Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

In a complimentary webinar on February 20 (1:00 p.m. ET), our colleagues Frank C. Morris, Jr., and Adam C. Solander will review the ongoing impact of the Affordable Care Act (ACA) on employers and their group health plans.

The Treasury Department and the Internal Revenue Service recently issued highly anticipated final regulations implementing the employer shared responsibility provisions of the ACA, also known as the employer mandate. The rules make several important changes in response to comments on the original proposed regulations issued in December 2012 and provide significant transition relief.

Objectives of the webinar are to:

  • Provide an overview of the shared responsibility rules
  • Discuss how the changes to the rules will affect employers of all sizes
  • Analyze special rules for seasonal, educational, and other employees and those with breaks in service
  • Provide insight into compliance issues affecting employers
  • Discuss strategies for compliance
  • Provide a roadmap of future ACA regulations

Click here to read more about this webinar, or click here to register.

Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:

It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action items to maximize the use of your time and resources for optimum results in 2014. …

  1. Consider Whether Your Organization Should Adopt Mandatory Arbitration Agreements and Seek to Bar Class/Collective Actions in 2014
  2. Enhance the Accessibility of Your Organization’s Website to Individuals with Disabilities
  3. Ensure That Proper Exempt/Nonexempt and Independent Contractor/Employee Determinations and Updated Job Descriptions Are in Place in 2014
  4. Update Confidentiality and Non-Compete Agreements to Better Protect Intellectual Property and Human Capital Assets in a High-Technology, BYOD, Mobile World
  5. Consider Key Employer ACA Issues for 2014

Read the full newsletter here.

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.


We recommend this recent post on the Hospitality Labor and Employment Law blog: “IRS Releases Proposed Rules on Employer’s Information Reporting Requirements Under the Employer Mandate of the Affordable Care Act,” by Kara Maciel, Adam Solander, and Brandon Ge, our colleagues at Epstein Becker Green.

Following is an excerpt:

On September 5, 2013, the Internal Revenue Service (“IRS”) released two proposed rules to implement important reporting requirements under the Patient Protection and Affordable Care Act (“ACA”), which will help determine penalties under the Employer Mandate and should be of great importance to hospitality employers.

One rule would require information reporting by insurers, self-insuring employers, and other parties that provide health coverage (“minimum essential coverage”). The other rule would require employers that are subject to the employer mandate to report information to the IRS and employees regarding the minimum essential coverage they offer their full-time employees. There will be public hearings to discuss the rules on November 18 (for the proposed rule on large employer reporting) and 19 (for the proposed rule on minimum essential coverage reporting). Affected entities also have an opportunity to comment, with comments due for both rules on November 8, 2013.

Read the full post here.

A recent article in Bloomberg BNA’s Health Insurance Report will be of interest to retail industry employers: “ACA’s Employer ‘Pay or Play’ Mandate Delayed – What Now for Employers?” by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green’s Washington, DC, office. Following is an excerpt:

The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility” provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their obligations with respect to the shared responsibility rules and implement system changes, oftentimes with imperfect information to guide their efforts to comply with ACA.

Understanding the difficulties that both employers and the health insurance exchanges or marketplaces would have, the Internal Revenue Service (IRS) on July 2 issued a press release stating it would delay the shared responsibility provisions and certain other reporting requirements for one year, until Jan. 1, 2015.

On July 9, the IRS published Notice 2013-45 (Notice), providing additional information on the one-year delay. Specifically, the following three ACA requirements are delayed:

  1. The employer shared responsibility provisions under Section 4980H of the Internal Revenue Code (Code), otherwise known as the employer mandate;
  2. Information reporting requirements under Section 6056 of the Code, which are linked to the employer mandate; and
  3. Information reporting requirements under Section 6055 of the Code, which apply to self-insuring employers, insurers, and certain other providers of ‘‘minimum essential coverage,” as defined by ACA.

The IRS notice clarifies that only the above three requirements are delayed. The notice does not affect the effective date or application of other ACA provisions, such as the premium tax credit or the individual mandate. Given the fact that the law itself is not delayed, the notice has raised significant issues for employers despite their being generally pleased with the mandate and penalty delay. This article will discuss the impact of the delay and some of the issues that employers should consider as a result of the delay.

Click here to download the full article in PDF format.

