While employers with a fixed worksite can observe and interact directly with their employees to promote safety and reduce risk, employers with workers who operate motor vehicles as part of their job have fewer options.
Highway accidents remain the leading cause of work-related deaths, and also carry tremendous personal, social, and economic costs. The good news is that new technologies in on-board safety monitoring systems are being developed and implemented in both commercial fleets and private vehicles to offer the potential to further improve safety. These technologies allow you to collect safety-specific information related to your drivers’ on-the-road behavior and performance.
Why Monitor?
There are numerous reasons for employers, particularly fleet operators, to
consider installing driver performance monitoring devices. Such devices could
result in the promotion and encouragement of safer driving practices, which
benefit both you and your drivers. Additionally, data from these devices could
be used as teaching tools to reduce the likelihood of future accidents.
Similarly, in case of an accident, data from a monitoring device could be used to establish how the accident occurred and confirm that the driver was not at fault. Finally, these devices could decrease unauthorized vehicle usage and unscheduled stops, vehicle theft, and unsafe driving habits.
Make Sure To Stay Legal
These devices and accessories are governed by federal regulations. The Federal
Motor Carrier Safety Administration permits them if they do not decrease the
safety of the motor vehicles on which they are used, and if they are equipped
in accordance with specific requirements set out in the regulations. For
example, the law states that devices must be mounted six inches below the top of
the windshield, outside of the area swept by the windshield wiper blades, and
outside the driver’s sight lines to the road, highway signs, and signals.
A majority of states have also enacted laws that govern the use of such devices and accessories. Generally, most states do not permit any device (for surveillance or otherwise) if they obstruct or reduce the driver’s view, unless a specific exemption applies. This is important for employers to note because, unlike the older cameras attached at the top of the windshield, the driver performance monitoring devices placed at the bottom of the windshield require an exemption.
Other states include additional requirements. In California, for example, a video recording device is only permitted in a vehicle if it can monitor driver performance to improve safety, and has the capability of recording “audio, video and G-Force levels continuously in a digital loop.” The device must automatically save the video when triggered by an unusual motion or crash, and cannot store more than 30 seconds of video, audio, and other data before or after the “triggering event.” The device must be outside of the airbag deployment zone and in a seven-inch square in the lower right corner of the windshield, or in a five-inch square in the lower left corner of the windshield.
Because regulations and exemptions vary from state to state, you should consult with an attorney regarding state-specific regulations and exemptions prior to installing them.
Other Considerations
You should be mindful that the federal government and most state governments
have privacy and wiretapping laws that restrict or prevent recording an
individual’s voice and/or image without prior consent. You should consult with
counsel before proceeding, and consider establishing a written policy to notify
your employees of the existence of cameras so as to not violate privacy rights.
You may also have an affirmative duty to preserve all recordings and reports for a certain length of time after a “triggering event.” Because a video recording captured by the camera, and any report associated, could be considered discoverable information in litigation and may have to be produced to the complaining party, failure to preserve may result in litigation sanctions.
You should also establish a retention policy and follow it. Remember that a complaining party potentially could request all preserved recordings and use the evidence to argue that you have a history of employing bad drivers. You could also be holding on to evidence that shows a specific driver has a history of accidents or unsafe driving practices, or that you knew or should have known that the driver exhibited risky behavior.
Many employers offer affordable health coverage that meets or exceeds the minimum value requirements of the Affordable Care Act (ACA). However, if one or more of their full-time employees claims the coverage offered was not affordable, minimum value health coverage, the employee could (erroneously) get subsidized coverage on the public health exchange. This would cause problems for applicable large employers (ALEs), who potentially face employer shared responsibility penalties, and for employees, which may have to repay erroneous subsidies.
If an employee does receive subsidized coverage on the public exchange, most employers would want to know about it as soon as possible and appeal the subsidy decision if they believed they were offering affordable, minimum value coverage. There are two ways employers might be notified: (1) by the federally facilitated or state-based exchange or (2) by the Internal Revenue Service (IRS).
Employer notices from exchanges
The notices from the exchanges are intended to
be an early-warning system to employers. Ideally, the exchange would notify
employers when an employee receives an advance premium tax credit (APTC) subsidizing
coverage. The notice would occur shortly after the employee started receiving
subsidized coverage, and employers would have a chance to rectify the situation
before the tax year ends.
