President Trump’s recently issued Executive Order entitled “Strengthening Retirement Security In America” (the “EO”) may be helpful to businesses that sponsor or participate in multiple employer retirement plans (“MEPs”), as well as single employer plans, even if the sponsors and employers are not small business owners. While the stated purpose of the EO, which was issued on August 31, 2018 (the “EO Date”), is to “promote retirement security for America’s workers,” the EO directs attention to small business owners (less than 100 employees), noting that such businesses are less likely than larger businesses to offer retirement benefits. The EO also notes that regulatory burdens and complexity can be costly and discourage businesses, especially small ones, from offering retirement plans to employees. This post summarizes the four actions identified in the EO that the Federal Government may take to promote retirement security. While these actions are intended to benefit small businesses, large businesses that participate may benefit as well.

First, the EO may expand the circumstances under which a business or organization can sponsor or participate in an MEP. The EO directs the Secretary of Labor to consider, within 180 days following the EO Date, proposing regulations to clarify when a group or association of employers or other appropriate business or organization can be treated as an “employer” within the meaning of Section 3(5) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The definition of “employer” is significant, as an employee benefit plan, such as an MEP, is typically sponsored by an “employer”. (An “employee organization”, such as a labor union, may also sponsor an employee benefit plan.) If an MEP were sponsored by businesses that were not considered a “group or association of employers” pursuant to Section 3(5) of ERISA, the MEP would not be treated as a single plan covering all of the participating businesses. In that case, each business participating in the MEP would be treated as sponsoring its own plan for all purposes under ERISA and would have to separately comply with ERISA’s requirements, such as preparing a written plan document and summary plan description, having an ERISA bond, and filing a Form 5500. Clarification of the term “employer” may allow businesses that sponsor or participate in single employer plans to treat such plans as an MEP and thereby minimize their individual responsibilities under ERISA. The clarification may also create new opportunities for businesses to sponsor MEPs.

Second, the EO may reduce compliance burdens for MEP sponsors. The EO directs the Secretary of the Treasury to consider, within 180 days following the EO Date, amending regulations to modify the rule providing that if one participating employer in an MEP fails certain non-discrimination requirements, the entire MEP fails. For example, under current Treasury regulations, the actual deferral percentage test and actual contribution percentage test are applied separately to each participating employer in the MEP, as if that employer maintained a separate plan. If one participating employer fails one of the tests, then the MEP fails the test and could potentially be disqualified for all participating employers. This regulation can present a dilemma for MEP sponsors, as they cannot be certain that each participating employer will satisfy the non-discrimination requirements. Therefore, modification of the regulations should benefit businesses that sponsor MEPs.

Third, the EO may reduce the costs associated with required disclosures to participants in MEPs, and in single employer plans. The EO directs the Secretaries of Labor and Treasury to review, within one year following the EO Date, actions that could make retirement plan disclosures more useful for participants, while reducing costs for sponsors and participating employers.

Finally, the EO directs the Secretary of the Treasury to determine, within 180 days following the EO Date, whether the actuarial tables used to calculate the amount of required minimum distributions should be updated annually (or on another periodic basis) to reflect current mortality data. This update could reduce the amount of annual required minimum distributions, which would benefit participants in single employer plans, as well as in MEPs. Such change could also reduce the administrative burden on plan sponsors and participating employers associated with making these distributions.

Takeaways

If the actions described above result in changes in law, such changes should benefit businesses that sponsor or participate in MEPs and single employer plans.   In addition, such changes may provide new opportunities for businesses to sponsor MEPs. Given the time frames imposed by the EO, businesses might see proposed regulations or other guidance addressing some of these changes during 2019.

Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Proposed Federal Bill Would Pre-Empt State and Local Paid Sick Leave Laws.”

Following is an excerpt:

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight states and more than 30 local jurisdictions have passed paid sick leave laws.

The minimum amount of paid leave employers would be required to provide depends on the employer’s size and employee’s tenure. The bill does not address whether an employer’s size is determined by its entire workforce or the number of employees in a given location. …

Read the full post here.

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

Although the health care debate has received the bulk of the media attention, other legal developments also promise to have significant impact on health care employers.  For instance, the  Equal Employment Opportunity Commission (“EEOC”) appears to have set its sights on the accommodation of disabled workers in the health care industry, and recent decisions regarding employees’ rights to use medical marijuana may impose new burdens on employers.

