Paid Leave Can Contribute to an Employer’s Bottom Line

Posted December 12, 2018 by Megan DiMartino

The Tax Cuts and Jobs Act (TCJA), P.L. 115-97, signed into law at the end of December 2017 created a Federal Tax Credit for employers that provide paid family and medical leave to their employees in 2018 and 2019. On September 24, 2018, the IRS issued updated guidance in Notice 2018-71 (the Notice) on Internal Revenue Code section 45S, the business tax credit for employers that provide paid family and medical leave (the Credit). Under the Credit, which is in effect for calendar years 2018 and 2019 only, an employer that provides paid family and medical leave may claim a credit based on an employee’s qualifying wages. The Credit applies to employers that grant employees earnings less than $72,000, in 2017, at least two weeks of annual paid family and medical leave for full-time employees, and a proportionate amount for part-time employees where the paid leave rate equals at least 50% of the employee’s qualifying wages. The Credit for employers may total between 12.5% and 25% of the qualifying wages. These rules are explained in prior IRS guidance found in the FAQs section of the IRS website.

Some important elements of the Act are outlined below:

  • Who is an eligible employer? – An employer who is eligible for the Credit is one who has a written policy in place that requires the employer to provide at least 2 weeks of paid family and medical leave annually to qualifying employees other than part-time employees. The 2 week requirement is pro-rated for part-time employees (those employees working less than 30 hours per week) by the ratio of the weekly hours they are expected to work to those of an “equivalent” full-time employee.
  • Who is a qualifying employee? – A qualifying employee is any employee under the Fair Labor Standards Act who has been employed by the employer for one year or more and who, for the preceding year, had compensation of not more than a certain amount. For an employer claiming a credit for wages paid to an employee in 2018, the employee must not have earned more than $72,000 in 2017.
  • What constitutes family and medical leave? – For the purposes of the TCJA, family and medical leave has the same definition as the FMLA Sections 102(a)(1)(A)-€ and (3)(Sec. 45S€(1)). Leave can be claimed for any of the following reasons (also see IRS Tax Reform Tax Tip 2018-69, May 4, 2018, available at www.irs.gov, and Notice 2018-71, Q&A 8):
    • The birth and care of a newborn child of the employee;
    • The placement of a child with the employee for adoption or foster care;
    • To care for the employee’s spouse, child, or parent who has a serious health condition;
    • The employee’s inability to perform the functions of his or her position due to a serious health condition;
    • A qualifying “exigency” arising from the fact that the employee’s spouse, child, or parent is on “covered active duty” or “has been notified of an impending call or order to covered active duty” in the armed forces; or
    • For a qualifying employee who is the spouse, child, parent, or next of kin of a covered servicemember, to care for the servicemember.If an employer provides paid vacation leave, personal leave, or medical or sick leave (other than leave specifically for one or more of the purposes stated above), that paid leave is not considered family and medical leave. In addition, any leave paid by a state or local government or required by state or local law will not be considered in determining the amount of employer-provided paid family and medical eave.
  • What are the minimum paid leave policy requirements? – In their written policy, an eligible employer must allow at least two weeks of paid family and medical leave (pro-rated for part-time employees) for all qualifying employees at a rate of at least 50% of the wages normally paid to them. And, for any qualifying employees not covered by Title I of the FMLA, the employer needs to make sure the employer will not interfere with, restrain, or deny any right under the policy. They also need to make sure they will not discharge or discriminate against any individual for opposing any practice prohibited by the policy. Q&A 3 of Notice 2018-71 has sample language to satisfy this “noninterference” requirement. Employers must make the leave available to all qualifying employees, which means all employees who’ve been employed for at least one year and had compensation from the employer for the preceding year that didn’t exceed a certain dollar amount (for 2017 or 2018, this amount is $72,000). The law allows an employer to prorate the two-week leave period for part-time employees (those customarily employed for fewer than 30 hours per week).
  • How to calculate and claim the credit? – The credit is a percentage of the amount of wages paid to a qualifying employee while on family and medical leave for up to 12 weeks per taxable year. The minimum percentage is 12.5% and is increased by 0.25% for each percentage point by which the amount paid to a qualifying employee exceeds 50% of the employee’s wages, with a minimum of 25%. In certain cases, an additional limit may apply.
  • What is the effective date? – The credit is generally effective for wages paid in taxable years of the employer beginning after December 31, 2017, and it is not available for wages paid in taxable years beginning after December 31, 2019.
  • What must an employer’s written leave policy include? – An eligible employer must include in their policy an allowance of at least two weeks of paid family and medical leave (pro-rated for part-time employees) for all qualifying employees at a rate of at least 50% of the wages normally paid to them. And, for any qualifying employees not covered by Title I of the FMLA, the employer needs to make sure the employer will not interfere with, restrain, or deny any right under the policy. They also need to make sure they will not discharge or discriminate against any individual for opposing any practice prohibited by the policy. Q&A 3 of Notice 2018-71 has sample language to satisfy this “noninterference” requirement. Employers must make the leave available to all qualifying employees, which means all employees who’ve been employed for at least one year and had compensation from the employer for the preceding year that didn’t exceed a certain amount (For 2017 or 2018, this amount is $72,000). The law allows an employer to pro-rate the two-week leave period for part-time employees (those customarily employed for fewer than 30 hours per week).
  • When must an employer’s policy be in place? – Except for the first taxable year of an employer beginning after December 31, 2017, an employer can claim the credit only for leave taken after the written leave policy is in place.

