Looking for a Guaranteed Income Stream for Life? Think Annuities

Are you headed toward retirement or even in retirement and concerned about outliving your savings? Perhaps an income annuity will fit your needs. An annuity is a financial instrument that can offer a guaranteed lifetime income that you can’t outlive.

I’ve spent many years helping my clients with annuities as part of their broader financial plan. So here’s a very high-level understanding of some options.

Fixed income annuities are offered with a number of payment options, allowing you to structure payouts according to your financial goals and objectives. Consider these four income streams:

Joint life: This option provides income for two people, as long as either person is alive. When one person passes away, payments continue to the survivor.

Period certain only: This allows you to target how long you need an income stream. If you were to pass away before the end of the certain period, the remaining payments would continue to the person you designate as your beneficiary, meaning the person you want to receive the money.

Life with a period certain: In this scenario, the annuity pays out income for your lifetime. If you were to pass away prior to the end of the certain period elected, your beneficiary receives the remaining payments.

Life only: This is the least-commonly selected payout. When you die, payments cease—no matter what. This can be risky, but the upside is this option provides the highest payouts.

My mother-in-law, now deceased, used a joint life immediate annuity to generate a lifetime income, using the proceeds from the sale of her home. Now my wife, as her beneficiary, is receiving an income stream for the balance of her life from this same annuity policy.

A guaranteed lifetime income, one you cannot outlive, provides peace of mind. Should this be part of your financial plan? Ask your agent or advisor to see if it fits your needs.

by Marvin Feldman
Originally posted on LifeHappens.org

DOL Issues Final Regulations Regarding Association Health Plans

On June 19, 2018, the U.S. Department of Labor (DOL) published Frequently Asked Questions About Association Health Plans (AHPs) and issued a final rule that broadens the definition of "employer" and the provisions under which an employer group or association may be treated as an "employer" sponsor of a single multiple-employer employee welfare benefit plan and group health plan under Title I of the Employee Retirement Income Security Act (ERISA).

The final rule is intended to facilitate adoption and administration of AHPs and expand health coverage access to employees of small employers and certain self-employed individuals. Generally, it does this in four main ways:

  • It relaxes the requirement that group or association members share a common interest, as long as they operate in a common geographic area.

  • It confirms that groups or associations whose members operate in the same trade, industry, line of business, or profession can sponsor AHPs, regardless of geographic distribution.

  • It clarifies the existing requirement that groups or associations sponsoring AHPs must have at least one substantial business purpose unrelated to providing health coverage or other employee benefits.

  • It permits AHPs that meet the final rule's new requirements to enroll working owners who do not have employees.

The final rule was effective on August 20, 2018.

The final rule applied to fully-insured AHPs on September 1, 2018, to existing self-insured AHPs on January 1, 2019, and to new self-insured AHPs formed under this final rule on April 1, 2019.

The DOL used a staggered approach to implement this final rule so states and state insurance regulators would have time to tailor their regulations to the final rule and address a range of oversight and compliance assistance issues, especially concerns about self-insured AHPs' vulnerability to financial mismanagement and abuse.

On March 28, 2019, the U.S. District Court for the District of Columbia (Court) found that the DOL's final rule exceeded the statutory authority delegated by Congress under ERISA and that the final rule unlawfully expands ERISA's scope. In particular, the Court found the final rule's provisions – defining "employer" to include associations of disparate employers and expanding membership in these associations to include working owners without employees – are unlawful and must be set aside.

The Court's order vacates the specific provisions of the DOL's final rule regarding "bona fide group or association of employers," "commonality of interest," and "dual treatment of working owners as employers and employees." The Court order sends the final rule back to the DOL to consider how the final rule's severability provision affects the final rule's remaining portions.

The Court's order does not affect employers who formed AHPs under the DOL's previous guidance regarding the definition of "employer." Both existing and new employer groups or associations that meet the DOL's pre-rule guidance can continue to sponsor an AHP.

This order stops employers from sponsoring new self-insured AHPs under the final rule beginning on April 1, 2019.

For an employer that relies on the final rule's expanded definition of "employer" to currently sponsor a fully-insured AHP or existing self-insured AHP, the employer should consult with its attorney as soon as possible. If the employer can meet the DOL's pre-rule guidance, then it can continue to sponsor an AHP.

However, if the employer cannot meet the DOL's pre-rule guidance, then the employer should consult with its attorney to determine whether it can amend its structure and plan document to meet the DOL's pre-rule guidance. If it cannot meet the DOL's pre-rule guidance through plan amendment, then the employer should consult with its attorny on how to proceed because the AHP will no longer qualify as an ERISA plan and may be subject to the ACA's individual market and small group market rule as well as state regulation.

Although the DOL issued Questions and Answers after the Court's decision, the DOL has not indicated how it will proceed. The DOL could revise its final rule or could appeal the decision and request that the Court stay its decision pending the appeal. Employers in AHPs should keep apprised of future developments in this case.

Read the full Advisor

 

Credits:
United Benefit Advisors

California Employment Law Update — March 2019

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Updated Poster and Handbook Policy

Effective April 1, 2019, per Cal. Code Regs. tit. 2 § 11095, both of the following are required (as applicable):

  • Every employer covered by the California Family Rights Act (CFRA) and/or New Parent Leave Act (NPLA) is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the provisions of both acts and providing information concerning the procedures for filing complaints of violations of the acts with the California Department of Fair Employment and Housing (DFEH).

