On December 30, 2021, the Minnesota Department of Health (MDH) and the Minnesota Department of Commerce (Commerce) (jointly, the “departments”) issued Administrative Bulletin 2021-3. The bulletin states that the departments prohibit entities that deliver or issue individual or group health policies in the state from discriminating against individuals because of their gender identity or expression. These entities cannot discriminate in the provision of health insurance benefits or in the availability of health insurance coverage.

The departments also announced that they would disapprove forms filed by insurers if there are exclusions on coverage for medically necessary treatment for gender dysphoria and related health conditions, including gender confirmation surgery — including medically necessary procedures to conform secondary sex characteristics to a person’s gender identity or expression. In addition, the departments request that carriers provide attestations that they do not cover conversion therapy.

These prohibitions apply to all insurance companies, fraternal benefit societies, hospital service corporations, non-ERISA employer group plans, managed care organizations, medical service corporations and healthcare centers that deliver or issue individual and group health insurance policies in Minnesota. Accordingly, employers with plans regulated by the state should be aware of this bulletin.

Administrative Bulletin 2021-3 »

On July 19, 2021, the Duluth City Council passed File No 21-023-O, an amendment to the city’s Earned Sick and Safe Time ordinance. The mayor signed the amendment shortly thereafter and it will be effective on August 19, 2021. The original ordinance was discussed in the November 26, 2019, edition of Compliance Corner, as well as the April 14, 2020, edition. You can find those articles here.

The amendment allows covered employees to use the sick and safe leave provided by the ordinance when their employers close for reasons relating to public health. In addition, the amendment requires employers to include their polices related to this sick and safe leave in their employee handbooks, to display or provide a city-created poster to employees, or provide a company-created notice that advises employees of their rights under the ordinance. It also allows the city to order employers to provide employees with written notice of a violation and the corrective action taken.

Employers with employees who work at least 50% of their time in Duluth should be aware of this ordinance and its amendment.

File No. 21-023-O »

In response to the changes made to the premium tax credits by the American Rescue Plan Act, the state’s health insurance marketplace (MNsure) has extended its special open enrollment period (SEP) to July 16, 2021. This extension is occurring since premium tax credits have lowered premiums for a greater number of people; the state anticipates that the demand to enroll on the marketplace will rise.

While the creation of the SEP will affect individuals that will enroll on the marketplace, employers should be mindful of this extension in case there are employees who seek to drop coverage under their plans to take advantage of the SEP. Specifically, the permissible qualifying event for a revocation due to enrollment in a qualified plan will allow an employee to drop their employer’s plan mid-year if they intend to enroll in the marketplace. Unless future legislation or guidance indicates otherwise, applicable large employers are still required to offer full-time employees minimum value coverage satisfying one of the affordability safe harbors.

MNsure Press Release »

On June 10, 2020, the Minnesota Supreme Court upheld the Minneapolis Earned Sick and Safe Time Ordinance in Minn. Chamber of Commerce v. City of Minneapolis. At issue in the case was 1) whether the ordinance is in conflict with state law; and 2) whether it violates the extraterritoriality doctrine because it applies to employers who are located outside of Minneapolis who have employees that work in Minneapolis.

As background, the ordinance requires employers to provide sick and safe time to employees who work within Minneapolis, and applies to all employees who work in Minneapolis, regardless of whether the employer is based in Minneapolis. Further, employees who work in Minneapolis for at least 80 hours a year are entitled to at least one hour of earned sick and safe time for every 30 hours worked in a calendar year (with a maximum of 48 hours).

The court affirmed that the ordinance was not preempted by state law and that the ordinance can be applied to employers who are located outside of the city (given that the primary purpose and effect of the ordinance is to regulate activity within Minneapolis). While the outcome of the case did not result in any changes impacting the ordinance, employers with employees located in Minneapolis should be aware of this development and ensure that they comply with the safe and sick time ordinance.

Minn. Chamber of Commerce v. City of Minneapolis, No. A18-0771 »

Issued in April 2020, Saint Paul’s Labor Standards Enforcement and Education Division created an FAQ resource regarding earned sick and safe time. The FAQ resource addresses COVID-19 and the city's earned sick and safe time ordinance. Highlights include:

• Explanation that the Saint Paul Earned Sick and Safe Time (ESST) ordinance requires employers to provide earned sick and safe time to employees who work in Saint Paul. Sick time refers to paid time off for medical reasons (e.g., physical illness, mental injury, medical appointments seeking diagnosis), while safe time refers to paid time off for an absence related to domestic abuse, sexual assault or stalking.
• Employees may use both sick time and safe time for their own reasons or for reasons of a family member.
• ESST can be used if an employee’s place of work or child’s school/daycare is closed due to reasons related to COVID-19. However, only if such closure is due to an official order.

The above highlights are not exhaustive. Employers with employees in St. Paul should be aware of this resource and review the Frequently Asked Questions for additional guidance.

Earned Sick and Safe Time – COVID-19 Frequently Asked Questions and Answers »

On March 15, 2020, the City of Duluth released Frequently Asked Questions as guidance for employers regarding Duluth’s Earned Sick and Safe Time (ESST) law. In addition, on March 18, 2020, the City of Minneapolis issued an FAQ regarding COVID-19 and the Sick and Safe Time Ordinance.