In a set of Frequently Asked Questions issued September 18, 2015, the Center for Consumer Information and Insurance Oversight (CCIIO) stated the federal exchanges will not notify employers about 2015 APTCs and will instead begin notifying some employers in 2016 about employees’ 2016 APTCs. The federal exchange employer notification program will not be fully implemented until sometime after 2016.
In 2016, the federal exchanges will only send APTC notices to some employers and will use the employer address given to the exchange by the employee at the time of application for insurance on the exchange. CCIIO realizes some employer notices will probably not reach their intended recipients. Going forward, the public exchanges will consider alternative ways of contacting employers.
Employers that do receive the notice have 90 days after receipt to send an appeal to the health insurance exchange.
Employers that do not receive early notice from the exchanges will not be able to address potential errors until after the tax year is over, when the IRS gets involved.
Employer notices from IRS
The IRS, which is responsible for assessing and
collecting shared responsibility payments from employers, will start notifying
employers in 2016 if they are potentially subject to shared responsibility
penalties for 2015. Likewise, the IRS will notify employers in 2017 of
potential penalties for 2016, after their employees’ individual tax returns
have been processed. Employers will have an opportunity to respond to the IRS
before the IRS actually assesses any ACA shared responsibility penalties.
Regarding assessment and collection of the employer shared responsibility payment, the IRS states on its website:
An employer will not be contacted by the IRS regarding an employer shared responsibility payment until after their employees’ individual income tax returns are due for that year—which would show any claims for the premium tax credit.
If, after the employer has had an opportunity to respond to the initial IRS contact, the IRS determines that an employer is liable for a payment, the IRS will send a notice and demand for payment to the employer. That notice will instruct the employer how to make the payment.
Bottom line
For 2015, and quite possibly for 2016 and future years, the
soonest an employer will hear it has an employee who received a subsidy on the
federal exchange will be when the IRS notifies the employer that the employer
is potentially liable for a shared responsibility payment for the prior year.
The employer will have an opportunity to respond to the IRS before any
assessment or notice and demand for payment is made. The “early-warning system”
of public exchanges notifying employers of employees’ APTCs in the year in
which they receive them is not yet fully operational.
The Patient-Centered Outcomes Research Institute (PCORI) fee was established under the Affordable Care Act (ACA) to advance comparative clinical effectiveness research. The PCORI fee is assessed on issuers of health insurance policies and sponsors of self-insured health plans. The fees are calculated using the average number of lives covered under the policy or plan, and the applicable dollar amount for that policy or plan year. The past PCORI fees were—
The new adjusted PCORI fee is—
Employers and insurers will need to file Internal Revenue Service (IRS) Form 720 and pay the updated PCORI fee by July 31, 2016
Transitional Reinsurance Fee
Like the PCORI fee, the transitional reinsurance fee was established under the ACA. It was designed to reinsure the marketplace exchanges. Contributing entities are required to make contributions towards these reinsurance payments. A “contributing entity” is defined as an insurer or third-party administrator on behalf of a self-insured group health plan. The past transitional reinsurance fees were
The new adjusted transition reinsurance fee is—
On October 7, 2015 President Obama signed the Protecting Affordable Coverage for Employees (PACE) Act that amends the Affordable Care Act (ACA) definition of a “small employer” for the purpose of purchasing health insurance coverage.
Prior to the signing of this amendment and beginning January 1, 2016, every state was required to expand the definition of the small group market to include employers with up to 100 employees. Prior to January 1, 2016 states had the flexibility to maintain the definition of a small employer to those with up to 50 employees and most states continued to do so.
The PACE Act repeals the mandatory expansion of the small group market to employers with up to 100 employees and reverts to the prior definition of up to 50 employees, although the states maintain flexibility to define the small market as up to 100 employees if they wish.
Under the ACA, health insurance offered in the small group market must meet strict underwriting requirements and cover all essential health benefits- conditions that do not apply in the large group market. Concerns about steep price increases and loss of benefit design flexibility from many businesses with 51 – 100 employees who would be re-classified as a “small employer” prompted this bi-partisan amendment to the law.