  • If the employer publishes an employee handbook that describes other kinds of personal or disability leaves available to its employees, the employer must include a description of CFRA and/or NPLA leave in the next published edition of its handbook following adoption of these regulations. The employer may include both pregnancy disability leave and CFRA and/or NPLA leave requirements in a single notice.

The DFEH has not released a poster with the updated language that incorporates the NPLA; however, it is detailed in the regulation.

Read the code

Senate Bill Introduced to Clarify Sexual Harassment Training Requirements

On February 26, 2019, the California Senate introduced legislation (S.B. 778) regarding the sexual harassment training requirements under the California Fair Employment and Housing Act (FEHA). The bill was introduced due to confusion about training and retraining in context of the compliance dates.

Under existing law and by January 1, 2020, employers with five or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, and at least one hour of the same to all nonsupervisory employees in California within six months of their assumption of a position. Existing law also specifies that an employer that has provided this training to an employee after January 1, 2019, is not required to provide sexual harassment training and education by the January 1, 2020, deadline.

Senate Bill 778 specifies that an employer who has provided this training and education to an employee after January 1, 2018, is not required to do so again until after December 31, 2020. The bill would also require a “refresher training” to each employee once every two years and make other related changes to those provisions requiring sexual harassment training.

Importantly, this bill has only been introduced and may be acted upon on or after March 29, 2019, as stated in the “history actions” (a chronological list of actions taken on the bill).

When viewing the bill on the legislature’s website (which is updated as the bill progresses):

  • Select the “status” tab to review the bill status, type of measure, and the last five history actions.

  • Select the “compare versions” tab to review the specific changes to the law introduced by S.B. 778.

Read CA S.B. 778

The Risks are Real

Even when you proactively anticipate all the people risks that have the potential to impact your workplace, it’s easy to convince yourself there is no risk to youthat it will never happen here.

You may think no one at your workplace will harass anyone, no one will sue you over an honest mistake made in administering workers’ comp, no one will accidentally cause a data breach, or no one will ever bring a weapon to the office. You might think managing people risk is extremely time consuming and not worth the effort. Rationalizations like this may lead you to believe you don’t need to do anything to prevent these risks.

However, these risks are very real and can happen anywhere, at any time. It’s imperative you cover all of your bases, and it’s actually very straightforward, especially if you have a partner on your side.

Ideally, you will integrate people risk management (PRM) with your business practices so it’s not something extra to do; it’s a way of doing things you already do. PRM can be a lens through which you look through when evaluating your policies, procedures, and other aspects of how you run your company.

Acknowledging and Preventing Risk: A Four-Step Plan

When you are anticipating risk, you are thinking about what might happen. Then you need to look at what you should do when something actually happens and it’s time to acknowledge the risk.

Maybe a law passes or regulation is finalized, you realize your pay policies are not in compliance with the law, or an employee informs you they have been prescribed medical marijuana but you have a very strict drug use policy. What tools to do you have to deal with that?

Once you acknowledge the risks inherent in these issues, there are four steps to putting a plan of action into place to prevent the risks from causing damage to your company’s bottom line, its reputation, or to its level of employee engagement:

  1. Understand when and how the risk will impact you. If it’s a law or regulation, when does it go into effect? Is it an ongoing issue or something that can be addressed and then set aside? What are the potential penalties or pitfalls presented by the risk?

  2. Determine the best course of action. Does the situation require simple changes to operations or a more complicated approach? Where do changes need to be implemented — in handbook policy updates, procedural documentation, or new training programs?

  3. Craft communication strategies around the risk. Who needs to know what, and how much information should be given to people at each level? What information should be held back to preserve confidentiality? What information is only relevant to a handful of people (such as when an OSHA report is due) and what information is relevant to everyone (such as who needs sexual harassment training in your state)?

  4. Decide what change management activities are required to get buy-in. It’s one thing to decide to do something but getting people ready to embrace the change is another thing. If change management is good, then the changes will take hold, the implementation will be smooth, and the risks will be lower.

by Larry Dunivan, CEO ThinkHR
Originally posted on ThinkHR.com

IRS Releases Information Letter on Returning HSA Contributions to an Employer

Generally, a person’s interest in a Health Savings Account (HSA) is nonforfeitable. However, in the past, the Internal Revenue Service’s Notice 2008-59 described limited circumstances under which an employer may recoup contributions made to an employee’s HSA.

The Internal Revenue Service (IRS) recently released Information Letter 2019-0033 (Letter), clarifying that IRS Notice 2008-59 was not intended to provide an exclusive set of circumstances in which an employer can recoup contributions made to an HSA. If there is clear evidence of an administrative or process error, an employer may request that the contributions it made to an employee’s HSA be returned. This correction should put the employer and employee in the same position that they would have been in if the error had not occurred. 

The Letter lists the following examples of when an employer may recoup HSA contributions:

  • An amount withheld and deposited in an employee’s HSA for a pay period is greater than the amount shown on the employee’s HSA salary reduction election.

  • An employee receives an employer contribution that the employer did not intend to contribute but the amount was transmitted because an incorrect spreadsheet is accessed or because employees with similar names are confused with each other.

  • An employee receives an incorrect HSA contribution because it is incorrectly entered by a payroll administrator (whether in-house or third-party) causing the incorrect amount to be withheld and contributed.

  • An employee receives a second HSA contribution because duplicate payroll files are transmitted.