These and other developments are discussed in this edition of Take 5:

  1. Will The Affordable Care Act’s Non-Discrimination Regulations Continue to Cover Gender Identity and Transition Services?
  2. Restrictive Covenants – How Effective are Non-Competes and Non-Solicits in the Health Care Industry?
  3. Navigating the Interactive Process:  Best Practices for Complying with the ADA
  4. A Growing Trend In Favor of Medical Marijuana Users in the Employment Context
  5. ERISA Withdrawal Liability: Make Sure to Look Before You Leap Into Mergers and Acquisitions

Read the full Take 5 online or download the PDF.

On June 5, 2017, in Advocate Health Care Network et al. v. Stapleton et. al, the Supreme Court unanimously held that employee benefit plans maintained by church-affiliated hospitals were exempt from the Employee Retirement Income Security Act (the “ERISA”), regardless of whether the plan was actually established by a church. The plaintiffs consisted of current and former employees of three church-affiliated non-profits who ran hospitals and healthcare facilities that offered their employees defined benefit pension plans established by the hospitals and managed by internal hospital employee benefits committees.  The plaintiffs filed class actions in three different federal districts alleging that the hospital defined benefit pension plans were not entitled to an exemption under ERISA because they were not established by a church and therefore should be required, among other things, to meet the minimum-funding obligations of ERISA. The pension plans at issue were severely underfunded and ERISA would have required the hospitals to potentially contribute billions of dollars to satisfy the ERISA minimum-funding standards.

Under ERISA, private employers that offer pension plans must abide by a set of rules created to protect plan participants and ensure plan solvency. Section 4(b)(2) of ERISA, however, specifically exempts the employee benefits plans of churches. Section 3(33) of ERISA originally defined a church plan to mean a plan “established and maintained” for its employees by a church or by a convention or association of churches. In 1980, Congress expanded the church-plan definition to state that an “employee of a church” would include an employee of a church-affiliated organization and to add that a church plan includes a plan “maintained” by a “principal-purpose” organization. A “principal-purpose” organization is an organization controlled by or associated with a church or a convention or association of churches the principal purpose or function of which is the administration or funding of a plan or program providing retirement or welfare benefits to employees of such organizations. The Supreme Court found that, under the best reading of the statute, Congress intended that the church plan exemption under ERISA include plans adopted by principal-purpose organizations, even if not established by the church to which the principal-purpose organization is affiliated. In a concurring opinion, Justice Sotomayor agreed with the interpretation of ERISA but cautioned that Congress, when enacting the 1980 amendment, probably did not envision that this exemption would apply to large organizations that employ thousands of employees, operate for-profit subsidies, earn billions of dollars in revenue, and compete in the secular market with companies that must bear the cost of compliance under ERISA. Although she agreed with the majority’s conclusion, she wondered whether the current reality may prompt Congress to make changes.

Takeaway

The Supreme Court’s decision provides assurances to church-affiliated organizations that have treated their employee benefit plans as exempt church plans under ERISA. The organizations should be mindful, however, that as the Court specifically noted, the issue of whether  the hospitals qualified as “principal-purpose” organizations was not brought before it.  Therefore, it remains to be seen how the lower courts address the level and quality of a relationship that must be maintained between a church and a health care provider to qualify it as a “principal-purpose” organization.

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant to ERISA Plan sponsors.  As explained below, these FAQs indicate that the Rule, as currently designed, should not require a large number of significant changes in the administration of most ERISA Plans. …

Read the full post here.

In a notable recent court decision highlighting transgender issues and employer sponsored benefit plans, on January 13, 2017, in Baker v. Aetna Life Ins. Co., 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.), Aetna Life Insurance Co. (“Aetna”) defeated a claim by a transgender employee of L-3 Communications Integrated Systems LP (“L-3”) who alleged that Aetna’s denial of her disability benefits constituted discrimination based on her gender identity. The plaintiff, Charlize Marie Baker (“Baker”), is a participant in L-3’s Employee Retirement Income Security Act (“ERISA”) covered group health plan and short term disability benefits plan (“STD Plan”). Aetna is the third party administrator (“TPA”) of the group health plan and the claim fiduciary and administrator of the STD Plan.

