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Compliance Corner

Federal Updates

Biden Administration Issues Executive Order Impacting Healthcare Costs

July 20, 2021

On July 9, 2021, President Biden signed an executive order instructing various federal agencies to review their regulations and policies with an eye towards encouraging competition, including taking action to reduce healthcare costs.

In addition to other competition concerns, the order focuses on two main sources of rising healthcare costs. The first is the rising cost of prescription drugs. According to the administration, Americans pay at least 2.5 times as much for prescription drugs as peer countries.  In order to check these cost increases, the order instructs the FDA to work with states and tribes to safely import prescription drugs from Canada and directs HHS to look for ways to increase support for generic drugs. It also instructs the FDA to issue a comprehensive plan within 45 days to combat high prescription drug prices and price gouging. Further, the order encourages the FTC to ban “pay for delay” and similar agreements (under which drug manufacturers pay generic drug producers to delay releasing cheaper versions of their drugs into the market) by rule.

The second source of rising healthcare costs is hospital consolidation. According to the administration, the ten largest healthcare systems now control a quarter of the market, allowing these systems to set higher prices for the services they provide. Although the previous administration instituted price transparency regulation, hospitals have been slow in complying with them, further obscuring the price increases they charge. The order instructs the FTC and the Justice Department to review and revise their merger guidelines to ensure that patients are not harmed by healthcare system mergers, and directs HHS to support existing hospital price transparency rules and to finish implementing surprise billing regulations.

Also of note is the order’s direction to HHS to propose rules within 120 days that allow hearing aids to be sold over the counter. HHS is also instructed to standardize plan options in the federal insurance marketplace so that people can comparison shop more easily.

Employers should be aware of these upcoming regulatory efforts to curb costs, which may impact healthcare plan premium rates.

Executive Order on Promoting Competition in the American Economy »
Fact Sheet »

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Federal Agencies Issue Interim Final Rules Implementing the No Surprise Billing Act

July 07, 2021

On July 1, 2021, HHS, the DOL and the Treasury Department released interim final rules implementing the No Surprise Billing Act (the Act) that was part of the CAA passed by Congress in late 2020. An interim final rule is a rule that an agency promulgates when it finds that it has good cause to issue a final rule without first issuing a proposed rule. Although interim rules are often effective as of the date of their publication, they will have a comment period after which the interim rule may be amended in response to public comments. In this case, the interim final rules are effective 60 days from the date they are published in the Federal Register. The 60 days serve as the comment period for the interim final rules.

Note that when this summary refers to a “plan” it includes group health plans, as well as health insurance issuers offering group or individual health insurance.

Services and Providers Affected by the Act and Interim Final Rules

The Act addresses situations wherein a person covered by a health plan receives services from providers who are not in the plan’s network. In those circumstances, the out-of-network provider may bill the patient the difference between the amount the provider charges for the service and the amount the health plan will pay for that service, a practice called “balance billing.” This often happens when a patient receives emergency care (and post-stabilization care) and is not able to choose who provides them care, but it also happens when out-of-network providers provide services in network facilities (such as hospitals and ambulatory surgical centers) and when a patient is delivered to a hospital via air ambulance. These bills can be very expensive and come as a surprise to the patient, who may have thought that the health plan covered everything. The Act and the rules impose requirements addressing these services and circumstances.

Preventing Surprise Billing

The Act and these interim final rules tackle this problem in several ways. First, they require plans that provide or cover any benefits for emergency services to cover those services without any prior authorization and regardless of any other term or condition of the plan or coverage other than the exclusion or coordination of benefits, or a permitted affiliation or waiting period. In addition, plans must cover these services regardless of whether the provider is an in-network provider or an in-network emergency facility.

The rules also prohibit balance billing for items and services covered under the Act. Specifically, there can be no balance billing for emergency services, air ambulance services provided by out-of-network providers, and nonemergency services provided by out-of-network providers at in-network facilities in certain circumstances.

Determining Consumer Cost-Sharing Amounts

For the out-of-network services covered under the Act cost sharing that is greater than in-network levels is prohibited and such cost sharing must count toward any in-network deductibles and out-of-pocket maximums.