  • An employee receives as an incorrect HSA contribution because a change in employee payroll elections is not processed timely so that amounts withheld and contributed are greater than (or less than) the employee elected.

  • An employee receives an incorrect HSA contribution because an HSA contribution amount is calculated incorrectly, such as a case in which an employee elects a total amount for the year that is allocated by the system over an incorrect number of pay periods.

  • An employee receives an incorrect HSA contribution because the decimal position is set incorrectly resulting in a contribution greater than intended.

Originally posted on UBABenefits.com

Legislative Cleanup: California Senate Attempts to Clear Up S.B. 1343 Sexual Harassment Training Confusion | California Benefits Agency

On February 26, 2019, California Senate Bill 778 was introduced to clear up confusion about when employers are required to provide employees with sexual harassment prevention training and education under the California Fair Employment and Housing Act (as amended by Senate Bill 1343) and when retraining is required. Read about S.B. 1343 in our blog.

What is the Law Now?

As the law reads now, an employer with five or more employees must provide classroom or other effective interactive training and education regarding sexual harassment prevention (at least two hours to all supervisory employees and at least one hour to all nonsupervisory employees in California) within six months of an employee’s assumption of a position. Current law also states that employers who have provided this training to employees after January 1, 2019, are not required to provide sexual harassment training and education by the January 1, 2020 deadline.

What are the Proposed Changes?

Senate Bill 778 only changes about three sentences in the law, but these small changes will carry significant weight if the bill passes as predicted. Here are some of the key portions of the FEHA, at Cal. Govt. Code § 12950.1, that would be amended (current law in regular type, new law in italics, removed law in bold) by 778:

“By January 1, 2020, an employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. position, and thereafter refresher training to each employee once every two years. An employer may provide this training in conjunction with other training provided to the employees. The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met. An employer who has provided this training and education to an employee after January 1, 2019, 2018, is not required to provide refresher training and education by the January 1, 2020, deadline. After January 1, 2020, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. until after December 31, 2020.”

If enacted as written, this would mean the following for covered employers under S.B. 778:

  • After providing the mandatory training and education, employers must provide a “refresher training” for each employee once every two years; and

  • If an employer provided sexual harassment prevention training and education to employees after January 1, 2018, then they are not required to do so again until after December 31, 2020.

Of note, the bill does not provide a description of a “refresher training.”

If enacted, S.B. 778 clarifies the issue of whether employees need to be retrained even if they were trained in 2018. The answer is no.

Just to rephrase, under the terms introduced by S.B. 778:

  • Training must be provided to employees by January 1, 2020;

  • Thereafter, refresher training must be provided to each employee once every two years; and

  • If an employer provided training in 2018, then it would not need to retrain in 2019 but rather, refresher training and education would not be required to be provided until after December 31, 2020.

How Does This Impact My Workplace?

Right now, S.B. 778 has zero impact on your workplace. Is the bill interesting? Yes! Does it change anything today? No! That is because the bill has merely been introduced and is not an enacted law.

Additionally, the history of actions on the bill (viewable on this page) states that it may be acted upon on or after March 29, 2019.

What Now?

Experts predict this bill will move to enactment without modification. So if it is enacted, then your workplace could be directly impacted.

But don’t forget, California AB 1825 training is still required on a two year cycle! So as always, in implementing a best practice approach, employers that did not provide sexual harassment prevention training for their supervisory employees in 2018 (because their two-year cycle hit in 2019) must ensure the AB 1825 training is met this year.

Moreover, we recommend that employers provide non-supervisory employees with the sexual harassment prevention training and education as required under S.B. 1343. The intent of S.B. 778 is to clarify timelines, not circumvent or deviate from training. Moreover, the spirit of the law remains the same, to ensure that employers provide ALL employees with the necessary education and training to function and conduct themselves in a workplace that is free from sexual harassment.

by Samantha Yurman
Originally posted on ThinkHR.com

The Right Information at the Right Time | California Benefits Partners

We are all drinking from a firehose of news and information — all day, every day. With this deluge of information, it can be difficult to determine what’s truly important to know. But being reactive is not acceptable. You need to know what’s coming, what affects you, and how it affects you.

Take, for example, legislative changes — 80 percent don’t require your attention, but the 20 percent you need to act on can easily get lost in the noise. It’s the 20 percent that expose your business to risk, but how do you know which 80 percent of information you can safely ignore?

Paying attention to the right information at the right time and setting the rest aside – knowing what you need to know – is essential to anticipating and understanding risk.

Where People Risk Management Comes In

People risk management starts with anticipating and understanding what presents risks to your business. It’s the idea you can look at something, understand it, digest it, and know if and how you need to act on this information. It’s a complicated sequence that no one has time to do, which is why you need a trusted and knowledgeable partner who:

  1. Knows what’s in the pipeline, such as newly-introduced bills that have the potential to become law.

  2. Keeps an eye on at what’s actually happening that may affect employers, such as when bills pass, agencies issue directives, or courts rule on cases.

  3. Determines what presents any type of risk to employers – such as litigation, noncompliance, or reduced employee engagement – and what doesn’t require action.

  4. Communicates promptly, consistently, and effectively, so you can use this knowledge to update your policies, stay on top of compliance requirements, and incorporate best practices in a way that reduces risk for your unique business.

Understanding People Risks: An Example

Often, when we think about risks to employers, we focus on insurable risks because they are well understood and easily quantifiable. It’s important to address these risks with solid prevention plans and insurance products, but it’s the uninsurable categories of risks, particularly people risks, that can catch us off guard and unprepared.

