All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
President-elect Donald Trump and Republican congressional leaders have announced repeatedly their intentions to repeal the Affordable Care Act (ACA) once President Barack Obama leaves office. But how that will exactly play out has been the topic of speculation by many.
Washington watchers expect that shortly after his inauguration on Jan. 20, President Trump and GOP leaders will try to pass a measure to repeal the ACA outright. That effort, however, will assuredly face a Democratic filibuster in the Senate, which would require at least 60 votes to overcome—and Republicans have only 52 Senate votes in the new Congress.
Facing a filibuster, Republicans are likely to turn to the budget reconciliation process, in which a simple Senate majority is needed to pass measures related to federal revenues and spending, as long as those measures are budget-neutral, meaning they neither increase nor decrease overall spending or revenue. Much of the ACA was originally passed by Democrats in 2010 using reconciliation.
For the parts of the ACA that are not directly related to federal spending, such as the insurance market reforms, Republicans may start negotiating with Democrats on changing the law in ways that can attract enough senators from both parties to reach the 60-vote threshold.
Opponents “cannot stand in the way of a repeal bill if the president goes out and says he wants it. They may be able to do some things to modify the transitional uncertainty, but it is happening,” said Randy Hardock, a partner at law firm Davis & Harman in Washington, D.C.
The taxes that the ACA imposed on employers will “go away,” he predicted. “But once they pass repeal, they won’t work on replace for two or three years, because the Democrats need to be brought to the table, and they’ll never cut a deal until the end” of the Congressional session.
“I do think they’ll pass a repeal bill, but I would speculate that they’ll try to do pieces of replace along with repeal,” said Katy Spangler, senior vice president, health policy, for the American Benefits Council, a trade association based in Washington, D.C.
The repeal bill that Congress passed last January, which was vetoed by Obama, “saved a half-trillion dollars” based on the elimination of direct federal subsidies for ACA coverage, she noted. If a similar bill is passed in 2017, those funds would be available to fund an ACA alternative—perhaps along the lines of a bill previously supported by House Budget Committee Chairman Tom Price, R-Ga., Trump’s nominee to be secretary of Health and Human Services. That measure would provide tax credits for people to buy insurance if they don’t have access to coverage through an employer or government program.
However, Spangler called it “a big gamble” to hope that the Senate will rule that money saved by repealing the ACA could be treated as a kind of budgetary fund that could later be used to make a replacement measure budget-neutral, when passed through the budget reconciliation process. “That’s a half-trillion-dollar gamble that [Republicans] might not be willing to take,” she said. “So maybe they do their version of the tax credits as part of that original repeal bill.”
Doing so, she suggested, “helps moderate Republicans know that you’re not just going to have 20 million people kicked off their insurance. And that gives you time to come back and get Democrats to perfect some of the market reforms and to perfect some other things to make [ACA repeal and replacement] better.”
On Jan. 3, Republicans introduced a resolution in the U.S. Senate to set up a reserve fund for future health care legislation under an ACA replacement bill, based on savings to be derived from the repeal of the Affordable Care Act.
While measures passed through the budget reconciliation process must be budget neutral, the resolution and related rules would give special protection to bills repealing or “reforming” the ACA, even if such bills cause a temporary increase in spending.
House Speaker Paul Ryan, R-Wis., said in a statement, “This resolution sets the stage for repeal followed by a stable transition to a better health care system. Today we begin to deliver on our promise to the American people.”
The New York Times reported that in the week of Jan. 9, according to a likely timetable sketched out by Rep. Greg Walden, R-Ore., incoming chairman of the House Energy and Commerce Committee, the House will vote on a budget blueprint, which is expected to call for the repeal of the Affordable Care Act. Then, in the week starting Jan. 30, Walden’s committee will act on legislation to carry out what is in the blueprint. That bill would be the vehicle for repealing major provisions of the health care law.
Carolyn Smith, a benefits attorney with Alston & Bird in Washington, D.C., agreed that the Republicans’ vetoed repeal bill from last January could be “a model for what they’re thinking about now. It’s been blessed by the Senate parliamentarian, so you know that everything in there works in reconciliation. It basically got rid of pretty much all the [ACA] taxes. It got rid of the Medicaid expansion with a delayed effective date.”
Left intact, Smith pointed out, were “all of the market reforms.” But, she said, “I don’t think that insurers are going to think it’s sustainable to have none of the risk adjustment and premium subsidies,” leaving them with a number of federal mandates, including required services that their health plans must cover.
“We’re going to need a road map for individual and small group market coverage [for plan year 2018] by April at the latest, given the timelines for filing products and rates, and getting approval by states,” said Kris Haltmeyer, vice president, health policy and analysis, for the Chicago-based Blue Cross Blue Shield Association.
