionals to write up job descriptions, but in the best legal interest of your company it’s wise to create job descriptions for each position.

  • They help you defend against discrimination claims. Creating job descriptions, which includes qualifications needed for the position, is a good defense in case of a discrimination claim. Applicants may claim that they were rejected based on their race, gender or age, but having the job description can show a court that you rejected them because they didn’t meet all the qualifications needed.
    Note: Should you find yourself in a situation where you have multiple candidates that meet all the qualifications of the position, it is perfectly legal to base your hiring decision on unwritten criteria or a gut feeling. But to be cautious, it is best to base your decisions off of the criteria that is within the job description.
  • They help determine “essential functions” for ADA purposes. ADA lawsuits may arise if an employee can prove that they’re legally disabled and can still perform the “essential functions” of the job. Vague job descriptions can be left open to a court’s random interpretation.
    Break down the essential functions of a position and identify the purpose of the job, the frequency of each function and any consequences if they functions aren’t performed. Not only should the description include the essential functions, but also the nonessential and less-frequent requirements.
    Four-key categories to include:

    • Physical skills (e.g., standing, walking, lifting, bending)
    • Learned skills (e.g., equipment proficiency, industry experience)
    • Job duties (e.g., travel, hours, shifts)
    • Behavioral skills (e.g., communication, leadership, time management)
  • They help you classify employees as exempt or non-exempt. Exemptions from the overtime rule of the Fair Labor Standards Act (FLSA) are determined on job duties, not job titles. Job descriptions need to match the reality of the job, not just what management thinks the job should or would like the job to entail.
    Requiring a master’s degree for a position when a high school diploma will do may unfairly exclude applicants and lead to a discrimination lawsuit. And having it in the description that managers are allowed to hire and fire employees, but not actually giving them that power, could qualify them for overtime pay as a non-exempt employee under the FLSA.

Some common traps to avoid when creating job descriptions:

  • Describing the employee instead of the job. If you describe a position based on a previous employee who occupied the position, then you’ll be on a crazy witch hunt looking for an exact clone of the ex-jobholder.
  • Using imprecise language. Job description language should be direct, clear, short and simple, and should emphasize the skills and purposes of the position. Begin each requirement with an action verb in present tense, such as supervise, inspect, produce, organize, motivate, educate, administer, compose, analyze and repair. And avoid gender-based language, such as “salesman.”
  • Not being specific enough. You should be stating exactly what you want the applicant to do. Incorrect: “Quality control inspectors should inspect finished products.” Correct: “Inspect nuts emerging from production process for burrs. Place nuts with visible burrs in scrap box.”

Source: Business Management Daily | Job descriptions: Top 3 legal reasons why you need them

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

IRS Begins Large Employer ACA Reporting Penalty Process

Posted June 20, 2017 by Megan DiMartino

As the American Health Care Act (AHCA) has not been signed into law yet, the Affordable Care Act (ACA) is still in effect and the IRS is currently issuing notices to large employers to disclose whether they complied with the ACA reporting duties or not.

Large employer ACA reporting was required for 2015 and 2016 (even if transition relief was applied for 2015). Penalties can be up to $500 per each 2015 Form 1095-C statement ($250 for not providing the form to the employee and $250 for not filing with the IRS) and up to $3 million total for an annual penalty liability.

IRS notices referred to as “Request for Employer Reporting of Offers of Health Insurance Coverage (Forms 1094-C and 1095-C)” (aka Letter 5699) are being distributed to employers that failed to provide Form 1095-C and file copies with Form 1094-C regarding reporting for 2015 or 2016. Employers that receive this will have only 30 days to complete and return the form, which contains the following options:

  • Employer already complied with reporting duties;
  • Employer did not comply but encloses required forms with return letter;
  • Employer will comply with reporting duties within ninety days (or later, if further explained in the form);
  • Employer was not an Applicable Large Employer for the year in question; or
  • Other (requiring a statement explaining why required returns were not filed, and any actions planned to be taken).

The letter also states, “If you are required to file information returns under IRC Section 6056, failure to comply may result in the assessment of a penalty under IRC Section 6721 for a failure to file information returns.”