People risks can result not just in financial loss, but damage to employee engagement and company culture. They tend to be more subject to interpretation and can be very abstract.

Take, for example, the consequences of hiring the wrong employee or losing a valued employee. When this happens, you bear the cost of lost productivity and the time and money invested in recruiting, hiring, and onboarding. You also risk litigation if policies are not adequately documented, communicated, and followed should the employee claim discrimination, harassment, or disability accommodation is to blame for their separation from the company.

Hiring the wrong employee or losing a valued employee also carries the risk of negatively affecting employee engagement, which is a well-documented predictor of business outcomes. If it happens regularly, or there is even one instance handled poorly, your employment brand can be tarnished. For example, it could result in bad reviews on recruiting sites, chipping away at your recognition as an employer of choice.

by Larry Dunivan
Originally posted on ThinkHR.com

IRS Releases 2019 Inflation-Adjusted Limits | California Benefits Agents

The Internal Revenue Service (IRS) released its inflation-adjusted limits for various benefits. For example, the maximum contribution limit to health flexible spending arrangements (FSAs) will be $2,700 in 2019. Also, the maximum reimbursement limit in 2019 for Qualified Small Employer Health Reimbursement Arrangements will be $5,150 for single coverage and $10,450 for family coverage.

Read more about the 2019 limits.

By Karen Hsu
Originally posted on UBABenefits.com

Ask the Experts: Coordinating Health Benefits with Military Coverage

Question: We recently hired an employee who has health coverage through the military (TRICARE). Our company provides a group major medical plan along with a health reimbursement arrangement (HRA). How will our benefits coordinate with TRICARE?

Answer: TRICARE offers several different health service and coverage programs. For active-duty servicemembers (ADSMs), TRICARE Prime is their primary and only health coverage. There are some differences in TRICARE Prime depending on where the ADSM is stationed, so personnel are advised to review their TRICARE Prime booklet and/or consult with a TRICARE coordinator for details.

Next, for dependents of ADSMs, and retired military and their dependents, any employer-sponsored health coverage is the primary coverage. That means that the employer’s group plan must pay its regular benefits without regard to any possible TRICARE coverage. It appears your new employee is a retired servicemember, so your company’s major medical plan will pay its benefits first, then any available HRA funds may be used to reimburse deductibles or out-of-pocket expenses. Finally, if the employee still has unreimbursed expenses, he may file a claim with TRICARE for possible consideration.

Note that TRICARE also is secondary to Medicare, so if the employee or dependent has both group coverage and Medicare, TRICARE will be the last in line.

Lastly, TRICARE beneficiaries are instructed to inform the TRICARE contractor of all other coverage they have by completing the “other health insurance questionnaire” posted on the TRICARE website. Since TRICARE is always the secondary payer (except from active-duty servicemembers), the TRICARE contractor will not administer claims without first having information about the individual’s other coverage sources.


by Kathleen Berger
Originally posted on ThinkHR.com

California Sexual Harassment Training Update | CA Employee Benefits Advisors

In October 2018, California Governor Jerry Brown signed Senate Bill 1343 modifying the California Fair Employment and Housing Act (FEHA) sexual harassment training requirements. 

Since that time, the California Department of Fair Employment and Housing (DFEH) has provided the following resources:

At the end of 2018, the DFEH released Sexual Harassment and Abusive Conduct Prevention Training Information for Employers answering frequently asked questions in anticipation of employer compliance inquiries, including these two that offer clarification:

Q. By what date must employees be trained? A. Both managerial and non-managerial employees must receive training by January 1, 2020. After January 1, 2020, employees must be retrained once every two years. That means that all employees statewide must be retrained by January 1, 2022.

Q. What if my employees were trained between January 1 and December 31, 2018? A. The law requires that employees be trained during calendar year 2019. Employees who were trained in 2018 or before will need to be retrained.

What does this all mean? Essentially, everyone needs to be trained, retrained, and then some. California lawmakers are clearly, emphatically, yelling on their tiptoes from the top of Mount Whitney about the importance of sexual harassment training and prevention in the workplace.

by Samantha Yurman
Originally posted on ThinkHR.com

Government Shutdown Update: EEOC Closed | California Employee Benefits Agency

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The U.S. Equal Employment Opportunity Commission (EEOC) announced that it is closed because of the federal government shutdown. During this period of federal closure, a limited number of EEOC services are available. Staff will not be available to answer questions from the public or to respond to correspondence from the public. The EEOC will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown; however, these charges will not be investigated. The EEOC will not litigate in the federal courts, no Freedom of Information Act requests will be processed, and the following will be cancelled:

  • Mediations.

  • Federal sector hearings.

  • Decisions on federal employees’ appeals of discrimination complaints.

  • Outreach and education events.

Moreover, all EEOC digital portals will be closed and will not be accessible to the public. It is unclear how the shutdown will impact the opening date for the 2018 EEO-1 filing website; however, experts anticipate a delay in its availability and that the expected March 31, 2019, deadline for 2018 EEO-1 filings will be extended. ThinkHR will continue to monitor EEOC announcements that affect employers.

Read the announcement and contingency plan

 

Originally posted on ThinkHR.com

Managing the Intersection of Workers’ Compensation with Other Leave Regulations | Cupertino Insurance Partners

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You’re ready when the call comes in. Your client’s employee was seriously injured on the job. You reassure the client that your team has them covered, and you outline their workers’ compensation policy provisions, administrative claim filing process, and accident site investigation protocols.

