Recent Regulatory and Legal Updates You Should Be Aware Of

In the past year, covering the end of the Obama administration to the beginning of the Trump White House, several developments have taken place on the legal and regulatory fronts that employers should be aware of and comply with as needed.

Jan. 22, 2017: Revised Form I-9 use is mandated. The new employment eligibility form that must be used for all new hires comes now in both a plain paper and a digital format. I-9 versions other than the one marked 11-14-16 N can no longer be used.

Jan. 17, 2017: Walking Working Surfaces Standard in effect. Though certain parts of the slips, trips and falls standard issued by the Occupational Safety and Health Administration (OSHA) are being phased in, the rule itself took effect this January. The final rule includes revised and new provisions addressing, for example, fixed ladders; rope descent systems; fall protection systems and criteria, including personal fall protection systems; and training on fall hazards and fall protection systems.

Jan. 1, 2017: OSHA Electronic Reporting Rule takes effect. The new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Contained within the rule (see below) was an anti-retaliation provision barring employers from retaliation against employees who report injuries or illnesses.

Dec. 1, 2016: White Collar Overtime Rule blocked by court injunction. A Department of Labor (DOL) final rule raising the salary threshold for exemption from overtime pay at time-and-a-half was stopped by a judge in Texas. The issue now lies before the 5th U.S. Circuit Court of Appeals, but it’s not clear if the Trump administration will continue the appeal. The rule established the new salary threshold at $913 a week, or $47,476 a year. As of now, the old threshold of $455 a week, or $23,660, remains in effect.

Dec. 1, 2016: OSHA Anti-Retaliation Rule takes effect. As part of the new electronic reporting requirement of injuries and illnesses from certain employers, an anti-retaliation rule took effect late in 2016. The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster.

Nov. 18, 2016: EEOC Issues Guidance on National Origin Discrimination. Title VII of the Civil Rights Act of 1964 protects applicants and employees from employment discrimination based on their race, color, religion, sex, national origin, opposition to practices made unlawful by Title VII, or participation in Title VII proceedings.Title VII’s protection against national origin discrimination extends to all employees and applicants for employment in the United States, and, in some circumstances, to U.S. citizens working in other countries. The Equal Employment Opportunity Commission (EEOC), which enforces the Civil Rights Acts, in late 2016 updated and reissued its guidance on national origin discrimination.

Aug. 29, 2016: EEOC Issues Retaliation Guidance.  The EEOC in summer 2016 issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Trump Administration Rescinds Obama-era Transgender Bathroom Use Rules

Already subject to an injunction and ongoing litigation, the joint rule by the Obama Department of Justice (DOJ) and Department of Education (DOE) mandating free bathroom choice at public schools was rescinded today by the administration of President Donald Trump.

The rule would have allowed students to choose their bathroom based on self-proclaimed gender identity.

The Trump DOJ and DOE ordered the earlier rules rescinded because they didn’t “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

The departments added that former President Barack Obama’s rules had set off “significant litigation,” in particular as courts differed over the definition of the term “sex.” The letter also emphasized the agencies’ preference that states and local school districts be given a “primary role” in setting education policy.

At a news conference, White House Press Secretary Sean Spicer explained: “The president has made it clear throughout the campaign that he is a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Post-Trump, the IRS Will Allow Tax Returns that Are ‘Silent’ about Health Insurance

With the passage of the Affordable Care Act (ACA) in 2010, the IRS was tasked with exacting monetary fines on individual taxpayers who do not have health insurance for the full time of the reporting period, generally a calendar year. The ACA, under a provision known as Individual Shared Responsibility, even established an escalating scale for the dollar amount to be fined.

For 2017, the IRS announced that it would no longer process returns for individuals who remain “silent” about whether they had health insurance for the year. Thus refunds would not be issued until the taxpayer proved he or she had had insurance for the whole year. If no proof of insurance, then the appropriate fine could be calculated and deducted.

Following President Trump’s executive order on Jan. 20 for all federal agencies to reduce the burden of the ACA, however, the IRS announced that it would continue to process “silent” returns as it reviews the ACA in light of the president’s executive action. On its website, the IRS announced:

Processing silent returns means that taxpayer returns are not systemically rejected by the IRS at the time of filing, allowing the returns to be processed and minimizing burden on taxpayers, including those expecting a refund. When the IRS has questions about a tax return, taxpayers may receive follow-up questions and correspondence at a future date, after the filing process is completed‎. This is similar to how we handled this in previous years, and this reflects the normal IRS post-filing compliance procedures that we follow.

However, legislative provisions of the ACA law are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe‎.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New SBC Template in Effect April 1

A new Summary of Benefits and Coverage (SBC) template goes into effect April 1.

The Affordable Care Act (ACA), which may or may not be repealed this year by Republicans, requires that SBCs be distributed to policyholders each year, detailing the coverage they have under their health plan.

The April 1 deadline applies to policies coming into effect on that date or later. Thus calendar-year plans must use the new template beginning in January 2018.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CMS Under Trump Proposes Big Changes to Obamacare

The Centers for Medicare and Medicaid (CMS) today proposed shortening the open enrollment period for Obamacare, virtually cutting it in half, while also lowering the benefits and coverage standards for health insurers. The latter is designed to stabilize and eventually lower premiums.