The attached file is reproduced with permission from Health Insurance Report, 19 HPPR 28, 7/31/13. Copyright © 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

By: Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has now acknowledged the significant regulatory burdens that the January 1, 2014 deadline under the Affordable Care Act would place on employers. Based on reports, the ACA Employer Mandate has been delayed to 2015! We understand that regulatory guidance will be forthcoming this week.

This is welcome news to employers across the country who have been struggling with compliance efforts under the ACA.

Stay tuned to this blog and www.ebglaw.com for additional information.

By Gretchen Harders and Michelle Capezza

On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These employee notices must be provided to existing employees no later than October 1, 2013. This deadline is intended to correspond to the open enrollment period for the Marketplace commencing October 1, 2013 for coverage through the Marketplace beginning January 1, 2014. The Release includes temporary guidance and two model employee notices of the Marketplace upon which employers may rely. The Release further provides an updated model election notice for group health plans for purposes of the continuation coverage provisions under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to include information of the health coverage options offered to individuals through the Marketplace for comparative purposes.

Employee Notice of the Marketplace. The Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) to require employers to issue employees a notice of the health coverage options available under the Marketplace. The FLSA requirement was required to have been satisfied on or before March 1, 2013; however, given the regulatory delays in establishing and approving the Marketplace, the DOL extended the deadline. The guidance under this Release is temporary through the applicability date of October 1, 2013, but may be relied upon until future guidance and regulations are issued.

Which employers are required to comply with the notice requirements?

Whether or not required to “pay or play” under the Affordable Care Act, all employers subject to the FLSA must provide the employee notice. The FLSA generally applies to employers that employ one or more employees and are engaged in or produce goods for interstate commerce. The FLSA also covers, among other things, hospitals, schools, institutions of higher education and federal, state and local government agencies. To determine whether an employer is subject to the FLSA, the DOL provides an internet assistance tool at http://www.dol.gov/elaws/esa/flsa/scope/screen24.asp.

Which employees must receive the notice?

Employers must provide the employee notice to each employee whether or not the employee has part-time or full-time status. It does not matter whether the employee is enrolled or eligible to enroll in a group health plan. A separate notice is not required to dependents or other individuals who may become eligible for coverage under the plan, but are not employees.

What information must the notice provide?

The employee notice must contain the following information:

  • The existence of the Marketplace;
  • The contact information and description of services offered on the Marketplace;
  • A statement that the individual may be eligible for a premium tax credit if the employee purchases a qualified plan on the Marketplace; and
  • A statement that if the employee purchases a qualified plan on the Marketplace, the employee may lose the employer contribution to any health benefit plan offered by the employer and all or a portion of employer contributions may be excluded from federal income.

What are the DOL model notice(s)?

The DOL has provided two model employee notices available on its website, one for employers who do not offer a health plan and one for employers who offer a health plan to some or all employees. The Release provides that employers may use the model notice(s) provided the notice(s) include the information described above.

The model employee notice for employers who do not offer health coverage includes the information described above, as well as an explanation of the impact of the availability of employer health coverage on the employee’s eligibility for subsidies on the Marketplace. The model employee notice does not require the employer to provide specific contact information for the Marketplace in the state where the employee resides, but rather refers the employee to the http://www.healthcare.gov website for contact information for the Marketplace in the employee’s area. This model employee notice requires the employer to provide contact information for the employer, including the employer’s EIN. This is the information an employee will need to include in an application for a premium subsidy on a Marketplace.

The model employee notice for employers who do offer health coverage generally includes the same information as the model employee notice for employers who do not offer health coverage. This model employee notice does, however, require the employer to provide contact information to obtain more information about the employer’s health care coverage. The disclosure requires the employer to state whether the health care coverage is offered to all employees and, if not to all employees, a description of those employees eligible for health care coverage. It also requires the employer to state whether it offers dependent coverage and which dependents are eligible. Finally, the employer is required to disclose whether the health care coverage offered meets the minimum value standard and that the cost of coverage is intended to be affordable. The Department of Treasury and Internal Revenue Service recently issued proposed guidance to assist employees in assessing whether the coverage offered provides minimum value. See our prior blog post New Proposed guidance for Determining Whether Employer-Sponsored Health Plan Provides Minimum Value.