The IRS offers good faith relief from filing penalties for timely filed forms if they are incomplete or incorrect for 2015 or 2016. This relief is only available upon showing “reasonable cause,” which is narrowly interpreted (ex., due to fire, flood, or major illness).

Please contact your Account Manager or Account Executive should you receive Letter 5699 to assist and plan to respond as required within the 30-day limit.

Source: E for ERISA | Waiting for the Other Shoe to Drop: IRS Begins ACA Reporting Penalty Process

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Verifying Employees’ FMLA Use to ‘Care For’ Their Family Members

Posted June 16, 2017 by Megan DiMartino

The Family and Medical Leave Act (FMLA) allows for eligible employees to take leave to “care for” a family member such as their son, daughter, spouse or parent that suffers from a serious health condition. Even if an employee has a family member that suffers from a serious health condition, it can’t just be assumed that the employee is “caring for” them.

Caring for a seriously ill family member would include such situations where “the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” As well as “providing comfort and reassurance [that] would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.” Performing household or landscaping chores would not generally count as “caring for,” except in limited circumstances.

To prevent being scrutinized by the court, you need to obtain detailed information regarding FMLA leave and evaluate whether your employee is truly providing care for an ill family member or just using it for a chance at an extra getaway.

Gathering the facts:

  • Ask the employee the primary purpose of their leave: Just saying they’re visiting a sick family member doesn’t cut it. You need to be asking who it is that they’re caring for so you can determine if that falls under the FMLA regulations.
  • Ask how they will be providing care: Asking how your employee will be providing care to their family member will help you understand whether they are providing physical or psychological care or both. FMLA regulations encompass both forms of care, but sometimes the analysis for each type is different. The employee doesn’t have to be the only one providing care for their family member.
  • Ask where the family member is located or where the care will be provided: These two locations are not always the same. Employees are more likely to qualify for FMLA if they are in close contact with the ill family member. So most times, having telephone conversations with your ill family member is not sufficient enough. But talking to another family member or the ill family member’s physician about medical decisions is enough to suffice as providing care in some circumstances.
  • Ask if they are substituting for another care provider: If the employee is substituting for the normal care provider or the ill family member is making arrangements for a change in care, then that would fall under the “caring for” requirement. It’s good to note that if the employee is caring for an unconscious or unresponsive family member that is under the care of qualified medical staff, that they are still covered under FMLA. The employee may be providing psychological comfort and support as well as managing the ill family member’s medical decisions.

So to wrap up, ask these critical questions to ensure your employees are utilizing FMLA correctly and to curb fraud and abuse. Make sure to consult with your labor and employment attorney to determine if the “care for” element has been satisfied based on the facts you have carefully and thoroughly obtained from your employee.

Source: HR Daily Advisor | FMLA: How to Verify That Employees Are Truly ‘Caring For’ Family Members

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

IRS Reduces Affordability Percentages for 2018

Posted June 12, 2017 by PHaynes

In Revenue Procedure 2017-36, the IRS announced that for plan years beginning on or after January 1, 2018, employer-sponsored health plan coverage will be considered affordable if the employee’s required contribution for self-only coverage does not exceed 9.56% of the employee’s household income for the year (down from 9.69% for 2017). This percentage is considered for both the ACA’s employer shared responsibility or “pay or play” rules and premium tax credit eligibility. For purposes of an individual mandate exemption, the cost of coverage must not exceed 8.05% of an employee’s household income for the year (down from 8.16% for 2017) (adjusted under separate guidance).

This is the first time since the implementation of the ACA rules that the affordability contribution percentages have been reduced.

As a reminder, the employer shared responsibility rules generally require applicable large employers (ALEs) to offer affordable, minimum value health coverage to their full-time employees (and dependents) or pay a penalty. ALEs determining whether the coverage they offer is affordable may continue to use one of three affordability safe harbors to make this determination and try to prevent penalties. The three safe harbors measure affordability based on Form W-2 wages, the employee’s rate of pay or the Federal Poverty Line (FPL) for a single individual.