Weighing the Potential Benefits for Employers:

The family and medical leave credit is potentially beneficial to employers that already provide paid family and medical leave, with some additional administrative requirements. The requirements and significant costs associated with maintaining benefits and positions for employees out on leave may outweigh any potential tax benefit offered by the new credit for those employers not currently offering paid family and medical leave.

The adoption of a new policy may serve as an employee morale booster. Companies without family and medical leave policy may now want to consider implementing one as employees not currently covered by the FMLA will appreciate the opportunity to have job-protected leave time like other workers. Those workers with those for whom unpaid family and medical leave is already available may also appreciate receiving at least half of their normal salary while they care for a newborn child or take time off from work for other qualified reasons.

For more information see: www.irs.gov

Source: New Tax Credit for Paid Family and Medical Leave | Journal of Accountancy – by: Matthew Geiszler, PH.D., and John McKinley, CPA, CGMA, J.D., LL.M.


For more information, contact info@apbenefitadvisors.com. 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 Webinar | Improve Your 2019 Compliance Outlook – Tips, Tricks & the Dirty Dozen

Posted December 10, 2018 by Megan DiMartino

Join AP Benefit Advisors’ General Counsel and VP of Compliance, Patrick Haynes, Esq., for this HRCI* & SHRM** pre-approved, complimentary, one-hour webinar as he reviews this upcoming year’s compliance tips, tricks and tools of the trade.

Topics include:

  • ACA Limits – Changes to Out-of-Pocket Maximums, HDHP/HSA Interaction, Affordability Increases, etc.
  • Review the EEOC’s and Courts’ ongoing litigation over wellness plans, smoking cessation efforts, etc.
  • Association Health Plans
  • Changes coming to HRAs in 2020
  • IRS Notices
  • Cafeteria Plan Changes
  • And much, much more!

Webinar details:

  • Thursday, December 13, 2018
  • 12:00pm – 1:00 pm EST
  • No cost to attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs

Register Now


*The use of this seal confirms that this activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
**AP Benefit Advisors, LLC 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 shrmcertification.org.


For more information, contact info@apbenefitadvisors.com. 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.

AssuredPartners HRCI & SHRM Pre-Approved Webinar | Let’s Wrap This Up! Understanding the Basics of Health & Welfare Plan Document Requirements

Posted November 19, 2018 by Megan DiMartino

Does your company’s health and welfare plans each have their own plan document and SPD, or are all of your benefits wrapped together under one plan? Do your benefit plan documents and SPDs include the required language under ERISA and other federal laws, or are you relying on the certificates, policies and benefit summaries provided to you by your carriers and/or TPAs to keep you compliant?

If you answered “yes” to the latter questions or if you just don’t know where your company falls, this webinar will help you break down the document requirements and start your company down a path to compliance.

Please join Caroline Smith, Esq., VP of Compliance for AssuredPartners, for this HRCI* and SRHM** pre-approved, complimentary, one-hour webinar as she provides an overview of ERISA and other federal law requirements as they relate to the plan documents, SPDs and the like, and helps you better understand the risks and penalties associated with noncompliance. This webinar will also include a look at the requirements under the Internal Revenue Code and corresponding regulations related to Cafeteria Plans and what those requirements mean to your company. Our goal is to provide tangible takeaways to help employers assess their company’s current risk and learn what to do to get into compliance.

Webinar details:

  • Thursday, November 29, 2018
  • 2:00pm – 3:00 pm EST
  • No cost to attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs

Register Now


*The use of this seal confirms that this activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
**AP Benefit Advisors, LLC 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 shrmcertification.org.