The model employee notice includes optional information that an employer may provide to the employee based on the Marketplace Employer Coverage Tool to better understand their coverage choices, including whether the employee is eligible in the next three months for employer coverage, whether the employer offers a health plan that meets the minimum value standard, the premium for employee-only coverage under the lowest-cost plan that meets the minimum value standard if the employee received the maximum discount for any tobacco cessation program, and what changes the employer will make for the next plan year. Although this information is optional, it may be to an employer’s benefit to demonstrate, where appropriate, that its plan is providing minimum value and is affordable.

When must the employee notice be provided and what are the acceptable delivery methods?

Current employees before October 1, 2013 must be provided with the notice no later than October 1, 2013. Beginning October 1, 2013, the employer must provide each new employee the notice at the time of hire, which will be considered timely provided in 2014 if provided within 14 days of the employee’s start date.

The employee notice must be provided free of charge in writing in a manner calculated to be understood by the average employee. The employee notice may be provided by first class mail or electronically if in accordance with the DOL’s electronic disclosure safe harbor.

COBRA Model Notice. Under COBRA, an individual who was covered by a group health plan the day before a qualifying event occurred may be eligible to elect COBRA continuation coverage. These qualified beneficiaries must be provided with an election notice within 14 day after the plan administrator receives notice of a qualifying event. The COBRA election notice is required to include specific information.

The DOL updated its model COBRA election notice to provide information about the Marketplace for the purposes of informing qualified beneficiaries that they may also be eligible for a premium tax credit to pay for coverage offered through the Marketplace. It also includes clarification on the limit on pre-existing conditions exclusions beginning in 2014. Such information is not specifically required under the Affordable Care Act and should have no impact on whether an employer is subject to the employer responsibility penalties if in fact a former employee obtains coverage on the Marketplace.

The Release provides that the use of the model COBRA election notice completed appropriately will be considered good faith compliance with the COBRA election requirements. The model COBRA election notice does not provide a specific deadline or compliance date. Employers may wish to review their existing COBRA election notices for changes relating to the Affordable Care Act.

Employers have long been waiting for specific guidance from the DOL on the employee notice requirements. Now that it is here, compliance should be addressed well before the October 1, 2013 deadline.

 Tuesday, April 30, 2013

 12:00 p.m. – 1:00 p.m. EDT/ 9:00 a.m. – 10:00 a.m. PDT

To register, please click here.

Please join Epstein Becker Green’s Labor & Employment and Employee Benefits practitioners as they review the Affordable Care Act and its ongoing impact on retail employers and their group health plans and programs.

U.S. government agencies are moving quickly to implement the Affordable Care Act. Rules have been released over the past few months concerning participation in health benefit exchanges; the 90-day waiting period limitation; employer responsibility penalties; discrimination based on pre-existing conditions; and expanded employment-based wellness programs.

This webcast will provide an update on the implementation of the law, including planning for 2014 and beyond, and will focus on how the law will impact retail employers both large and small, and what they should do now to plan for it.

During this program, Epstein Becker Green practitioners will discuss:

• The structure of the law and basic concepts affecting retail employers
• The Affordable Care Act implementation timeline
• Critical employer decision making and planning for 2014
• New developments

Presenting Epstein Becker Green Attorneys:

Michelle Capezza, Member, Employee Benefits
Gretchen Harders, Member, Employee Benefits
Jeffrey M. Landes, Member, Labor and Employment

Registration Is Complimentary and Reservations Are Limited. Don’t Miss This Opportunity!

To register, please click here.

By Greta Ravitsky

I wrote the January 2013 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.

In it, I summarize five actions that employers should consider taking in 2013 as the DOL steps up its audit efforts under the leadership of the reenergized Obama administration,

  1. Assess the Workforce
  2. Choose Whether to “Pay” or to “Play”
  3. Evaluate Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac Tax”
  4. Understand and Be Ready to Comply with New Tax-Related Changes and Requirements
  5. Conduct Self-Audits to Ensure Compliance

The following is an excerpt:

With the U.S. presidential election behind us, it is clear that the Patient Protection and Affordable Care Act (“Affordable Care Act”) is likely here to stay, having survived a U.S. Supreme Court case challenge last June. While affected employers can avoid facing penalties until 2014 for not making health care coverage available to their workforce, the U.S. Department of Labor (“DOL”) has begun auditing employers’ group health plans for compliance with other requirements of the law that are already in effect. As the DOL steps up its audit efforts under the leadership of the reenergized Obama administration, below are five actions that employers should consider taking in 2013.

Read the full version on EBGlaw.com.