You check in later in the week. As a result of the accident site investigation, the employer’s worksite processes are updated, equipment is modified, and employees are being trained to prevent future accidents like this one. Employee training records are updated, the OSHA injury/illness logs are completed, and the safety team is monitoring the new processes and systems.

The employee is not back to work, but is progressing well with medical treatment and is receiving wage replacement provided by the policy. Everything is well documented so that the client is ready in the event of an OSHA or state safety audit/inspection.

The client appreciates the extra service and professional advice you’ve given to make the best of the unfortunate accident. You’re satisfied that this situation is under control and make a note to follow up with them in the next few weeks. Your job on this claim is done … or is it?

Important Leave Details Cannot be Overlooked

Your goal is to advise your clients of all risks affecting their business, and it’s likely you haven’t spent much time thinking about the impact of uninsurable HR-related business risks or opportunities to mitigate them. In this situation with an injured worker, there are other employment laws and benefits considerations besides state workers’ compensation rules that your client should factor in when managing time off and return to work.

Although workers’ compensation eligibility, coverage, and benefits rules vary from state to state, most employees are covered when the occurrence is job-related. Depending upon the employer size and type of injury or illness suffered by the employee, the employee also may be entitled to medical and/or disability-related protections under two federal laws: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). To make things even more complicated, some states have enacted their own disability and family and medical leave laws, some of which provide greater amounts of leave and benefits than the federal rules. Failure to look at the entire situation and take these laws into consideration can prove costly to your client.

Counsel your client to consider the following:

  • If the employee has a serious health situation requiring time off the job, then FMLA may apply.

  • If the employee is disabled, the ADA may apply.

The bottom line is that when employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all of these laws at the same (or different) times for the same illness or injury. Each situation needs to be reviewed very carefully, so that the right amounts of time off to manage the condition are provided, and that benefits, compensation, notifications, and other protections are managed.

Avoidable Mistake #1

The most common mistake that employers make with work-related employee injuries/illnesses: Not considering and/or designating FMLA leave concurrently with a workers’ compensation claim. This can result in legal claims for failure to provide benefits, as well as additional costs to the business.

For the claim you just handled, let’s say that the injured employee is off work on temporary total disability for 16 weeks. His doctor then releases him to return to light-duty work, and your client offers him a light-duty job. If they had not properly designated that employee’s time off as FMLA leave, the employee may be able to reject the offer of light-duty work and then be entitled to up to 12 additional weeks of unpaid FMLA leave. Additionally, your client would also be required to keep the employee on their health insurance through those 12 additional weeks of unpaid leave and return him to his former job when he finally returns to full-duty work.

If the client had designated the leave concurrently at the time of the injury, the FMLA job and benefits protections would terminate after the first 12 weeks, while the employee was still on temporary total disability. The employee would then have four more weeks of workers compensation temporary disability, without FMLA protections for additional time off or benefits continuation beyond the wage replacement and benefits provided under workers compensation.

Here’s why: FMLA is a federal law that provides employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition due to a work-related injury or illness. FMLA applies to:

  • Private employers with 50 or more employees working within 75 miles of the employee’s worksite; and

  • All public agencies and private and public elementary and secondary schools, regardless of the number of employees.

Employees are eligible to take FMLA leave if they have:

  • Worked for their employer for at least 12 months;

  • Worked for at least 1,250 hours over the 12 months immediately prior to the leave; and

  • There are at least 50 employees working within 75 miles of the employee’s worksite.

Note: The 12 months of employment do not need to be consecutive, which means that any time previously worked for the same employer can be used to meet the requirement unless the break in service lasted seven years or more. Some exceptions apply.

Within the context of a work-related injury or illness, the most common serious health conditions that qualify for FMLA leave are:

  • Conditions requiring an overnight stay in a hospital or other medical care facility; and

  • Conditions that incapacitate the employee for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a healthcare provider, or a single appointment and follow-up care such as prescription medication).

Generally, basic first aid and routine medical care are not included unless hospitalization or other complications arise.

Employers must also consider compliance with state “mini-FMLA” laws that cover an employee’s serious health condition. California, Connecticut, Maine, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia have enacted medical leave laws impacting private employers. Massachusetts medical leave law provides for leave benefits beginning January 2021, with proposed regulations to be published in March 2019. Other states are considering similar laws.

Avoidable Mistake #2

The second common mistake that employers make with work-related employee injuries/illnesses: Not considering the ADA requirements for entering into an interactive process for reasonably accommodating an employee’s return to work.

The ADA is a federal law that prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. Title I of the ADA applies to employers (including state or local governments) with 15 or more employees and to employment agencies, labor organizations, and joint labor-management committees with any number of employees.

The ADA protects individuals with a disability who are qualified for the job, meaning they have the skills and qualifications to carry out the essential functions of the job, with or without accommodations. An individual with a disability is defined as a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;

  • Has a record of such an impairment; or

  • Is regarded as having such an impairment.

The ADA does not set out an exhaustive list of conditions covered by the law, making it more difficult for employers to determine with certainty what conditions actually are considered a disability. These conditions require medical interpretation of the severity of the condition by the employee’s healthcare provider, and it is always a best practice to work with medical and legal experts when in doubt. A good rule of thumb to use in reviewing ADA issues is to look at the medical condition in its entirety. Generally, conditions that last for only a few days or weeks and are not substantially limiting with no long-term effect on an individual’s health — such as basic first aid, broken bones, and sprains — are not considered disabilities under the Act.