The insurance industry will “need to see stability and that Congress will honor the [subsidy] commitments that have already been made for 2016 and 2017 for products that have been priced and are out in the market. And we need predictability going forward to see what the pathway is for the next two to three years.”
“There are a lot of challenges if you go ahead and repeal, even with a transition, and don’t provide signals to the health insurance market about what the industry is going to look like,” said Jeanette Thornton, senior vice president at America’s Health Insurance Plans, a Washington, D.C.-based trade association representing the health insurance community.
She agreed with Haltmeyer that “making design changes to benefits and networks takes time” and that “plans are developing products and rates in the spring for the following year. We’ve been stressing the need to have some certainly, some rules of the road, to understand what the market is going to transition to so we can be prepared and make those changes.”
With the market reforms and consumer protections that Republicans are signaling they want to keep, “what’s it all going to look like?” Thornton wondered. “There’s no shortage of work if you work in health policy right now.”
Earlier this week, President Obama signed the 21st Century Cures Act (“Act”). This Act contains provisions for “Qualified Small Business Health Reimbursement Arrangements” (“HRA”). This new HRA would allow eligible small employers to offer a health reimbursement arrangement funded solely by the employer that would reimburse employees for qualified medical expenses including health insurance premiums.
The maximum reimbursement that can be provided under the plan is $4,950 or $10,000 if the HRA provided for family members of the employee. An employer is eligible to establish a small employer health reimbursement arrangement if that employer (i) is not subject to the employer mandate under the Affordable Care Act (i.e., less than 50 full-time employees) and (ii) does not offer a group health plan to any employees.
To be a qualified small employer HRA, the arrangement must be provided on the same terms to all eligible employees, although the Act allows benefits under the HRA to vary based on age and family-size variations in the price of an insurance policy in the relevant individual health insurance market.
Employers must report contributions to a reimbursement arrangement on their employees’ W-2 each year and notify each participant of the amount of benefit provided under the HRA each year at least 90 days before the beginning of each year.
This new provision also provides that employees that are covered by this HRA will not be eligible for subsidies for health insurance purchased under an exchange during the months that they are covered by the employer’s HRA.
Such HRAs are not considered “group health plans” for most purposes under the Code, ERISA and the Public Health Service Act and are not subject to COBRA.
This new provision also overturns guidance issued by the Internal Revenue Service and the Department of Labor that stated that these arrangements violated the Affordable Care Act insurance market reforms and were subject to a penalty for providing such arrangements.
The previous IRS and DOL guidance would still prohibit these arrangements for larger employers. The provision is effective for plan years beginning after December 31, 2016. (There was transition relief for plans offering these benefits that ends December 31, 2016 and extends the relief given in IRS Notice 2015-17.)
Florida is raising its minimum wage to $8.10 an hour beginning Jan. 1, up 5 cents from $8.05 in 2016, the state Department of Economic Opportunity has announced. For tipped employees, the minimum wage will be at least $5.08 an hour.
The minimum wage rate is recalculated each year on Sept. 30, based on the Consumer Price Index. In 2016, the state’s minimum wage was unchanged from the previous year.
Be sure to update your required Florida Minimum Wage Posting to reflect this change. You can download a copy of the new poster here.
Rules Will Not Take Effect On December 1; Future Thereafter Uncertain
In a dramatic last-minute development, a federal judge in Texas on Tuesday (11/22/16) blocked the U.S. Department of Labor’s (DOL) overtime rule from taking effect on December 1. The judge issued a preliminary injunction preventing the rules from being implemented on a nationwide basis.
The fate of the overtime rules is now uncertain. The Trump administration will take over the DOL in less than two months’ time, and the incoming administration has repeatedly indicated that it wants to eliminate unnecessary regulations hampering the business community. Unless an appeals court reverses course in the next several weeks and breathes new life into the rules, it is quite possible that the rules will be further delayed, completely overhauled, or altogether scrapped once President Trump takes office.
Almost immediately, an outcry sprung from the business community, especially those advocating on behalf of small businesses. By doubling the existing salary threshold, the DOL’s actions would likely reduce the proportion of exempt workers sharply while increasing the compensation of many who will remain exempt, rather than engaging in the fundamentally definition process called for under the FLSA. As many pointed out, manipulating exemption requirements to “give employees a raise” has never been an authorized or legitimate pursuit.
Moreover, publishing what amounts to an automatic “update” to the minimum salary threshold is something that has never before happened in the more-than-75-year history of the FLSA exemptions. This departs from the prior DOL practice of engaging in what should instead ultimately be a qualitative evaluation that would take into account a variety of considerations.
The challengers argued that the DOL did not properly carry out its responsibility under the FLSA to define these exemptions, failing to take into account the duties of white-collar workers as the best indicator for whether threshold increases were needed. The plaintiffs also argued that the automatic indexing mechanism which would ratchet up the salary levels every three years was improper because it would ignore current economic conditions or the effect on public and private resources.