What Happens Now?
Numerous questions surround the passage of this amendment to the ACA given the fact that the change has happened so late in 2015. Insurance carriers have already filed their small group 2016 plan rates assuming the expansion of this market space and many employers impacted by their re-classification have already secured coverage or are finalizing plans for 2016 coverage. Here are some questions that hopefully will be addressed in the near future:
Employers who are impacted by this ACA amendment should monitor the situation and determine what may be the best course of action for your employees.
The Affordable Care Act (“ACA”), introduced in 2014 the Transitional Reinsurance Fee (“Fee”) in an effort to fund reinsurance payments to health insurance issuers that cover high-risk individuals in the individual market and to stabilize insurance premiums in the market for the 2014 through 2016 years. The Fee has also been instituted to pay administrative costs related to the Early Retiree Reinsurance Program.
BACKGROUND ON TRANSITIONAL REINSURANCE PROGRAM
The ACA established a transitional reinsurance program to provide payments to health insurance issuers that cover high risk individuals in an attempt to evenly spread the financial risk of issuers. The program is designed to provide issuers with greater payment stability as insurance market reforms are implemented and the state-based health insurance exchanges/marketplaces facilitate increased enrollment. It is expected that the program will reduce the uncertainty of insurance risk in the individual market by partially offsetting issuers’ risk associated with high-cost enrollees. In an effort to fund the program, the ACA created the Fee which is a temporary fee that is assessed on health insurance issuers and plan sponsors of self-funded health plans. The Fee is applicable for the 2014, 2015 and 2016 years and is deductible as an ordinary and necessary business expense.
The Fee is generally applicable to all health insurance plans providing major medical coverage including sponsors of self-insured group health plans. Major medical coverage is defined as health coverage for a broad range of services and treatments, including diagnostic and preventive services, as well as medical and surgical conditions in inpatient, outpatient and emergency room settings. Since COBRA continuation coverage generally qualifies as major medical coverage, the Fee will also apply in this instance. It does not, however, apply to employer provided major medical coverage that is secondary to Medicare.
The Fee, as currently structured, does not apply to various other types of plans including (but not limited to) health savings accounts (H.S.A.s), employee assistance plans (EAP) or wellness programs that do not provide major medical coverage, health reimbursement arrangements integrated with a group health plan (HRA), health flexible spending accounts (FSA) and coverage that consists of only excepted benefits (e.g. stand-alone dental and vision).
AMOUNT OF THE FEE
The Fee for the 2015 benefit year is equal to $44 per covered life. It is expected that the Fee for the 2015 benefit year will generate approximately $8 billion in revenue. The Fee for the 2016 year is expected to be $27 per covered life and will raise approximately $5 billion in revenue. Thereafter, the Fee is set to expire and no longer be applicable. The fee for 2014 was $63 per covered life.
REPORTING THE NUMBER OF COVERED LIVES AND PAYING THE FEE
The 2015 ACA Transitional Reinsurance Program Annual Enrollment and Contributions Submission Form will be available on www.pay.gov on October 1, 2015. The form for 2014 is also available on this website. Please note there is a separate form for each benefit year. For the 2015 year, the number of covered lives must be reported to the Department no later than November 16, 2015. The Department will then notify reporting organizations no later than December 15, 2015 the amount of the fee that will be due and payable.
As with the 2014 benefit year, the Department of Health and Human Services has given contributing entities two different options to make the payment. Under the first option, the first portion of the Fee ($33 per covered life) is due and payable no later than January 15, 2016 (30 days after issuance of the notice from the Department). This portion of the Fee will cover reinsurance payments and administrative expenses. The second portion of the Fee ($11 per covered life) will cover Treasury’s administrative costs associated with the Early Retiree Reinsurance Program and will be due no later than November 15, 2016.
Under the second payment option, contributing entities can opt to pay the full amount ($44 per covered life) by January 15, 2016.