The rule provides a method by which plans determine how much a participant must contribute towards the services covered under the Act. The amount will be determined in one of three ways. First, the plan must look to the applicable All-Payer Model Agreement, which is the agreement between CMS and a state to implement systems of all-payer payment reform for the medical care of residents of the state by allowing Medicare, Medicaid and private insurers to pay the same price for services to hospitals in that state. Second, if there is no such applicable All-Payer Model Agreement, then the plan must look to state law. Finally, if there is no state law or All-Payer Model Agreement, the plan must charge the lesser amount of either the billed charge or the qualifying payment amount, which is generally the plan’s median contracted rate (note that this is the method for determining the cost sharing amount for air ambulances).

Determining the Amount Plans Pay Out-of-Network Providers

The rules also provide plans with three methods of determining the amount they must pay out-of-network providers who provide services to their participants. As described above, the plan must first look to the applicable All-Payer Model Agreement and, if no such agreement exists, to applicable state law. If neither option is available, then the plan and the out-of-network provider must come to an agreement regarding the price. If they cannot agree, then they go through an informal dispute resolution process (IDR) to determine the amount. The agencies plan to issue additional rules describing the IDR at a future date.

Note that in cases where the plan must pay the bill before the participant meets their deductible, the plan must pay the provider or facility the difference between the out-of-network rate and the cost-sharing amount (the latter of which in this case would equal the amount of either the billed charge or the qualifying payment amount, which is generally the plan’s median contracted rate), even in cases where the participant has not satisfied their deductible.

In an example provided in the interim rules, an individual is enrolled in a high deductible health plan with a $1,500 deductible and has not yet accumulated any costs towards the deductible at the time the individual receives emergency services at an out-of-network facility. The plan determines that the recognized amount for the services is $1,000. Because the individual has not satisfied the deductible, the individual��s cost-sharing amount is $1,000, which accumulates towards the deductible. The out-of-network rate is subsequently determined to be $1,500. Under the requirements of the statute and these interim final rules, the plan is required to pay the difference between the out-of-network rate and the cost-sharing amount. Therefore, the plan pays $500 for the emergency services, even though the individual has not satisfied the deductible. The individual’s out-of-pocket costs are limited to the amount of cost sharing originally calculated using the recognized amount (that is, $1,000). Even though such payments would normally cause a high deductible health plan to lose its status, the Act states that a plan shall not fail to be treated as a high deductible health plan by reason of providing benefits pursuant to the Act.

Notice Requirements

The interim rules provide for two different notice requirements. First, under certain circumstances, an out-of-network provider can provide notice to a person regarding potential out-of-network care, obtain the individual’s consent for that out-of-network care and extra costs, and thereby avoid the procedures under these rules. However, this notice and consent exception does not apply to certain types of providers, even if they are not providing services during an emergency, such as anesthesiology or radiology services provided at an in-network healthcare facility.

The second notice is required to be posted by group health plans and health insurance issuers offering group or individual health insurance coverage. It must be made publicly available, posted on a public website of the plan or issuer, and included in each explanation of benefits. It is one page and must provide information concerning requirements and prohibitions under the Act, any applicable state balance billing limitations or prohibitions, and contact information for appropriate state and federal agencies if someone believes the provider or facility has violated the requirements described in the notice.

The interim final rules are generally applicable to group health plans and health insurance issuers for plan and policy years beginning on or after January 1, 2022. Employers who self-insure their health plans, as well as those covered by fully insured plans, should be aware of these developments.

Interim Final Rules »
Fact Sheet »
Model Notice »

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IRS Extends Tax Relief for Leave Donations to Pandemic Victims

July 07, 2021

On June 30, 2021, the IRS issued Notice 2021-42, which extends certain tax relief originally provided in Notice 2020-46. Under Notice 2020-46, which was issued on June 11, 2020, cash payments that employers make to qualified tax-exempt organizations for the relief of victims of the COVID-19 pandemic in exchange for vacation, sick or personal leave that their employees elect to forgo will not be treated as income to the employees. In addition, employees electing to forgo leave will not be treated as having constructively received gross income or wages (or compensation, as applicable). The relief provided under Notice 2020-46 applied to payments made before January 1, 2021.

Notice 2021-42 extends this relief to the end of 2021. Employers who have instituted such plans should be aware of this extension.