The ADA does not specifically require employers to provide medical or disability-related leave. However, it does require employers to make reasonable accommodations for qualified employees with disabilities if necessary to perform essential job functions or to benefit from the same opportunities and rights afforded employees without disabilities. Accommodations can include modifications to work schedules, such as leave. There is no set leave period mandated because accommodations depend on individual circumstances and should generally be granted unless doing so would result in “undue hardship” to the employer.

One of the most common questions — and one of the most difficult to answer — is the definition of what is considered a reasonable accommodation.

In the real world, the definition of what is a reasonable accommodation varies and is based on several factors. Examples include: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; or reassignment to a vacant position. Determining what is reasonable and does not cause undue hardship to the business can be difficult, so be sure to consult with experts and provide documentation regarding why an accommodation would be unreasonable for the business.

The Department of Labor (DOL) suggests that every request for reasonable accommodation under the ADA should be evaluated separately to determine if it would impose an undue hardship, taking into account:

  • The nature and cost of the accommodation needed;

  • The overall financial resources of the company, the number of employees, and the effect on expenses and resources of the business; and

  • The overall impact of the accommodation on the business.

There are two issues that arise with returns to work that are risky for employers: (1) 100 percent healed policies and (2) light-duty rules.

Regarding 100 percent healed policies, employers cannot require an employee to be completely healed before returning to work because those rules violate the ADA’s requirements to allow workers to use their right to an accommodation. Even if the employee is not 100 percent healed, he or she could possibly still work effectively with an accommodation.

Employers may create light-duty positions as a reasonable accommodation under the ADA or as part of the return-to-work plan from workers compensation. The goal is to get employees back to work at 100 percent of the productivity that they had before the injury, and there are times when a light-duty position might be the next step, with lighter physical requirements and reduced productivity expectations.

Caution your clients to design the light-duty position to meet the physical requirements of the partially healed worker, so that there will be no physical reason for the employee to refuse the light-duty position.

Under most workers compensation plans, an employee’s refusal to return to work in a light-duty position that meets his or her medical restrictions can result in termination of workers compensation benefits. Additionally, the ADA does not allow an employee to refuse work that meets the physical requirements of the accommodation.

Without that careful look at the duties of the position as they pertain to the employee’s medical needs, however, the employee can refuse the position and continue to collect benefits until he or she is able to perform the requirements of the position.

Steps for Success

While these laws have different goals, medical circumstances create overlaps between them. It is important to understand the rules and benefits in order to manage them correctly and avoid the risk of legal challenges and more expensive or longer leaves.

Advise your clients to:

  • Designate FMLA leave for eligible employees concurrently with the workers compensation claim.

  • Keep in touch with injured or ill employees throughout their leave.

  • Manage pay and benefits according to each situation.

  • Carefully evaluate requests for intermittent time off, light duty, or other modified work.

  • Consult with your legal advisors and insurance carriers regarding special situations.

  • Handle returns to work and reinstatement of benefits in accordance with the laws.

 

by Laura Kerekes
Originally posted on ThinkHR.com

Ask the Experts: Federal Survey of Employer Health Plans | Cupertino Insurance Consultants

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Question: Our company received a survey from the U.S. Census Bureau asking about the health coverage we offer to employees, how much it costs, etc. Is this an official survey? Do we have to provide the information?

Answer: It appears your company has been randomly selected for the federal government’s Medical Expenditure Panel Survey (MEPS). Here is a sample of the 2018 survey.

The U.S. Census Bureau conducts a variety of studies on different schedules. The most widely known one is the once-a-decade census of the entire U.S. population, but the Bureau also conducts surveys every year of randomly-selected individuals and businesses on different topics. It has used the MEPS for several years to collect data on health insurance spending, the availability of employer-provided coverage, costs paid by employers and workers, and to study trends over time. Policy makers and health care researchers use the data in aggregate form, while each participant’s data is kept confidential.

It is your choice whether to respond to the MEPS. There is no penalty if you do not answer some of the questions or if you decide not to return the survey at all. Your participation is entirely voluntary.

To learn more about the MEPS, see the FAQs that the Census Bureau has prepared for businesses.

 

by Kathleen Berger
Originally posted on ThinkHR.com

7 Ways to Have Self-Control, Even in the Hardest Situations | California Benefits Advisors

What would change if you had more self-control? Would you meet your fitness goals? De-escalate tense situations? Finally stop procrastinating on work projects? Although it can seem impossible to gain any more discipline than you already have, willpower can be exercised regularly just like your muscles. There are a few ways you can gain control when you really need it. When it comes to eating, exercise, anger and more, here are some common "tempting" scenarious followed by tips on how to strengthen your resolve.

1. Resisting Junk Food

From the grocery store to fast-food ads, one thing is for sure: Junk food is everywhere. Overcome the temptations of unhealthy foods by changing your self-talk. First, stop thinking, “I can’t eat this” (something unhealthy), and replace it with, “I can eat that” (something healthy), says Kelly Milligan, naturopath and chef. It removes the restrictive feeling and allows for a more stress-free, positive mindset.

Second, think past the immediate craving and ask yourself, “How will I feel after eating this? Will this help me get closer to my goals?” This way you are changing your approach from arbitrarily labeling foods as “good” or “bad” to focusing on the value certain foods have for your body.