The proposed new enrollment period for insurance under the Affordable Care Act (ACA) is set to run from Nov. 1 to Dec. 15, 2017. All four previous open enrollments lasted from Nov. 1 to Jan. 31.

Additionally, the rule would lower the “de minimis range used for determining the level of coverage.” The level of coverage refers to the bronze, silver and gold plans offered under the ACA on its marketplaces.

“This proposal will take steps to stabilize the marketplace, provide more flexibility to states and insurers, and give patients access to more coverage options,” said Patrick Conway, acting CMS administrator. “They will help protect Americans enrolled in the individual and small group health insurance markets while future reforms are being debated.”

Among other things, the proposed rule will allow insurers to delay yearly renewals until the policyholders catch up on any payments owed; will require more proof and documentation for those who want to sign up for ACA policies outside of the open enrollment period; and will give insurers more time to set the policy rates for 2018. On the latter, CMS said it would be releasing separate guidance.

The rule will be published in the Federal Register on Friday, Feb. 17. Meanwhile, you can download an unpublished PDF version.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Humana to Exit Obamacare Exchanges

Saying it is “seeing further signs of an unbalanced risk pool,” Humana announced on Tuesday that it is exiting the health insurance exchanges set up under the Affordable Care Act (ACA), which may be moot if the Republicans in Congress carry out their threat to “repeal and replace” Obamacare, though their timetable is uncertain.

Humana last year already drastically scaled back its involvement in the exchanges, as did UnitedHealth Group. In 2016, Humana announced it would limit offering individual insurance plans to “no more than 156 counties” – a reduction of 1,195 counties on and off the ACA federal marketplace – after it stopped selling ACA plans in at least four states.

Meanwhile, overall enrollment in ACA health plans dropped this year by some 500,000 persons for a total of 9.2 enrollees and rollovers, the first drop in four years of the program.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Business, Trade Groups Ask Congress to Overturn NLRB Joint Employer Rule

In a letter to members of the House Education and Workforce Committee Tuesday, more than 50 business and trade groups asked Congress to pass legislation to overturn the joint employer standard of the National Labor Relations Board (NLRB), which holds franchisers equally responsible with franchisees for employee workplace issues.

“The president can nominate two new board members, but those nominees will require Senate approval, which takes time,” the groups wrote in their letter. “After new members are confirmed to the board, it will take more time for an appropriate case to develop so the Board can restore the ‘direct control’ joint employer standard.”

The 50-plus groups include the International Franchise Association, the National Restaurant Association and the National Retail Federation.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Acting Chair Says Much Will Remain the Same at the EEOC

Victoria A. Lipnic, named by President Trump to be acting chair of the Equal Employment Opportunity Commission (EEOC), told participants in a panel discussion that the commission will continue to enforce harassment and discrimination laws but will also focus on  expanding economic opportunity and job growth.

“It is a new day and to the extent [we can] help foster employment opportunity and economic growth … that is something that we will be focused on,” Lipnic said during a panel discussion at Seyfarth Shaw LLP Feb. 9.

She vowed that much of the work accomplished in the Obama era will remain in place, including the EEOC’s recent emphasis on bystander and civility training, and that she and the agency would continue to try to reduce the backlog of cases they’re working on.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOJ Withdraws Appeal of Transgender Bathroom Rule Injunction

On Friday, Feb. 10, the Department of Justice (DOJ) under new Attorney-General Jeff Sessions withdrew its challenge of an injunction that blocked that department’s Obama-era regulation seeking free access to bathroom-of-choice use at public schools.

At issue is what’s known as gender identity. If a boy or girl identifies as the opposite sex despite physical characteristics, he or she can choose which bathroom to use at a public institution under the earlier regulation by the DOJ and the Department of Education (DOE).

U.S. District Texas Judge Reed O’Connor blocked the regulation this past summer, but the Obama DOJ sought on appeal to limit the injunction to only those 12 states involved in the lawsuit that O’Connor used for his injunction. The Trump administration has now backed out of a scheduled Feb. 17 hearing for oral arguments.

“The parties are currently considering how best to proceed in this appeal,” the DOJ brief to the U.S. 5th Circuit Court of Appeals said.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Seeks Delay in Fiduciary Rule

Following President Trump’s executive order to review its fiduciary rule, set to take effect April 7, the Department of Labor (DOL) on Feb. 9 informed the Office of Management and Budget (OMB), which has to approve every regulation, that it wants to delay the rule’s implementation.

The delay proposal process would not start until OMB responds to the request, which is expected to take several weeks or more. The next step would be a 15-day comment period before a delay proposal is finalized, according to several sources.

The fiduciary rule requires those who sell retirement plans to put their clients’ interests first and not push investment instruments that pay the highest commission.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Price Confirmed as New Secretary of HHS

Former Congressman Tom Price, a Democrat from Georgia and trained orthopedic surgeon, was approved this morning to be secretary of the Department of Health and Human Services (HHS) by a party-line vote of 52 to 47.

Price, who has long advocated for the repeal of the Affordable Care Act (ACA), will now take over an agency that spends $1 trillion a year administering various programs, including Medicare and the ACA.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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