Notice 2021-42 »
Notice 2020-46 »

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IRS Explains Process for Addressing Employer Shared Responsibility Penalties Against Churches

July 07, 2021

On June 8, 2021, the IRS Office of Chief Counsel issued a memorandum to the Counsel of IRS Tax Exempt and Government Entities Division. The memo answers the question as to whether IRS Letter 226-J, when sent to an applicable large church employer, is a routine request from the IRS or a church tax inquiry under Section 7611.

Letter 226-J is a notification from the IRS to an applicable large employer proposing an assessment for failure to comply with the employer shared responsibility requirements (known more commonly as the employer mandate). The employer mandate applies to all types of employers, including nonprofits and churches if they had 50 or more full-time employees including equivalents in the previous calendar year. The employer may accept the proposed assessment and pay the penalty amount. Alternatively, it may challenge the proposal by correcting the previously submitted Forms 1094-C and/or 1095-C and submitting supporting documentation. If the employer does nothing, the IRS will begin procedures to collect the assessment.

Section 7611 intends to protect churches from undue interference while allowing the IRS to retain the ability to pursue individuals who inappropriately use the church form as a tax-avoidance device. Section 7611 limits a church tax inquiry to situations that determine whether a church is exempt from tax under Section 501(a) or whether a church is carrying on an unrelated trade or business or otherwise engaged in activities that may be subject to taxation. The inquiry must originate from a written, reasonable belief determination by a high-level Treasury official.

A routine IRS request, on the other hand, may include (but is not limited to) the filing or failure to file any tax return or information return by the church; compliance with income tax or FICA (Social Security) tax withholding responsibilities; information necessary to process applications for exempt status and letter ruling requests; information necessary to process and update periodically a church’s registrations for tax-free transactions (excise tax) or information identifying a church that is used to update the Cumulative List of Tax Exempt Organizations (Publication No. 78); or confirmation that a specific business is or is not owned or operated by a church. Routine requests do not trigger the Section 7611 church tax inquiry procedures.

In 2018, the Office of Chief Counsel considered whether the employer shared responsibility payment compliance program (which involves Letter 226-J) should be handled by the Section 7611 procedures when a church employer was involved. Since the law and its requirements were new at that time, the office chose to adopt a cautious approach to protect churches and applied the Section 7611 procedures to the Letter 226-J process. The office is now reversing that decision as it feels that the required involvement of a high-level Treasury official in the process is causing delayed processing of the letters and church responses. At times, this delay results in a church filing several years of incorrect forms before discovering the reporting errors. The office now feels that the result is less favorable treatment for churches.

Thus, applicable large churches that receive a Letter 226-J from the IRS should likely treat that as a routine request from the IRS and respond accordingly. It should be noted that IRS memorandums cannot be cited as precedent and only show how an IRS representative may view a different situation with similar facts.

IRS Office of Chief Counsel Memorandum AM 2021-003 »

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IRS Issues FAQs Regarding Tax Credits for Leave Under ARPA

June 22, 2021

On June 11, 2021, the IRS issued guidance related to the calculation of the employer tax credit for emergency paid sick leave (EPSL) and expanded FMLA (EFMLA). The guidance comes in the form of 123 frequently asked questions.

The FFCRA originally required employers with fewer than 500 employees to provide EPSL to employees who were unable to work (including telework) due to an order of quarantine, having COVID-19 symptoms and seeking medical care, caring for someone with COVID-19, or caring for a child whose school or day care was closed due to COVID-19. EFMLA was only available for absences related to childcare. The requirement was effective April 1, 2020, and extended through December 31, 2020. Then the Consolidated Appropriations Act changed the provision of EPSL and EFMLA to allow employers the option to provide EPSL and EFMLA from January 1, 2021, through March 31, 2021.

Finally, the ARPA extended the option to use the leave to September 30, 2021, and revised the reasons for leave effective April 1, 2021, to include absences related to receiving the COVID-19 vaccination, illness or injury related to receiving the vaccine, and awaiting COVID-19 test results. The reasons for EFMLA were also expanded to match those of EPSL and the 80 hours of EPSL reset on April 1, 2021.

Generally, an employer is eligible for a tax credit equal to paid leave wages, the cost of health insurance coverage allocable to the leave time, certain collectively bargained contributions, and the employer's share of social security and Medicare taxes associated with the paid wages.