As you are determining your employee contributions for the 2018 plan year, keep in mind this new reduced percentage. For those who have already determined your employee contributions for next year, please review your rates to determine if adjustments need to be made.

Please contact your Account Manager or Account Executive for additional assistance.


Prior guidance/Links:

3 Simple Ingredients to Help Your Millennial Employees Flourish

Posted June 12, 2017 by Megan DiMartino

We all desire to feel appreciated at work in some way or another, whether it’s a quick “good job!” in passing, an HR-appropriate pat on the back, or a company-wide recognition. These are all things that your boss or company should be doing regardless of generation, but it seems to be more essential in the mental, physical and life-affirming well-being of our youngest workforce…the millennials.

Millennials may be entitled, impulsive and pampered, but they are also ambitious, fearless, and progressive. They are paving the way for a bolder and brighter future and we need to encourage them instead of putting them down. The older generations have created this new generation, so we need to continue to push and mold them into the successful leaders they feel they can be.

Here are three ingredients you need to keep your millennials alive and well:

  • In-house opportunities: Millennials have a sense of self-worth and need their work to mean something in their life. Aside from their salary and work/life balance needs, millennials’ desire for opportunities to progress and to be leaders. Show them the ways and what it takes to rise up.
  • A fair shake: Even though millennials look a bit more brittle and sensitive, they do know when you’re patronizing them and not treating them fairly. They want to be treated as equally as you would your more seasoned workers. They’re willing to work hard and leave their footprint, but don’t want to be shortchanged in the process.
  • Recognition, when it’s warranted: Millennials are known for their sense of entitlement and need for affirmation, but if you take a look around you’ll find that even your more tenured employees are exactly the same. Employees, including millennials, know when they’ve done well and are making a difference, so recognize and reward ALL well-deserved accomplishments…no matter how big or small!

Source: Business Management Daily | 3 things millennial employees need to excel in your workplace

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Governor Vetoes Maryland Paid Sick Leave Law in Hopes of a Fair Act

Posted June 7, 2017 by Megan DiMartino

Governor Larry Hogan vetoed the Maryland Healthy Working Families Act (the “Act”) on May 25, 2017, that was passed by the Maryland General Assembly. The Act would have required employers with 15 or more employees to provide them with 40 hours of paid sick and safe leave annually beginning on January 1, 2018, while smaller employers, with 14 or less employees, would have been required to provide 40 hours of unpaid sick and safe leave annually.

Governor Hogan called the Act “an irresponsible piece of legislation that unfairly penalizes the hundreds of thousands of hard working men and women who own and operate small businesses in our state.” He also stated that the Act is “a complicated, broad, and inflexible proposal” and is pushing for “a common sense paid sick leave policy that is fair, bipartisan, and balanced.”

The Maryland House of Delegates and Senate passed the legislation with enough votes to override such a veto, so Maryland lawmakers will most likely not have the opportunity to override the veto until next year’s legislative session. House Speaker, Michael E. Busch, said that the veto override will be a priority at the next General Assembly in January.

Source: Proskauer – Law and the Workplace | Maryland Governor Vetoes Paid Sick Leave Law

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Vapooling Benefits and the 80/50 Rule

Posted June 6, 2017 by Megan DiMartino

Question: Some of our employees have organized carpools to commute to work, and we provide those carpools with parking benefits under our qualified transportation plan. Could our transportation plan also reimburse those employees for all or a portion of their other commuting costs as a vanpooling benefit? All of the carpools use employee-owned vehicles and some of those vehicles are quite large (ex: minivans and SUVs).

Answer: It is possible, but under very certain circumstances. To start, “vanpooling” means transportation between the employee’s residence and their place of employment in a commuter highway vehicle, which must have a seating capacity for six or more adults (not including the driver), and at least 80% of the vehicle’s annual mileage must be used for said vanpooling means. To make things sound more difficult, commuting miles count toward the 80% only if the number of employees transported to or from work is at least half of the vehicle’s adult seating capacity (not including the driver). This is referred to as the “80/50 rule.” For example, if the vehicle is carrying six passengers (not including the driver), at least three of them have to be employees in addition to the driver for the commuting miles to count toward the 80% requirement.

