Compliance Roundup: NY and the FFCRA Regulations & 2021 ACA Affordability Rates

08/19/2020 Written by: Nathanael Alexander, Esq.

New York Federal Court Vacates Portions of the FFCRA Leave Regulations
In a case brought before the U.S. District Court for the Southern District of New York, the New York court struck down certain aspects of the leave provisions of the Families First Coronavirus Response Act (FFCRA) issued by the DOL. At this time, it is unclear whether or not other districts and states will follow suit, but we will continue to monitor the situation closely internally. In the meantime, many employers should be aware of the outcome of this case, as it is quite possible that similar opinions will soon be issued elsewhere.
The court’s opinion invalidated the FFCRA leave rules as it pertains to the following:

  1. The requirement that an employer have work available in order for an employee to take leave under the FFCRA
  2. The requirement that employers agree to allow intermittent employee leave
  3. The requirement that employees provide documentation prior to taking leave
  4. The definition of health care providers who may be denied leave

#1 (Work Available Requirement)
Regarding the “work available” requirement of the regulations, the New York court noted that FFCRA leave should be available to employees regardless of whether or not their employer actually has any work available for them at the time. In essence, if an individual is still employed with a company then they should be granted the opportunity to partake in FFCRA leave. This more expansive interpretation will allow for more employees to take advantage of both aspects of the leave provisions (the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Act (EFMLA), respectively).
#2 (Intermittent Leave Requirement)
Under the New York court’s opinion, any employee who requires intermittent leave to care for their dependent(s) whose school or place of care is closed due to pandemic related reasons must have their request for leave granted by the employer. This will thusly allow employees to take partial weeks or even partial days off to tend to childcare, as opposed to the FFCRA rule which requires employer approval for intermittent leaves of absence.
#3 (Documentation Requirement)
The FFCRA rules noted that employers could require employees to provide documentation explaining the reasoning for their leave before they agree to allow it. The New York court ruled instead that, while employers may still require documentation, they cannot hold an employee up from beginning their leave while awaiting receipt of said documentation. Instead, the employee must provide notice as soon “as is practicable” when taking time off due to EFMLA or after the first workday of leave when taking time off under the EPSL.
#4 (Definition of Health Care Providers)
The New York court noted the broadness of the DOL’s definition of “health care providers” under the FFCRA. In an effort to streamline this expansive definition, they placed the onus on employers to exempt only employees directly capable of actually providing health care services. This modified interpretation seeks to prevent the prevalence of exemptions in the health care space so that workers only involved in health care tangentially by virtue of their workplace rather than through their actual job duties and functions are not incapable of taking leave due to exemption.
As noted above, we will continue to watch these developments closely and provide updates as necessary.
ACA Affordability Rates Set to Increase in 2021
The IRS recently announced in Rev. Proc. 2020-36 that the benchmark percentage for determining affordability of employer-sponsored health coverage under the Affordable Care Act (ACA) will rise slightly from the 9.78% standard amount used in 2020. Under the ACA’s provisions for plan years beginning in 2021, employer-sponsored minimum essential coverage will now only be considered affordable if an employee’s required contribution for the lowest-cost, self-only coverage option does not exceed 9.83% of the employee’s household income for the tax year.
As expounded upon in IRS Notice 2015-87, employers may measure affordability of their coverage using three different safe harbor tactics (Form W-2 wages, the employee’s rate of pay, or the federal poverty line (FPL)). The affordability test applies to annual premiums for self-only coverage. If an employer offers multiple health plans, the affordability test is applicable to the lowest-cost option satisfying the requirement for minimum value. The affordability percentage is indexed in the same manner as the household income percentage.
The adjusted percentage is applied on a plan year (not calendar year) basis, so non-calendar year plans will continue to use the 9.78% standard until their new plan year begins. As such, non-calendar year plans will not have the FPL safe harbor contribution limits available to them for plan years beginning on or after January 1, 2021 until HHS releases them (typically in January or February of each year). More in-depth explanation on that here.

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