Highlights of the new guidance include:

  • How to claim the credit, FAQ #2: Generally, employers claim the tax credit on their quarterly federal employment tax return (Form 941). However, there are two more options available. An employer may reduce their federal employment tax deposits. If there are insufficient federal employment taxes to cover the amount of the credits, an employer may request an advance payment of the credits from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19, for the relevant calendar quarter.
  • Collectively bargained contributions, FAQ #11: An employer may receive a tax credit for collectively bargained defined benefit pension plan contributions and collectively bargained apprenticeship program contributions that are properly allocable to qualified leave wages.
  • Governmental employers, FAQ #18: Effective April 1, 2021, nonfederal governmental employers are eligible for the tax credit for qualified EPSL and EFMLA. Federal governmental employers remain ineligible for the tax credit.
  • US Territories, FAQ #20: Employers in US Territories are eligible for the tax credit assuming that they otherwise qualify as an eligible employer (i.e., fewer than 500 employees).
  • Tribal government employers, FAQ #23: Tribal government employers are eligible for the tax credit assuming that they otherwise qualify as an eligible employer.
  • Nondiscrimination rules, FAQ #24: An employer who varies eligibility or benefits related to EPSL or EFMLA by favoring full-time employees, highly compensated individuals or those with more tenure would not be eligible for a tax credit.
  • Maximum daily limit, FAQ # 34: The maximum daily limit for leave related to the employee's quarantine, symptoms and vaccination is $511 per day as opposed to the $200 per day limit for leave related to the employee caring for someone else. The daily limit applies to the leave wages and any collectively bargained contributions but does not apply to the allocable qualified health plan expenses or the employer's share of social security and Medicare taxes.
  • Information requested from employee, FAQ #64: An employer may request the following from an employee for an absence related to EPSL or EFMLA: employee's name, dates of leave, statement describing reason for leave and a statement that the employee is unable to work. If the leave is related to a quarantine, the employer may request the name of the governmental entity or healthcare professional ordering the quarantine. If the leave is related to a school or childcare provider unavailability, the employer may request the name of the child, the name of the school or childcare provider, and a statement that no other suitable person will be providing care during the leave period. For leaves related to receiving a test or vaccination, an employer may request the date of the test or vaccination.
  • Timing of wage payment, FAQ #69: Wages paid after September 30, 2021, are still eligible for the credit if the wages paid are related to leave taken between April 1, 2021, and September 30, 2021.
  • State and local leave requirements, FAQ #82: If an eligible employer pays wages mandated by a federal, state or local law for leave that otherwise satisfies the requirements of the EPSLA or EFMLA, the employer is entitled to claim tax credits for those wages.

Employers with questions related to the tax credit will find this guidance helpful as it includes many detailed answers and examples.

IRS, Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021 for Leave After March 31, 2021 »

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IRS Issues Final Regulations Governing Deadline Extensions Due to Disasters

June 22, 2021

On June 11, 2021, the IRS released final regulations on the mandatory 60-day postponement of certain tax-related deadlines due to federally declared disasters, which includes a definition of “federally declared disaster.”

The 60-day timeframe is included in Code §7508A(d), which explains that the period beginning on the earliest incident date for a qualifying disaster and ending 60 days after the latest incident date for said disaster, is disregarded for qualified taxpayers. (However, in no event will the mandatory 60-day postponement period exceed one year.) For these purposes, “qualified taxpayers” include businesses that have a principal place of business in a disaster area (among other individuals).

Per the regulations, the Secretary of the Treasury must determine which deadlines for time-sensitive acts will be extended due to a federally declared disaster (if any). However, time-sensitive acts that are specifically postponed include an extension for making contributions to a qualified retirement plan or IRA, withdrawing excess IRA contributions, re-characterizing IRA contributions, and completing rollovers.

Further, the definition of “federally declared disaster” is clarified for purposes of deadline extension to include both a major disaster and an emergency declared under sections 401 and 501 (respectively) of the Stafford Act.

These final regulations are effective as of June 11, 2021, and employers should be aware of these developments.