As the number of covered lives is due to be reported no later than November 16th of this year, employers should review their types of health coverage and determine which plans are subject to the Fee. Employers that have fully insured plans should be on the lookout for potential increased premiums as the insurance carrier is responsible to report and pay the Fee on behalf of the plan in these instances. Those with self funded medical coverage need to be sure to report and pay the fe
Fitness wearables are hot right now—from trackers to watches to smart clothing from Ralph Lauren—it seems everyone wants to be part of the fitness wearables party. According to recent research, the wearables market keeps growing for both employers and consumers.
Consider the facts:
There are plenty of reasons consumers—including your employees—are embracing fitness wearables:
While it’s clear that wearables have sparked an interest in employee health and wellness, do fitness trackers and wearables result in long-term behavior change for the individuals that wear them?
If you provide fitness trackers to your employees—or if you own a tracker yourself—you may know the excitement of wearing it the first day. Employees feel “cool,” tracking their steps and competing with their co-workers to keep them motivated. But when—and if—the fun factor wears off, some may lose interest.
Even the hottest fitness trackers fall victim to the “shiny penny syndrome,” where employees—and employers—are easily attracted to newest, latest and greatest tool only to lose interest when the next “shiny penny” comes along.
How long does interest in fitness wearables typically last? Just six months, according to a report from Endeavour Partners. The report states that after six months of use, one-third of consumers stop using their fitness wearable devices. And more than half of Americans who have owned a wearable activity tracker no longer use it.
When integrated into a corporate wellness strategy, wearables can make it easier for participants to track changes in their health and monitor their progress. And for some participants, wearable devices can serve as a critical spark to engage them in a journey towards better health.
However, research from the Journal of the American Medical Association shows that wearables alone cannot induce sustainable behavior change, but are best used as tools to support behavior change and to help people feel connected.
Creating an environment to make healthy choices easy for employees is equally important to improve employee health outcomes as the programs and services used to spark initial change.
Employers must provide a creditable or non-creditable coverage notice at least once a year to all Medicare eligible individuals who are covered under, or who apply for, the group’s prescription drug plan. This notice must be provided to both active employees and retirees who are eligible for Medicare Part D.
The Medicare Modernization Act mandates that all employers offering prescription drug coverage disclose to all Medicare eligible individuals with prescription drug coverage under the plan whether the coverage is “creditable”. This information is essential to the Medicare eligible’s decision whether to enroll in a Medicare Part D prescription drug plan.
Employers are required by the Centers for Medicare and Medicaid Services (CMS) to provide creditable coverage at least once a year and at the following times:
This notice does not need to be a separate mailing and can be included with other plan information materials either printed or electronic. Employers are required to provide this notice and to provide CMS with your plan’s creditable or non-creditable coverage status annually via online form within 60 days of the beginning of each plan year.
Please contact our office for assistance in determining if your prescription drug plan is considered creditable or non-creditable coverage or if you need a copy of the model notice for employees.
The State of Florida has updated its Discrimination poster to include pregnancy as a protected class. The state’s Civil Rights Act was amended earlier this year to prohibit discrimination on the basis of pregnancy. This amended law took effect July 1st and you are required to post this revised notice. Be sure to check your postings to make sure you have the updated notice posted. Please contact out office if you need a copy of the updated notice.
If you employed more than 100 people in the preceding calendar year, you are required to complete and submit your EEOC Report 1 (Survey) by September 30th. You should have received a reminder letter via mail from the EEOC in August also with the link to file the report online.
Please contact our office for information about the EEOC Report 1 or for the link to the EEOC’s web based filing system.
Courtesy of Fisher & Phillips LLP
The Equal Employment Opportunity Commission (EEOC) recently rolled out a pilot program to electronically notify employers of new charges filed against them. Instead of mailing the Notice of Charge of Discrimination form through conventional means, the EEOC is rolling out a new system that will notify an employer of a pending charge and allow an employer to respond to the charge through an online portal.
This new system is catching a lot of employers by surprise, and has resulted in many questions. Fisher & Phillips has developed a list of Frequently Asked Questions to aid employers in understanding this new pilot program.
What is this new system?
The EEOC is piloting a new electronic system involving an online portal called
ACT Digital. If a new Charge of Discrimination is filed against you, the EEOC
will email you notice of the new Charge and invite you to download a copy
through the portal.