2. Motivating Yourself to Hit the Gym

One way to stay on the path of exercising regularly is simply putting on your workout clothes! A 2012 study published in the Journal of Experimental Social Psychology found that this can give you the motivation you need to get moving. Still not feeling it? Tell yourself you’ll just work out for five to 10 minutes. You’ll be surprised what you’ll feel like doing once you get started.

And remind yourself why you started. Whether your goal is to gain strength, lose weight, recover from an injury or get healthier, each goal is tied to a specific emotion. Dig deep and envision what it would be like if your goal was met today. Bonus: Exercise can strengthen your willpower in other areas of your life!

3. Stopping the Late-Night Munchies

When straight-up willpower isn’t enough to stop yourself from eating an entire bag of chips before bed (or overeating in general), creating new habits is the way. First things first: Keep yourself fueled throughout the day so you’re not “starving” in the evening.

Then find a distraction from your thoughts of food: talk with a friend, stretch or read. Or try brushing your teeth. You won’t want to eat if your mouth is minty fresh. If you're truly hungry, try a pice of fruit. The American Psychological Association states that glucose (like that found in fruit) is fuel for the brain and that acts of self-control reduce blood glucose levels.

4. Controlling Angry Outbursts

Anger is natural. But it’s what you do with that emotion that matters. It all begins with thinking before you speak or act. Ask yourself if what you're about to say is going to make the situation better or worse. Or take a timeout. You can use the age-old trick of counting to 10 before you speak. It allows your mind to get some emotional distance and lets your brain focus on something else.

If you still feel amped up, try exercising. According to stress physiologist Nathaniel Thom in an article for Psychology Today, exercise can help diffuse the buildup of anger. Exercise gets the feel-good hormones elevated in your brain and presents a calming feeling over your body. After you’ve calmed down, you can find solutions and present your feelings in an unagitated state.

5. Refraining From Hitting Snooze

The snooze button is no friend of self-control. Mel Robbins, author of “The 5 Second Rule,” says in her book that how you wake up and spend the first 30 minutes of the morning determines the productivity of your day. It starts with getting up, waking up and being present in everything you do, Mel says. (In other words, put down your phone!)

According to Robbins, if you have an impulse to act on a goal, you must physically move within five seconds or your brain will kill the idea. So within five seconds of your alarm sounding, spring up and out of bed! Immediately after, begin to think of the positive things this extra morning time will add to your day. Before you know it, you’ll have set the tone for the entire day!

6. Curtailing Frivolous Spending

If you feel you need more control in the spending department, writing down each and every thing you purchase is a great way to see exactly how much is going out and where. At the end of each month, go through your list and see what spending was a “need” and what spending was a “want,” says Paula Pant, money-management expert and creator of AffordAnything.com. Add up the total amount of the “wants” and imagine that money saved up for an emergency fund or a memorable family vacation. This will also allow you to see other not-so-good habits you may have, such as buying junk food or always ordering lunch at work.

7. Actually Accomplishing Your Goals

Set your goals on a vision board where you’ll see them every day. This can be hanging on the wall next to your television or placed by the door of your home so you’ll always have a visual reminder of what your goals are. Read them out loud, and tell yourself you can do this — because you can.

Another way to ensure success is to keep it simple in all areas. If it’s too overwhelming, then you’ll be overwhelmed. Have the mindset of working in baby steps, and celebrate each day that you succeed. With self-control comes the feeling of accomplishment. With accomplishment comes self-confidence. And this cycle helps you keep meeting your goals.

**BONUS** Build Self-Control With Sleep

Another easy way to gain more self-control in any area of your life is to get adequate sleep. A 2011 study published in Organizational Behavior and Human Decision Processes found that a sleep-deprived individual is at increased risk for succumbing to impulsive desires, inattentiveness and questionable decision-making. Basically, it’s much easier to make the right choices when our brains are rested and recharged. (Which you probably know from experience!)

by SJ McShane
Originally posted on LiveStrong.com

Ask the Experts: FMLA Leave and Attendance Incentives | Cupertino Benefits Advisors

Question: We give year-end bonuses based on attendance, and employees with a certain number of absences are disqualified. If an employee took FMLA leave, can we count those absences against them and withhold the attendance bonus?

Answer: Yes, if you apply the rubric used to qualify employees for the bonus consistently across all “equivalent leave status” reasons for absence. For example, if you count days off for vacation, paid time off, jury duty, or military leave as absences for the purpose of determining who receives the bonus, you can also count days taken under Family and Medical Leave Act (FMLA) leave.

The same answer applies to bonuses earned for other goals that may be impacted by FMLA leave, such as sales targets or total numbers of hours worked.

If a bonus or raise is not tied to a specific condition, but rather is a cost of living or annual increase provided by all employees, an employee may not be disqualified on the basis of having taken FMLA leave.

 

Originally posted on ThinkHR.com

Workplace Wellness | CA Insurance Agency

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Picture this: You are sitting at your desk at 3pm and you realize you haven’t gotten up from your chair all day. You look around and see that you’ve been snacking instead of eating a lunch. You have read the same sentence 4 times and still can’t figure out what it means. Your back hurts, your eyes feel dry, and you feel kind of blah. You, my friend, are a victim of the sedentary lifestyle in America. How can we combat this lack of energy and inattentiveness in our workplace? By adopting healthy workplace initiatives, you will reap the benefits of a more engaged workforce and a healthier environment.