Mandatory 60-Day Postponement of Certain Tax-Related Deadlines by Reason of a Federally Declared Disaster Final Regulation »

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DOL Confirms that Call Recordings Subject to Claims Requirements

June 22, 2021

On June 14, 2021, the DOL published Information Letter 06-14-2021, confirming that a copy of an audio recording and transcript of a telephone conversation between a participant and the plan’s insurer had to be provided to the participant.

The party requesting the DOL information letter represents a participant whose request for the audio recording was denied. The participant sought after the recording after receiving an adverse benefit determination. The insurer denied the request, arguing that the recordings were for quality assurance purposes and could not be relied upon for claims administration purposes.

The DOL did not agree with the insurer’s interpretation of this issue. ERISA Section 503 requires plans to give participants a reasonable opportunity to conduct a full and fair review of the decision denying the claim, and that would involve providing copies of all documents, records and other information relevant to the participant’s claim for benefits. For those purposes, a document or other record is relevant to the participant’s claim if the information can be characterized as one or more of the following:

  1. Was relied upon in making the benefit determination
  2. Was submitted, considered or generated in the course of making the benefit determination, without regard to whether such document, record or other information was relied upon in making the benefit determination
  3. Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5)
  4. Constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination

The DOL homed in on the second numeral above in pointing out that the requested records didn’t have to be the basis for the benefit determination in order to be required. The DOL also discussed the fact that the third reason above would make it appropriate for a call recording to be provided since a quality assurance call would demonstrate compliance with the administrative processes and safeguards in place.

Finally, the DOL confirmed that nothing in the claims regulations indicates that only paper records may be requested. So, the fact that the requested record was an audio file was of no consequence in the analysis of whether the record needed to be turned over.

Accordingly, pursuant to ERISA’s claims regulations, a recording or transcript of a conversation with a claimant would be required to be provided to that claimant if they request it. Any plan administrator that receives such a request should likely honor it unless they receive other advice from legal counsel.

Information Letter 06-14-2021 »

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GAO Issues Report on ERISA Enforcement Efforts

June 22, 2021

On May 27, 2021, the Government Accountability Office (GAO) publicly released a report on the Employee Benefits Security Administration’s (EBSA’s) ERISA enforcement activities. The report followed a fifteen-month study focused upon the EBSA’s management of and efforts to improve the enforcement process, as well as the immediate and long-term challenges presented by the COVID-19 pandemic. It was the first GAO report issued on EBSA enforcement since 2007.

The EBSA is the DOL agency primarily responsible for protecting the rights of participants in employer-sponsored group health and retirement plans. As of fiscal year 2020, this included about 154 million participants in 722,000 retirement plans and 2.5 million health plans with combined assets of over $10.7 trillion. The EBSA’s ERISA enforcement activities are largely performed by investigators in its 10 regional offices, with policy direction, guidance and oversight provided by the EBSA national offices.

First, the recent GAO report explains that the EBSA generally focuses enforcement efforts in three broad categories of ERISA requirements that apply to both retirement and health plans and their service providers: participant disclosures (e.g., SPDs), plan reporting (e.g., Forms 5500) and fiduciary responsibilities. Enforcement is primarily through civil investigations of plans; two-thirds of such investigations are initiated from leads identified by EBSA staff.

According to the EBSA data, retirement plan investigations typically involve an examination of plan-related financial transactions to assess whether the fiduciary is managing plan assets prudently and in the best interest of participants. Health plan investigations often focus on enforcing federal health plan coverage and availability requirements, and also frequently target financial solvency and fraud in multiple employer welfare arrangements. For fiscal year 2021, the EBSA’s operating plan includes an investigative focus on health plans’ compliance with mental health parity requirements and reimbursement rates, autism treatment limitations, denials of claims for emergency services, and fees paid to insurance companies and other service providers, among other things.

Generally, the EBSA encourages plans to voluntarily remedy identified violations. Remedies may include restoring plan or participant assets, paying erroneously denied claims and making necessary administrative changes. Most investigations are settled at the regional level; however, unresolved civil or criminal cases may be referred to the DOL’s Office of the Solicitor or the Department of Justice, respectively. In fiscal year 2020, approximately 84% of investigations were civil and 16% criminal in nature, resulting in over $3 billion in payments restored to plans and participants.