For more information, contact info@apbenefitadvisors.com. 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 Announces 2019 Contribution Limits for Health Care FSAs and Qualified Transportation Plans

Posted November 15, 2018 by Patrick Haynes

Today, the Internal Revenue Service announced the tax year 2019 annual inflation adjustments for more than 60 tax provisions, including the tax rate schedules and other tax changes (generally referred to as cost-of-living increases).  Revenue Procedure 2018-57 provides details about these annual adjustments.

The 2019 tax items of greatest interest to our clients that are employers and plans sponsors include:

  • Annual Healthcare Flexible Spending Account (FSA) contribution limits will increase $50 from the current amount of $2,650 to $2,700.
  • Monthly limit for transit and parking will increase $5 from the current amount of $260 to $265.
  • Annual maximum reimbursement for a qualified small employer health reimbursement arrangement (QSEHRA) will increase $100 for individual coverage from the current amount of $5,050 to $5,150, and the maximum reimbursement amount will increase $200 for family coverage from the current amount of $10,250 to $10,450.

Please contact your Account Manager or Sales Executive for more information.

Links: 

 

Small & Large Employer Health Reform Checklists

Posted November 13, 2018 by Megan DiMartino

Employers that offer health care coverage to employees are responsible for complying with many of the provisions of the Affordable Care Act (ACA). Most health reform changes apply regardless of the employer’s size, but some changes apply only to small employers and other changes apply only to large employers. Even employers that do not offer any coverage need to comply with certain requirements to distribute notices to workers or submit reports to federal agencies.

Linked below are two, different, Health Reform Checklists. One applies to Small Employers and the other to Large Employers.

For more information about which employers are subject to the Employer Shared Responsibility provisions and other ACA-related questions, please contact your Account Manager or Sales Executive.

Links:
Small Employer Checklist
Large Employer Checklist


For more information, contact info@apbenefitadvisors.com. 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.

PCORI Fees Last Installment

Posted November 6, 2018 by Patrick Haynes

Applies to: Self-Insured Health Plans, including HRAs & FSAs

Employers who sponsor self-insured health plans must pay their annual Patient-Centered Outcomes Research Institute (PCORI) fees by July 31st!

PCORI fees are reported and paid annually using IRS Form 720 (Quarterly Federal Excise Tax Return). The applicable PCORI fee you pay each July is based on when your plan year ended.

  • $2.26 for plan years ending between January 1, 2017 – September 30, 2017
  • $2.39 for plan years ending between October 1, 2017 – December 31, 2017
  • $2.45 for plan years ending on/after October 1, 2018 but before October 1, 2019
  • Please see our multi-year reference chart, here.
As a reminder, the PCORI fees are based on the average number of covered lives under the plan or policy. This ordinarily includes employees and their enrolled spouses and dependents. Individuals who are receiving continuation coverage (such as COBRA coverage) must also be included in the number of covered lives under the plan in calculating the fee. Plan sponsors of self-insured health plans must use one of the following three methods to determine the average number of lives covered under a plan for the plan year:
  1. Actual Count Method: A plan sponsor may determine the average number of lives covered under a plan for a plan year by adding the totals of lives covered for each day of the plan year and dividing that total by the total number of days in the plan year.
  2. Snapshot Method: A plan sponsor may determine the average number of lives covered under an applicable self-insured health plan for a plan year based on the total number of lives covered on one date (or more dates, if an equal number of dates is used in each quarter) during the first, second or third month of each quarter, and dividing that total by the number of dates on which a count was made.
  3. Form 5500 Method: An eligible plan sponsor may determine the average number of lives covered under a plan for a plan year based on the number of participants reported on the Form 5500, Annual Return/Report of Employee Benefit Plan, or the Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan.
HRAs and Health FSAs
Health Reimbursement Arrangements (HRAs) and health Flexible Spending Accounts (FSAs) are not completely excluded from the obligation to pay PCORI fees. However, two special rules apply for plan sponsors that provide an HRA or health FSA. Under these special rules:
  1. If a plan sponsor maintains only an HRA or health FSA (and no other applicable self-insured health plan), the plan sponsor may treat each participant’s account as covering a single life. This means that the plan sponsor is not required to count spouses or other dependents.
  2. An HRA is not subject to a separate research fee if it is integrated with another self-insured plan providing major medical coverage, provided the HRA and the plan are established and maintained by the same plan sponsor and have the same plan year. This rule allows the sponsor to pay the PCORI fee only once with respect to each life covered under the HRA and other plan. However, if an HRA is integrated with an insured group health plan, the plan sponsor of the HRA and the issuer of the insured plan will both be subject to the research fees, even though the HRA and insured group health plan are maintained by the same plan sponsor.