In 2011, Baker began transitioning from male to female, legally changing her name and gender designation on all government issued documents. In 2015, after a consultation with a health care professional who determined that breast implants were medically necessary to treat gender dysphoria, Baker scheduled surgery and sought benefits under the STD Plan to cover her post-surgery recovery. Coverage under the group health plan and benefit claims under the STD Plan were denied. Filing suit against Aetna and L-3, Baker alleged that Aetna and L-3 discriminated against her based on her gender identity in violation of Section 1557 of the Affordable Care Act (the “ACA”), that Aetna denied her benefits under the STD Plan in violation of ERISA, and that Aetna and L-3 violated Title VII by discriminating against her based on her sex.

The court held that there is no controlling precedent that recognizes a cause of action under Section 1557 for discrimination based on gender identity with Baker failing to cite any precedent that recognizes such a cause of action. The court also held that ERISA does not recognize such a claim. Specifically, the court concluded that it is up to Congress to decide whether it wants to create in ERISA a protection that the statute does not expressly provide. Lastly, regarding Baker’s Title VII claims, the court found that Aetna was not an employer of Baker under the “single employer” test or the “hybrid economic realities/common law control” test. However, the court declined to dismiss Baker’s Title VII claims against L-3, finding Baker did sufficiently argue that she was denied employee benefits due to her sex.

Takeaways

While the Northern District of Texas declined to find a cause of action for gender identity discrimination under Section 1557 of the ACA, there are several cases of gender identity or transgender discrimination pending that may further impact the law for these benefit claims under Section 1557. There is little likelihood, however, that a claim of gender identity discrimination will be successful under ERISA. If the ACA is repealed under the Trump administration, Section 1557 will no longer be available and transgendered employees would be limited to claims under Title VII, to the extent that employees are successful in arguing that discrimination on the basis of gender identity constitutes sex discrimination.

 By Anna A. Cohen

In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” in light of the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013).   In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take FMLA leave, among other reasons, to care for the employee’s spouse who has a serious health condition.

1. Place of Residence Definition

In August 2013, the DOL issued updated FMLA guidance documents as a result of President Obama’s directive to the DOL to coordinate with other federal agencies to implement the Windsor decision.  This initial guidance removed references to DOMA, affirming the availability of spousal leave based on same-sex marriages under the FMLA; however, the DOL only expanded benefits to same-sex married couples residing in states that recognize same-sex marriage.  For example, updated DOL Fact Sheet # 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act defines a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  This narrow definition of “spouse” is significant to employers with locations in multiple states since only 19 states, to date, recognize same-sex marriage, whether by court decision, legislation or popular vote.  If the DOL codifies the place of residence definition of “spouse,” employers with employees in a same-sex marriage who work in a state where their marriage is legally recognized, but live in a state where it is not, would not be legally entitled to FMLA benefits to care for their spouse. 

2. Place of Celebration Definition

Another option would be for the DOL to broaden the definition of “spouse” to recognize legally married individuals under any state law, regardless of the employee’s residence.  This definition would be consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act (ERISA).  In its ERISA Guidance, the DOL defined the term “spouse” as any “individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”  If the DOL were to adopt the broad place of celebration definition of “spouse” contained in its ERISA Guidance when it amends the FMLA Regulations, FMLA benefits would be available to all legally married spouses, regardless of the definition of “marriage” in the state where the employee lives or where the employer operates.  Accordingly, employers would look to the place of celebration to determine whether employees are entitled to spousal benefits under the FMLA.  For example, employers with employees who legally enter into a same-sex marriage in the Northeast would be considered legally married for purposes of the FMLA in all of the employer’s locations, even if they subsequently live or work in a state which does not recognize that marriage.  

Regardless of the definition adopted by the DOL, employers in all states must be alert to this impending change.  Once the FMLA Regulations are amended, employers should review all FMLA-related policies, procedures, forms and notices.  Employers should also be aware of their obligations under state and local leave laws that may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in civil unions or domestic partnerships. We will continue to monitor the DOL’s position on same sex marriage as it affects the FMLA and other laws and regulations.