Next, the GAO report observes that the EBSA has used a variety of approaches to improve its investigative processes. These strategies include improved targeting techniques (to identify plans for investigation) and prioritization of cases by their potential to affect many participants and recover significant assets, such as restored retirement plan contributions or payments for incorrectly denied medical claims. (Prior to 2013, enforcement efforts focused on the number of cases closed, rather than the impact of such cases.) As a result, greater resources are allocated to major cases, national enforcement projects and evolving issues. Additionally, to ensure the consistency and quality of enforcement efforts across regions, the EBSA provides all employees with ongoing training, written protocols and management oversight.

Finally, the report addresses the numerous challenges for benefit plans and the EBSA that resulted from the COVID-19 pandemic. For example, one cited initial challenge for plan administrators was the implementation of COVID-19 relief measures (e.g., under the FFCRA and CARES Act) without regulations. Guidance subsequently issued by the EBSA in the form of FAQs and notices largely addressed these concerns. However, the report also recognizes the ongoing COVID-19 issues faced by plan sponsors, such as the financial difficulties of paying plan health claims with reduced cash flows, the administrative burdens created by the COVID-19 deadline extensions, and the challenges of finding retirement participants entitled to benefits who terminated employment during the pandemic.

The report incorporates numerous charts that reflect the EBSA organizational structure and statistical enforcement data, amongst other items. The appendices provide historical information on national and regional enforcement projects from 2011 through 2021 and common ERISA violations identified in investigations.

Employers that sponsor group health and/or retirement plans may find the GAO report particularly insightful in understanding EBSA ERISA enforcement approaches and current priorities.

GAO Report on Enforcement Efforts to Protect Participants’ Rights in Employer-Sponsored Retirement and Health Benefit Plans »

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IRS Letter Addresses Deductibility of In Vitro Fertilization Expenses

June 08, 2021

On April 9, 2021, the IRS released a private letter ruling regarding the deductibility of medical costs and fees arising from in vitro fertilization (IVF) procedures and gestational surrogacy.

The agency issued the letter in response to a request by a married male same sex couple (the “taxpayers”) planning to have a child using the sperm of one spouse and the egg of the other spouse’s sister, with an unrelated surrogate carrying the child to term. The couple sought a ruling as to whether they could deduct the expenses for the sperm donation and freezing, egg retrieval, and IVF process, as well as the childbirth, medical and legal expenses related to the surrogacy.

Code Section 213 permits a taxpayer to deduct expenses paid for medical care that exceed 7.5% of the taxpayer's adjusted gross income. Medical care includes amounts paid for the “diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In the ruling, the IRS emphasizes that expenses eligible for the Code Section 213 deduction are limited to those of the taxpayer, the taxpayer’s spouse and/or the taxpayer’s dependent. Recent tax court precedents are cited in support of this position.

Accordingly, the letter concludes that expenses involving the egg donation, IVF process and gestational surrogacy are not deductible expenses for the taxpayers. I.e., these costs incurred by third parties are not incurred for treatment of a disease or for the purpose of affecting any structure or function of the taxpayers’ bodies.

However, the medical costs paid for medical care directly attributable to the taxpayers, including the sperm donation and sperm freezing, are deductible medical expenses (subject to the above noted adjusted gross income limitation).

Although the ruling technically only apples to the requesting taxpayers, employers who offer IVF benefits may want to be aware of the recent IRS release.

Private Letter Ruling 202114001 »

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EEOC Adds New FAQs Regarding COVID-19 Vaccinations

June 08, 2021

On May 28, 2021, the EEOC updated its "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" webpage. The revised guidance confirms that an employer may require all employees returning to a physical worksite to be vaccinated for COVID-19. However, the employer must provide reasonable accommodation for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice or observance.

An accommodation is deemed reasonable if it does not create undue hardship for the employer. Examples of reasonable accommodations include an unvaccinated employee wearing a face mask at the worksite, working at a social distance from coworkers or nonemployees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework or accepting a reassignment.

An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination. This could include certification from a pharmacy, public health department or other healthcare provider. However, the incentive cannot be so substantial as to be coercive. Unfortunately, the EEOC did not provide greater detail or examples of acceptable incentive amounts or limits.

Finally, all employee documentation related to vaccinations must be maintained confidentially.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws »

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