The same analysis applies to health FSAs that do not qualify as excepted benefits.

Please contact your AssuredPartners’ Sales Executive or Account Manager for any further questions or assistance.


Please see the following IRS resources for more information on the ACA’s PCORI Fees:
IRS Notice 2018-85 (released 11/05/2018)
For more information, contact info@apbenefitadvisors.com. 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.

HRA Expansion – New Regulations to Expand HRA Use

Posted October 31, 2018 by Patrick Haynes

The Departments (IRS, DOL, and HHS) have jointly proposed regulations in response to President Trump’s executive order directing the agencies to consider regulations or guidance that would expand the availability and permitted use of HRAs (Health Reimbursement Arrangements), allowing HRAs to to be used in conjunction with nongroup coverage.  Most experts see this as a non-starter, since post-ACA all non-retiree-HRAs have to be bundled with a major medical plan to pass the stringent ACA-requirements.

Let’s review the highlights associated with these new regulations.

HRAs Funding Individual Health Insurance. The proposed regulations would allow HRAs to be integrated with, and to reimburse premiums for, individual health insurance coverage if certain conditions are met. For this regulation, individual health insurance coverage is defined as coverage offered in the individual market as well as fully insured student health insurance. Employees and dependents covered by the HRA would have to be enrolled in individual coverage (other than coverage that consists solely of excepted benefits), and an attestation or other verification of enrollment would be required when participation commences and when expenses are reimbursed. Also, the HRA sponsor could not offer a “traditional” group health plan (one that is neither account-based nor limited to excepted benefits) to the same class of employees.  The HRA would have to be offered on the same terms and conditions to all employees within a class, except that the HRA benefit amount could increase by age or family size. The regulations offer several permitted classifications, including full-time, part-time, seasonal, and collectively bargained employees.  Employees would have to be able to opt out and waive future HRA reimbursements at least annually and would have to receive timely written notices with specified HRA information.

Excepted Benefit HRAs. The proposal would allow employers to offer qualified non-integrated HRAs that may be used to pay premiums for excepted benefits, short-term plans, and COBRA premiums (and thus are not subject to the PHSA mandates, and, by extension, ACA mandates) if they meet the following requirements:

(1) The employer makes other non-excepted, non-account-based group health plan coverage available to the HRA participants (enrollment is not required);

(2) no more than $1,800 (indexed after 2020) is newly available to each participant for each plan year (carryovers permitted under the arrangement would be disregarded);

(3) the HRA does not reimburse premiums for individual health coverage, non-COBRA group coverage, or Medicare Parts B or D (premiums for coverage consisting solely of excepted benefits could be reimbursed); and

(4) the HRA is made available under the same terms and conditions to all similarly situated individuals. An excepted benefit HRA could not be offered to employees who are also offered an HRA that is integrated with individual health insurance.

Highlights.

  • Cafeteria Plan Salary Reductions. The preamble clarifies that employers with HRAs that are integrated with individual health insurance could allow employees to use pre-tax cafeteria plan salary reductions to pay any portion of their individual insurance premiums not covered by the HRA. (Presumably, salary reductions would not be available for individual policies offered through an Exchange, due to restrictions under the cafeteria plan rules.) If offered, salary reductions would have to be made available on the same terms and conditions to all employees within a class.
  • Premium Tax Credit Guidance. A proposed IRS regulation would provide guidance regarding the premium tax credit consequences for individuals who are offered or covered by an HRA that is integrated with individual health insurance.
  • ERISA Plan Status of Individual Health Coverage. Under a proposed DOL regulation, the terms “employee welfare benefit plan” and “welfare plan” as used in ERISA would not include individual health insurance funded by an HRA if certain requirements are met. Among other things, the purchase of the insurance must be completely voluntary for participants and beneficiaries; the employer or other plan sponsor must not select or endorse any particular insurer or coverage; and participants must be notified annually that the individual coverage is not subject to ERISA.
  • Exchange Special Enrollments Periods. Proposed HHS regulation would establish an Exchange special enrollment period for employees and their dependents who gain access to an HRA that is integrated with individual health insurance coverage or are provided with a QSEHRA, allowing them to enroll in individual insurance coverage or change from one individual coverage plan to another.
  • Applicability Date; No Reliance. The changes are proposed to apply for plan and taxable years beginning on or after January 1, 2020, and may not be relied on before they are final.