Our colleagues Kara Maciel and Adam Solander have a new Law360 article, “Where ERISA and the Affordable Care Act Collide,” that serves as an important wake-up call on staffing decisions that employers have to face.

Following is an excerpt:

In July 2013, the Obama administration announced a delay of the employer mandate provision of the Affordable Care Act for one year (i.e., the employer mandate). While back in July a one-year delay seemed like an eternity, the reality is that given the way in which most employers will determine whether an employee is classified as full-time, and therefore is eligible for coverage, as a practical matter, in very short order employers may be forced to make staffing decisions that could expose them to liability. This article will examine some of the risks associated with employer staffing decisions and how those risks maybe mitigated.

Download a PDF of the full article here.

In May 2012, the Employee Benefit Research Institute (“EBRI”) issued a report showing that the percentage of workers covered by employer-sponsored health care coverage (measured through April 2011) continued to fall despite improvement in the economy.  Employer-sponsored health care coverage is the most common source of health care coverage for workers who exceed the poverty line and who are not yet eligible for Medicare.  It covers approximately 69% of workers, 46% of non-working adults and 55% of children.

The EBRI report notes that there is a generally recognized link between unemployment rates and employer-sponsored health care coverage.  This can be shown by data collected from the recent recession, measured from December 2007 through June 2009, showing that the percentage of workers with employer-sponsored health care coverage fell from 60.4% to 55.9% as measured by EBRI through August 2009.  As the economy improved, the percentage rate recovered slightly to 56.5% by December 2009.  Nevertheless, in April 2011, the percentage of employer-sponsored coverage fell even further to 55.8%, with preliminary indications of a decline in June 2011 to 55.2%.

Another finding from the EBRI report is that most uninsured workers reported that they did not have health care coverage because of cost.  Moreover, the percentage of uninsured workers citing cost as a reason for their uninsured status rose to 86% in May 2009 and continued to climb to 90% in June 2011.  (This data does not differentiate between the cost of employer-sponsored health care coverage and individually-purchased health insurance policies.)

The continued decline in the percentage of workers receiving employer-sponsored health care coverage poses a particular challenge to the implementation of the Patient Protection and Affordable Care Act of 2010 (“PPACA”).  The employer responsibility provisions of PPACA impose tax penalties if employer-sponsored health care coverage does not provide a certain level of benefits, with a higher level of tax penalties for employers that do not sponsor any group health plans.  The employer responsibility tax penalties have been widely reported to cost less to an employer than the actual cost of providing health care coverage to workers.  When the employer responsibility provisions of PPACA become effective in 2014, there could be a further decline in the percentage of workers with employer-sponsored health care coverage if employers elect to drop coverage and instead pay the tax penalties under PPACA.  As the purpose of PPACA is to expand health care coverage, any reduction in coverage in the workplace is likely to have the opposite effect of increasing the number of uninsured workers.  However the Supreme Court of the United States decides on the constitutionality of PPACA in mid-June, the declining rates of employer-sponsored health care coverage continue to make headlines.

A copy of the EBRI report may be found here.

We are pleased to announce the release of the inaugural edition of the quarterly Benefits Litigation Update (“Update”) – a joint project between Epstein Becker Green and The ERISA Industry Committee (ERIC), a non-profit association committed to representing the advancement of the employee retirement, health, and compensation plans of America’s largest employers.

The Update is a quarterly publication which provides two primary components:

  1. a Featured Article addressing a trend or topic currently being discussed in the benefits community which (i) explains why the topic is important, (ii) explains the impact of the topic on the reader, and (iii) proposes some action that should be considered in response; and
  2. select Case Summaries involving noteworthy benefits litigation issues across the country.

FEATURED ARTICLE

Benefit Claim Denial Litigation
After Glenn and Conkright
By: Paul Friedman and John Houston Pope

No single issue accounts for more ERISA litigation than the denials of claims for benefits. ERISA Section 502(a)(1)(B) provides a vehicle for a dissatisfied participant to obtain judicial review of a denial of benefits. Although ERISA permits either a state court of competent jurisdiction or a federal court to hear a lawsuit seeking review of a claim denial, most suits end up in federal court, either by claimant’s choice or the exercise of a plan’s right to remove to a federal forum. . .

Read the full Update here.