Phase I of the project only allows employers a channel of communication with the EEOC about the Charge. Charging Parties are not yet allowed electronic access. In this first phase, upon consenting to certain terms and conditions, you are able to:
The EEOC has indicated that employers will also be able to use ACT Digital to communicate with the EEOC regarding extensions, inquiries, and other Charge-related issues. It seems this option may already be operational in some EEOC offices.
Where is the EEOC implementing ACT Digital?
The EEOC is rolling out ACT Digital in waves. The first wave began in early May
2015 and included EEOC offices in San Francisco and Charlotte. Earlier this
summer, the EEOC released the program in a second wave of offices, which
included Denver, Detroit, Indianapolis, and Phoenix. The EEOC’s goal is to
implement ACT Digital in all of its 53 offices by October 2015.
How will we first receive notice?
The EEOC will send an email containing a Charge notification to an employer’s
representative. The EEOC might obtain this email address from the Charging Party,
or may obtain it from past email communications with those businesses already
in the EEOC’s system.
Note that this could result in a manager or supervisor receiving notice of a Charge outside his or her own department or area. We are still checking to see if the EEOC will allow employers to proactively designate an email address where all notices to the company should be sent.
Must employers use this system?
This is the most common question we’ve received so far. The short answer is no
– for now. Employers are currently not required to use ACT
Digital during the pilot period of implementation. Note that if you do respond
to the initial email, you may be creating an obligation to use the system going
forward, thereby limiting your position with regard to how the Charge is
handled.
However, the EEOC is transitioning to an entirely electronic format and, as a practical matter, all employers will likely be required to use this electronic system in the future.
What if the notification email is blocked by a
firewall or spam folder?
The EEOC’s notification procedure includes some “fail-safes” to ensure you do
not miss notifications of pending Charges. For example, the EEOC may send a
hard copy of the Charge if the online portal is not accessed by the employer
within approximately 10 days after the notice email is sent.
Can the Charge be viewed by the public?
No, with one exception. Each Charge has a unique portal access that you will
use for the life of the case. Therefore, only people with access through the
unique portal address will be able to access ACT Digital to view the Charge and
your Position Statement. At this time, even the Charging Party does not have
access to the online portal.
The one exception – which has always been the case – is that the public may request Charge files under the Freedom of Information Act (FOIA). The EEOC has stated that it will continue to follow its current protocols and federal regulations in responding to FOIA requests (which typically do not allow for access to the Charge while the matter is pending).
Similarly, the unique portals will close after a period of time. We do not know for sure, but it is believed the portals will be deactivated 90 to 100 days after the EEOC closes the file. Because the portals expire, you should download and retain all necessary files and documents related to the Charge if they use the electronic system.
Will state human affairs commissions use ACT
Digital?
At this time, the EEOC has not indicated whether state human affairs
commissions will be utilizing the ACT Digital system.
What will Phase II look like?
The EEOC has released very little information about Phase II and any
speculation as to what is in the pipeline is just that – speculation. With that
caveat, there are a few likely next moves.
We expect the EEOC will open the portal to Charging Parties so they may file and monitor their Charges online. It is unknown, however, whether the portals will be kept separate or combined. In the future, the EEOC may also maintain a database of the employer’s prior Charges, as opposed to deactivating the portal.
What should we do immediately?
Because you could receive notice of a new Charge tomorrow, you should instruct
all of your supervisors and managers today to immediately contact the HR
department or in-house counsel if they get an email from the EEOC. Just as in
the past you instructed them to forward on any hard copy EEOC Charge received
in the mail, the same rule should apply for electronic notices.
You should take it one step further in this digital age: counsel your managers not only to forward on EEOC emails to proper company channels without responding, but also to refrain from downloading the Charge or even clicking anywhere on the email.
Phase I of the ACT Digital rollout should not drastically affect how you respond to EEOC Charges. In fact, it might make communication with the EEOC easier. As additional phases are rolled out, however, this could change. Stay tuned for more updates.
Do you want to learn more?
Fisher & Phillips LLP is hosting a free, 20-minute webinar on this subject on Thursday, September 10, 2015, at 12:00pm EST. You can register for “EEOC Goes Electronic: FAQs On EEOC’s New Electronic Pilot Program” by visiting their website (www.laborlawyers.com) and looking under the “Events” tab.
