Paolo M. Pasicolan

As is now well known both inside and outside of the legal community, the Supreme Court of the United States recently decided Dobbs v. Jackson Women’s Health Organization, where the Court analyzed a Mississippi law that restricted pre-viability abortions. The Supreme Court upheld the Mississippi statute and overturned the constitutional right to abortion established in the 1973 landmark case, Roe v. Wade. The Court emphasized that the precedent set in Roe and affirmed in Planned Parenthood v. Casey was “egregiously

There’s a legal answer and a practical one. Because we’re lawyers, let’s start with the legal answer. Yes, an employer can offer employees incentives to get vaccinated. But doing so potentially creates a wellness program. And wellness programs are subject to several federal laws—HIPAA, the ADA, and GINA, and possibly Title VII (religious discrimination) and the FLSA—which make legal compliance tricky. Under HIPAA, a vaccine incentive is likely to be considered a health-contingent wellness program. This kind of program is required to,

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

The American Rescue Plan Act of 2021, signed on March 11, 2021, requires employers to fully subsidize COBRA for certain eligible individuals. Eligible individuals consist of employees and their spouses and dependents who lost coverage in November 2019 or later due to the employee’s involuntary termination of employment (other than for gross misconduct) or reduction of hours. No subsidy is required for employees who voluntarily terminate employment or those who become eligible for Medicare or other employer’s group health plan. Employers

Sometimes, a retirement plan is required to distribute a missing participant’s account balance into a state’s unclaimed property fund. Until recently, it was unclear whether this distribution is subject to withholding of federal income tax and how this distribution is supposed to be reported to the IRS. The IRS finally cleared up both issues by ruling that (1) the total amount distributable (i.e., the entire account balance) is subject to withholding of federal income tax, and (2) any distribution of $10

On July 27, 2020, a new rule went live, making it easier for retirement plans to communicate with participants electronically. This new rule modernized an existing rule that was becoming obsolete. Existing Rule Employer benefit plans must disclose certain information to participants. Information can be delivered electronically if delivery is calculated to ensure actual receipt. Receipt is presumed if information is sent to participants who have e-mail access at their workplace and who actively consent to electronic delivery, subject to additional conditions. Specifically, electronic

One of the few good things about a pandemic is that it can trigger the human instinct to share. If you are thinking about adopting or expanding a leave-sharing or PTO donation program, remember to consider the tax consequences to employees. The simplest form of a leave-sharing program is where one employee donates PTO to another employee or an employer-managed PTO bank. The donated PTO can be used by another employee for any reason or for certain reasons specified by the

Definitely maybe. Severance benefits are subject to ERISA if they comprise a “plan, fund or program.” The Supreme Court held that there is a plan, fund or program for severance benefits if (1) payment requires an “ongoing administrative scheme,” or (2) benefits are more than a one-time, lump-sum payment triggered by a single contingency that may never happen. On what is an ongoing administrative scheme, courts have been notoriously inconsistent about both the minimum required benefit (or combination of benefits) and

As many of you know, an employer does not have to offer COBRA health insurance coverage to an employee who’s discharged for “gross misconduct.” Unfortunately, COBRA does not define “gross misconduct,” and courts are divided on what it means. Can you guess if the following facts comprise gross misconduct? Nurse N’s primary duties include giving injections, supplying medications, and assisting with examinations at a family care doctor’s office. Late one afternoon, a patient arrived to receive a Toradol injection, an anti-inflammatory

When a company negotiates either an employment agreement or separation agreement with an employee, the employee benefits offered are typically a large piece of the total package. However, the terms of these types of agreements are subject to various federal and state laws that can be difficult to navigate and coordinate. Examples include Section 409A of the Internal Revenue Code (the “Code”) and continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). As such, careful drafting

The Tax Cuts and Jobs Act added a new tax deferral to encourage private corporations to grant more equity awards. If you’re thinking about it, consider whether the juice is worth the squeeze. The Juice One reason private companies don’t grant equity awards is that many employees are unable or unwilling to write a check for the taxes due when shares are issued. Employees with stock options usually prefer waiting until the company is sold or goes public, when their options can be cashed

It all started with good intentions. On May 10, 2016, Maryland approved the Contraceptive Equity Act. One purpose of the act is to require Maryland’s health insurers to cover vasectomies without charging deductibles, effective January 1, 2018. Sounds unobjectionable enough, right? Here’s the problem: requiring free vasectomies conflicts with the federal tax requirements of a health savings account (HSA). An HSA (offered in tandem with a high deductible health plan) must have minimum deductibles for coverage, other than preventive care. And there’s a list of what counts as preventive

Human-resource professionals are a notoriously organized and efficient bunch. So it’s no surprise that we are often asked, “How long should I keep benefit plan records?” There’s no simple answer, unfortunately, and a record-retention policy needs careful consideration of the rules underlying the policy. IRS’s Statute of Limitations The IRS advises that you keep records long enough to respond to an audit. A plan is open to IRS audit, according to Section 6501 of the Internal Revenue Code, for three years after the filing

If you’ve had better things to do, you might only be vaguely aware that the new fiduciary rule becomes effective on June 9, 2017. We’ve written about this before (here and here), but a quick refresher might be helpful as the deadline looms. For employers, the June 9 deadline should be a nonevent, other than an opportunity to review HR procedures and relationships with vendors. New Fiduciaries An employer, as sponsor of a retirement plan, has always been a fiduciary subject to duties imposed by ERISA. This