If these regulations are finalized, as they have been proposed, there will be significant changes brought to that nature and scope of HRAs.  Unlike QSEHRAs (Qualified Small Employer HRAs—for sub-50 life groups that aren’t subject to ACA and don’t offer medical/rx coverage) these changes would apply to groups of all sizes.  However, the likelihood of adoption remains small given that many employers already offer cafeteria plans and would not be able to circumvent the non-discrimination rules under IRC Sections 105 and 125.

However, the agencies are accepting comments and are open to suggestions—those comments must be received by December 28, 2018.

In conclusion, if this guidance is finalized, we will have five different types of HRAs:

  1. HRAs that are integrated with other group health plan coverage (that complies with the ACA/PHSA/etc.).
  2. Premium reimbursement HRAs.
  3. Excepted benefit (vision or dental) HRAs.
  4. QSEHRAs (although it remains to be seen what value QSEHRAs would offer in light of the flexibility provided by the proposed regulations).
  5. In addition, retiree-only HRAs will continue to be allowed as well.

Should you have additional questions or comments, please contact your Sales Executive or Account Manager.  Thank you.

Links:

NY Sexual Harassment Prevention Laws

Posted October 23, 2018 by Megan DiMartino

Effective on October 9, 2018, New York State and New York City legislators passed a number of new initiatives for sexual harassment prevention laws in response to the #MeToo Movement and increased allegations of sexual harassment in the workplace. The new laws require various provisions for employee communications, training and several dates for compliance. Overlap exists between both laws, so employers are encouraged to review and consider all requirements when establishing new policies, training programs and employee communications. The New York City Act addresses 11 separate bills and is categorized as being one of the strictest anti-sexual harassment laws in the United States.

Summaries of the New York State and New York City compliance requirements are outlined below:

New York State

  • Law effective October 9, 2018 – Employers must implement sexual harassment training
  • Training must be completed by October 1, 2019
    • Employee training requirements apply to all employers, regardless of size
    • All employees must be trained, including transient
    • Training must be provided on an annual basis
  • New-hire training is to be completed as quickly as possible, but employer may be liable for employees’ actions immediately upon hire
  • Adoption of a written policy must be distributed to all employees and posted at work sites
  • Policy must include:
    • Statement prohibiting sexual harassment, including examples of what constitutes sexual harassment
    • Information regarding Federal and State sexual harassment laws and remedies available to victims
    • Standardized compliant form
    • Procedures addressing timeliness and confidentiality of compliant investigations
    • Outline of employee rights of redress and forums for bringing forward complaints
    • Statement to communicate sexual harassment is a form of employee misconduct and subject to corrective action
    • Statement to communicate retaliation is unlawful and not tolerated

New York City

  • Law effective April 1, 2019
  • Training is to be completed by April 1, 2020
  • Applies to all employers with 15 or more employees (including interns)
  • Applies to all employees working more than 80 hours per calendar year
  • Training must be provided within 90 days of hire date
  • Annual employee training is required
  • Poster requirements should be displayed in prominent locations and be available in both English and Spanish
  • An informational fact sheet should be provided to every new hire
  • Training records (including signed employee acknowledgment forms) must be maintained for 3 years

Tips for Compliance

  • Employers with comprehensive policies and training should review new laws and adjust policy and training content, accordingly
  • Development of policies, training, procedures, and forms should be customized based on company requirements
  • Consult with your attorney or HR Consultant for specialized assistance

More information can be found at:
New York State Department of Labor
Combating Sexual Harassment in the Workplace | The State of New York


For more information, contact info@apbenefitadvisors.com. 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.

3rd Quarter Compliance Newsletter

Posted October 1, 2018 by Megan DiMartino

In this quarter’s Compliance Newsletter:

  • Medicare Part D Notices
  • Summary Annual Reports Due
  • ACA Reporting
  • Affordable Health Plans in 2019 & 2019 Affordability Percentage
  • Exchange Model Notice
  • New Model FMLA Forms
  • Health FSA Carryovers
  • Employers Not Required to Provide Specific Requested Reasonable Accommodations
  • MLR Rebates
  • Federal Court Approves $115 Million Settlement
  • Save American Workers Act of 2018

Please contact your AssuredPartner’s Sales Executive or Account Manager for any further questions or assistance.


For more information, contact info@apbenefitadvisors.com. 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.