The judge recognized that, for 75 years, the salary levels that served as part of the DOL’s overtime exemption test acted as a floor and not a ceiling. He said during last week’s oral argument the new rule’s proposed salary jump was “a much more drastic change.” During that argument, in fact, he pointed out that the proposed substantial increase in the salary threshold could lead to inconsistent treatment of workers who each fulfill white collar duties but are paid differently. An example is a convenience store manager who clearly acts as an executive and who is paid a salary annualizing to only $47,000 a year, for example, would be treated differently than a similarly situated manager who is paid a salary equating to $47,500 a year.
Assuming that the injunction survives the remainder of President Obama’s term, it is difficult to predict what President Trump will do with the rules once in the White House. Perhaps President Trump will direct his DOL to commence a new rulemaking process, subject to notice and comment, with the goals of setting lower thresholds for the salary requirement and eliminating the three-year update, among other changes. How long and what form such a process would take, and what could or would be done in the meantime, are currently unpredictable.
At the same time, a series of measures have been introduced in Congress hoping to prevent or stall the rules changes. While one of the proposed legislative changes would scrap the increases altogether, another proposed change would delay implementation for a period of time to provide a longer period of preparation. Still, another would push the date that the full increase would take effect to 2019, introducing more forgiving gradual increases on an annual basis for the next three years.
The fate of these measures is similarly uncertain at present. Even if any of these measures were fast-tracked, approved by Congress, and signed by President Obama before he leaves office, it is unclear whether they would ever take effect given the nature of the current litigation.
If you had been waiting until December 1 to implement the changes, you have the option of putting any alterations on ice and awaiting a final determination on the fate of the rules. If you do so, you might consider communicating to your workforce that the expected changes are going to be delayed given today’s court ruling, and let them know that you will continue to monitor the situation and make adjustments when and if appropriate.
We will track these developments and provide updates as issued.
In IRS Notice 2016-70, the IRS announced a 30-day automatic extension for the furnishing of 2016 IRS Forms 1095-B (Health Coverage) and 1095-C (Employer-Provided Health Insurance Offer and Coverage), from January 31, 2017 to March 2, 2017. This extension was made in response to requests by employers, insurers, and other providers of health insurance coverage that additional time be provided to gather and analyze the information required to complete the Forms. Notwithstanding the extension, the IRS encourages employers and other coverage providers to furnish the Forms as soon as possible.
Notice 2016-70 does not extend the due date for employers, insurers, and other providers of minimum essential coverage to file 2016 Forms 1094-B, 1095-B, 1094-C and 1095-C with the IRS. The filing due date for these forms remains February 28, 2017 (March 31, 2017, if filing electronically), unless the due dates are extended pursuant to other available relief.
The IRS also indicates that, while failure to furnish and file the Forms on a timely basis may subject employers and other coverage providers to penalties, such entities should still attempt to furnish and file even after the applicable due date as the IRS will take such action into consideration when determining penalties.
Additionally, guidance provides that good faith reporting standards will apply for 2016 reporting. This means that reporting entities will not be subject to reporting penalties for incorrect or incomplete information if they can show that they have made good faith efforts to comply with the 2016 Form 1094 and 1095 information-reporting requirements. This relief applies to missing and incorrect taxpayer identification numbers and dates of birth, and other required return information. However, no relief is provided where there has not been a good faith effort to comply with the reporting requirements or where there has been a failure to file an information return or furnish a statement by the applicable due date (as extended).
Finally, an individual taxpayer who files his or her tax return before receiving a 2016 Form 1095-B or 1095-C, as applicable, may rely on other information received from his or her employer or coverage provider for purposes of filing his or her return. Thus, if employers take advantage of the extension in Notice 2016-70 and receive employee requests for 2016 Forms 1095-C before the extended due date, they should refer their employees to the guidance in Notice 2016-70.
U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.
The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:
1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;
2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;
3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;
4) A separate page (Page 3) for Section 3 of the Form I-9;
5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.
The Affordable Care Act created a three-year transitional reinsurance program that reimburses health insurers in the individual market (both inside and outside the Marketplace/Exchanges) for losses they sustain when they enroll individuals who are higher-cost claimants. Health insurers and group health plans must contribute to this program by paying fees over a three-year period. 2016 is the third and final year for which these fees will be assessed.
The submission required for this final year’s fees must be filed by November 15, 2016, using the same online process used for the two prior years (i.e., via www.pay.gov).
The fees are assessed on plans that provide major medical coverage. The fees are paid on a per-person basis for each “covered life” under the plan, including dependents. For 2016, the fees are $27 per covered life, with payments due in 2017.