 

What’s the problem?

·      The average worker sits 7.5 hours at a desk every day

·      Add in couch time, sitting to eat meals, commute, and sleeping, and it could mean that the average adult is only active for 3 hours in a 24-hour period

·      Prolonged sitting is directly related to higher risk of heart disease, weight gain, and diabetes

·      Poor posture can lead to chronic health issues such as arthritis and bursitis

·      Staring at computer screens for long amounts of time lead to higher instances of headaches and migraines

 

What’s the solution?

·      Healthy snack options in vending machines—SnackNation and Nature Box have healthy snack delivery services for offices of all kinds and sizes.

·      Fitness challenges—Encourage different office-wide challenges to promote a more active lifestyle.

o   Incentives for most consecutive gym check-ins

o   Step contests using fitness trackers such as FitBit, Pebble, and AppleWatch

o   Bike or Walk to Work Days

·      Standing desks—Companies such as Varidesk make standing desks or sit/stand desks that lower and raise so that you vary your position during the day

o   Reduces back pain

o   Burns more calories during the day

o   Increases energy

o   Some insurance companies will cover all or portion of the cost if they deem it “medically necessary.”

·      Practice gratitude—keep a daily log of things to be thankful for that day

o   Shown to ease depression, curb appetite, and enhance sleep

o   Spirit of gratefulness leads to more sustainable happiness because it’s not based on immediate gratification, it’s more of a state of mind

·      Get moving during the day—if your office doesn’t have sit/stand desks, schedule time to move each day

o   Stretch time/desk yoga

o   Computer programs to remind you to move such as “Move” for iOS and “Big Stretch Reminder” for Windows

·      Extra happiness in the office—

o   Add a plant

o   Aromatherapy

o   Host a cooking class to encourage healthy meal plans

o   Pet-friendly office days

By showing your employees that you care about their physical and mental health you are showing that you care about them as people and not just employees. This results in higher motivated staff who are healthier. The Harvard Business Review even says that “employers who invested in health and wellness initiatives saw $6 in healthcare savings for every $1 invested.” You cannot always measure ROI on personnel investment but it looks like for workplace wellness, you can! Now get moving and get your office moving!

IRS Extends Deadline for Employers to Furnish Forms 1095-C and 1095-B | California Employee Benefits

On November 29, 2018, the IRS released Notice 2018-94 to extend the due date for employers to furnish 2018 Form 1095-C or 1095-B under the Affordable Care Act’s employer reporting requirement. Employers will have an extra month to prepare and distribute the 2018 form to individuals. The due dates for filing forms with the IRS are not extended.

Background

Applicable large employers (ALEs), who generally are entities that employed 50 or more full-time and full-time-equivalent employees in 2017, are required to report information about the health coverage they offered or did not offer to certain employees in 2018. To meet this reporting requirement, the ALE will furnish Form 1095-C to the employee or former employee and file copies, along with transmittal Form 1094-C, with the IRS.

Employers, regardless of size, that sponsored a self-funded (self-insured) health plan providing minimum essential coverage in 2018 are required to report coverage information about enrollees. To meet this reporting requirement, the employer will furnish Form 1095-B to the primary enrollee and file copies, along with transmittal Form 1094-B, with the IRS. Self-funded employers who also are ALEs may use Forms 1095-C and 1094-C in lieu of Forms 1095-B and 1094-B.

Extended Due Dates

Specifically, Notice 2018-94 extends the following due dates:

  • The deadline for furnishing 2018 Form 1095-C, or Form 1095-B, if applicable, to employees and individuals is March 4, 2019 (extended from January 31, 2019).

  • The deadline for filing copies of the 2018 Forms 1095-C, along with transmittal Form 1094-C (or copies of Forms 1095-B with transmittal Form 1094-B), if applicable, remains unchanged:

    • If filing by paper, February 28, 2019.

    • If filing electronically, April 1, 2019.

The extended due date applies automatically so employers do not need to make individual requests for the extension.

More Information

Notice 2018-94 also extends transitional good-faith relief from certain penalties to the 2018 employer reporting requirements.

Lastly, the IRS encourages employers, insurers, and other reporting entities to furnish forms to individuals and file reports with the IRS as soon as they are ready.



by Kathleen Berger
Originally posted on ThinkHR.com

Happier Holidays, the HR Way | CA Benefits Brokers

Most people, according to a new survey featured in HR Dive, have the greatest sense of belonging in their own homes. That may not be surprising news, but what is interesting is that one third of respondents felt the greatest sense of belonging in their workplace. A significant percentage, 40 percent, attribute that feeling to actions their colleagues and managers take to check in on them, both personally and professionally. Belonging improves employee retention and productivity, certainly, but it requires acknowledgement of diversity and efforts at inclusion.

This critical sense of belonging can be deepened, or hampered, during the holiday season. Beyond secular or national holidays like Thanksgiving and New Year's, the fall and winter months are full of faith-based holidays beyond Christmas. The Society for Human Resource Management has some tips as well as a list of celebrations for the coming months intended to help companies create inclusive workspaces for people of more faiths and cultures. When employees feel valued and known, they are more engaged.

Mutual respect is not only good for morale, it’s good for productivity. Some tips include sharing more about holidays in internal communications, creating luncheons that feature traditional dishes or are mindful of dietary restrictions or fasting practices, or sponsoring a service or volunteer day.

 

by Bill Olson
Originally posted on UBABenefits.com