While many family-owned vehicles have the capacity capabilities needed to qualify it as a vanpooling vehicle, it is generally unable to satisfy the 80% usage requirement. So many employers don’t offer vanpooling benefits to employee-owned vehicles as it is difficult to determine if they meet the requirements. Instead, some employers provide high-seating capacity vehicles specifically for vanpooling which makes it more likely that the requirements are met.

Another way that vanpooling benefits can be used is if employees use private or public transit-operated vanpools, which are not subject to the 80/50 rule. Private or public transit-operated vehicles are either owned and operated by public transit authorities or by any person which is in the business of transporting people for hire.

Source: Thomson Reuters | Can a Qualified Transportation Plan Reimburse Employees’ Expenses for Carpooling With Their Own Vehicles?

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HRCI & SHRM Pre-approved AssuredPartners & Crawford Advisors Webinar | Straight from the Department of Homeland Security: Insight into the Form I-9 and E-Verify

Posted May 25, 2017 by Megan DiMartino

The U.S. Department of Homeland Security is committed to the best customer service and transparency in the management of Form I-9 and E-Verify. Please join us for this HRCI* and SHRM** pre-approved, one-hour, complimentary webinar as our speaker, Henry W. Nash, Jr., Management Program Analyst from the DHS, presents a review of recent changes and new resources available to assist employers with the employment eligibility verification process. Even the most ‘seasoned’ business professionals will walk away from this presentation with something new. This is a rare opportunity to learn from the expert, so come prepared with any questions or concerns you may have related to the Form I-9 or E-Verify.

Topics include:

  • Resource Service Information
  • Employer Verification Process
  • Completing Form I-9 (Sections 1-3)
  • Storage & Retention
  • E-Verify Overview Process

Webinar Details:

  • Thursday, June 8, 2017
  • 2:30 – 3:30pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.




About our presenter:

Mr. Harry “JR” Nash joined the Department of Homeland Security, United States Citizenship and Immigration Services on August 29, 2011. He is assigned to the Public Relations and Education Section of the Outreach Branch which falls under The Immigration Records & Identity Services Directorate. Mr. Nash’s highly decorated and successful professional career also includes 28 years of honorable active military service in the United States Army. Mr. Nash has served as a First Sergeant and the Senior Enlisted Advisor for five (5) U.S. Army medical headquarters command organizations before retiring in January 2007. Additionally, he has served as a Senior Program Specialist for the Federal Emergency Management Agency (FEMA) from 2008 to 2011.

*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Well, Isn’t it Ironic?

Posted May 23, 2017 by Megan DiMartino

The U.S. Equal Employment Opportunity Commission (EEOC) is currently suing their staffing company, Diverse Lynx, for age discrimination. In the words of Alanis Morissette…”Isn’t it ironic, don’t you think?”

Diverse Lynx, a Princeton, NJ-based IT staffing firm, failed to refer a job applicant based on his age. The EEOC’s lawsuit is based on learning that Diverse Lynx sent the applicant an email stating that he was no longer being considered for the job because he was “born in 1945” and that “age will matter” in regards to the position.

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination based on age, which also includes discrimination in referrals by employment agencies.

The EEOC’s New York District Director, Kevin Berry, stated “The firm told the man, ‘age will matter.’ Actually, the only things that matter are abilities and qualifications, and the EEOC is here to help make sure that’s the way it is in American workplaces.”

To follow more on the lawsuit: EEOC v. Diverse Lynx, Civil Action No. 17-cv-03220

Age Discrimination in Employment Act (ADEA)
The ADEA forbids age discrimination against anyone age 40 or older. Anyone under 40 is not protected under the law, although some states do have laws protecting those younger individuals against age discrimination.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is also unlawful to harass a person based on their age. The law doesn’t prohibit teasing, offhand comments, or isolated comments, but it does become serious if the harassment is frequent or so severe that it creates a hostile work environment or when it results in adverse employment decisions, such as the victim getting fired or demoted.

EEOC | EEOC Sues Its Staffing Company Diverse Lynx for Age Discrimination
EEOC | Age Discrimination

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.