The fees are determined based on the plan’s enrollment count during the first nine calendar months of the year, regardless of the plan’s actual plan year. Enrollment counts for the first nine months of 2016 must be submitted by November 15, 2016. The form that contributing entities are required to submit by this deadline must include the date(s) in 2017 that the payments will be made as one or two automatic debits from the entity’s designated bank account.
Plans that are self-insured and self-administered are not required to pay the fees for 2016. To be regarded as self-administered, self-insured plans must retain responsibility for claims processing, claims adjudication (including internal appeals) and enrollment. Exceptions permit a self-insured group health plan to use a third-party administrator (TPA) in limited circumstances, but still avoid paying the fee. Plan sponsors eligible for the self-administered exemption do not need to take any action to claim it. In other words, no filing or submission is required for 2016 fees.
The official online form that needs to be completed is called the 2016 ACA Transitional Reinsurance Program Annual Enrollment and Contributions Submission Form (the 2016 Form). It became available online on October 3, 2016. CMS has posted web-based materials to assist plan sponsors in completing the 2016 Form. Plan sponsors will have to count enrollment in the plan for the first nine months of 2016, using any permissible counting method. As was the case for 2015, if the plan sponsor is reporting for itself, there is no need to upload supporting documentation with the 2016 Form. Plan sponsors that relied upon a third-party administrator (TPA) to do the submission for 2015 and intend to do the same this year should contact their TPA immediately to make sure the TPA is prepared to handle this for 2016.
Plan sponsors that may be newly eligible for the exemption for self-insured, self-administered plans due to a change in their operations should work with legal counsel to determine if the exemption is applicable. Other plan sponsors should get ready to complete the submission process before the November 15, 2016 deadline. The transitional reinsurance fee cannot be extended by the federal government unless authorized by Congress.
The IRS has released final 1094 C and 1095 C forms for 2016 and has posted final instructions as well. The changes from the 2015 forms were minor. However, the instructions for completing the 1094 C and 1095 C forms for 2016 have changed significantly. The changes primarily were more extensive explanations on how to complete the forms.
The final forms and instruction can be found at:
As of now, a full cycle of reporting and penalty determinations has not yet been seen. The due dates for providing the forms and submitting them to the IRS were delayed for the 2015 forms. Employers may not see penalty determinations from the IRS for these forms.
The reporting requirements will affect applicable large employers (ALEs) every year. Employers should establish a process for populating the forms and submitting them to the IRS. If you are responsible for completing these forms, we recommend reviewing the final instructions to ensure understanding of the requirements for completing &submitting the forms.
The following summarizes key points from the 2016 final instructions:
The 2016 instructions are much clearer than the filing instructions from 2015.
The following summarizes key points from the final 2016 Form 1094 C:
The 1094 C has changed minimally for 2016.
The following summarizes key points from the final 2016 Form 1095 C:
A conditional coverage offer to a spouse does not include a spousal surcharge. It does include spousal force outs (spouse not offered coverage if coverage is available through spouse’s employer). Another conditional offer would be if you required spouses to enroll in their employers’ plan, before they could be eligible for your plan.
Employers should start addressing how they will handle reporting for 2016. If you are responsible for completing or checking the forms, read through the instructions. The final 2016 instructions explain more practically the reporting requirements. More examples are included as well.
If you are a self-funded plan and choose to use the B forms for specific non-employees, the B forms and instructions can be found at:
Both the 1095 B forms and the 1095 C forms have a VOID box in the upper right hand corner. Employers are instructed to never check the VOID box.
Both the 1095 B and 1095 C forms include instructions for taxpayers to retain the form with their tax records. It appears these forms will not have to be submitted with tax returns in 2017.
The good faith compliance standard will not apply in 2016 unless the IRS decides at a later date to extend it. In addition, the original deadlines will apply.
Employers should be gearing up now to complete the necessary forms for 2016.
Today the IRS released Revenue Procedure 2016-55 confirming a $50 increase in the health FSA contribution limit to $2,600.
With the passing of the ACA, employee contributions to an FSA were initially limited to $2500 per plan year. This has increased since 2014 to adjust for inflation with the limit being bumped up slightly to $2550 for 2015 & 2016 plan years.
Now, for health FSA plan years beginning on or after January 1, 2017, we have a new increase in the salary reduction contribution limit to $2,600. Be sure to double-check your Section 125 cafeteria plan document to confirm that it automatically incorporates these health FSA cost-of-living increases or to see if you need to specifically request to have the cap increased.
Earlier this year, the IRS also announced the inflation adjusted amounts for 2017 HSA contributions in Revenue Procedure 2016-28. For individuals in self-only coverage, the 2017 contribution limit will increase to $3,400 (up from $3,350). The family coverage contribution limit remains at $6,750 again in 2017.