As background, Duluth’s ESST ordinance guarantees paid time off for certain types of employees that work within the city, and protects certain activities, including coronavirus screening; providing and receiving care due to coronavirus symptoms or infection; and testing or quarantine following close personal contact with a coronavirus infected or symptomatic person. The city’s FAQ provides guidance regarding which employers must comply with the ordinance (any individual, corporation, partnership, association, nonprofit organization or group of people that has five or more employees, whether or not all of the employees work in the city) and when an employee can use sick time (for an absence from work resulting from the employee’s own mental or physical illness, injury or health condition, including the need for medical diagnosis, care, treatment or preventative medical care), among other topics.

Additionally, Minneapolis’ Sick and Safe Time ordinance protects employees’ accrued sick and safe time hours for use due to coronavirus symptoms, testing or infection. Further, protection extends to the employee and the employee’s care of a covered family member. Among other topics, the FAQs explain that employers may (but are not required to) allow employees to use accrued sick and safe time when employees’ hours are reduced (but the workplace has not been closed by a public official). Further, sick and safe time can be used for school or childcare closures, but cannot be used for preemptive self-quarantine.

Employers with employees in Duluth or Minneapolis should be aware of these resources and review the FAQs for additional guidance.

Duluth FAQs: Earned Sick and Safe Time and COVID-19 »
Minneapolis FAQs: COVID-19 and the Sick and Safe Time Ordinance »

On March 20, 2020, MNsure announced a special enrollment period (SEP) for qualified, uninsured Minnesota residents as a result of the COVID-19 public health crisis. This 30-day special enrollment period runs from March 23, 2020, through April 21, 2020, and individuals who are currently without insurance can enroll via MNsure.org.

As background, generally, individuals can only enroll in state marketplace coverage during open enrollment or an SEP. MNsure created an SEP (in addition to other SEPs available) in response to the growing COVID-19 concerns to best assist uninsured Minnesota residents.

Important to note, individuals who enroll after April 1, but before 11:59 p.m. on April 21, will have a retroactive coverage start date to April 1, 2020.

Employers should be aware of these developments and should communicate with employees accordingly.

3.20.2020 Press Release »
COVID-19 Emergency Special Enrollment Period »

On March 13, 2020, the Department of Commerce and the Department of Health (the “Departments”) issued a Memorandum to Health Insurance Carriers Related to Coronavirus (COVID-19) to address the pandemic. Noting the importance of health plans related to the public health emergency, the Departments' requested that health carriers (in the fully-insured market):

• Eliminate all cost sharing for COVID-19 testing, including costs related to an office or urgent care visit to be tested.
• Limit or eliminate cost sharing for treatment for COVID-19 for in-network providers. To this end, insurers should ease other requirements (such as prior authorization or precertification requirements for COVID-19 treatment).
• Allow out-of-network care when in-network is unavailable to provide services.
• Expand the availability of telemedicine services.
• Provide one-time refill of covered prescription medications prior to the expiration of the waiting period between refills.

Employers should be aware of these developments. While the above relates to fully insured plans, the Departments strongly encourage self-insured plans to follow the same guidance as outlined in the memorandum.

Memorandum to Health Insurance Carriers Related to COVID-19 »

On May 20, 2019, Gov. Walz signed SF278. The law took effect January 1, 2020, and requires pharmacy benefit managers (PBMs) doing business in the state to become licensed by the state. Licensure requires that PBMs disclose upon request to health plan sponsors information concerning rebates and other financial arrangements negotiated by the PBM when negotiating the prices that health plans pay drug manufacturers. Failing to comply with this and other requirements could subject PBMs to fines and other penalties.

The law imposes no new employer compliance obligations, but employers who sponsor health plans should be aware of this law, especially when dealing with PBMs doing business in the state.

PBM Licensing Law »

On October 3, 2019, the Duluth City Council updated its administrative rules relating to Ordinance No. 10571, which the council adopted on May 30, 2018, and which takes effect on January 1, 2020. The ordinance requires private employers to provide paid sick and safe leave to employees.

The new administrative rules clarify some of the language in the ordinance. As discussed in the June 12, 2018, Compliance Corner article on the law, the Duluth city ordinance requires private employers with at least five employees to provide employees with one hour of paid leave off for every 50 hours on the job, for up to 64 leave hours a year for employees that: 1) work in Duluth more than 50% of their working time in a 12-month period; or 2) are based in Duluth, spend a substantial part of time working in Duluth, and don't spend more than 50% of work time in a 12-month period in any other particular place.

The rules clarify that a “substantial part of time” means more than 50% of work time. The rules also clarify that commuting to work, as well as time worked at home, counts as hours worked in Duluth.

In addition to these clarifications, the rules create a six-factor test to determine whether a worker is an employee (who is eligible) or an intern (who is not eligible) and defines seasonal employee. They also expand on the ordinance’s treatment of substantially equivalent leave policies maintained by employers, including non-traditional paid leave policies such as unlimited leave.

The rules go on to formalize existing FAQ postings by the city concerning the accrual of sick and safe time while a worker works overtime, or takes vacation time or sick and safe time. The rules also provide more detail on how employers provide notice of the ordinance, as well as procedures a worker should follow when requesting sick and safe leave or when they notify the employer that they are taking the leave, including appropriate supporting documentation.

In addition, the rules state violations may incur administrative penalties or the suspension or revocation of city-issued licenses. Finally, the rules state that the leave can run concurrently with other state or federal leave law, such as FMLA.

Since the effective date for the ordinance is fast-approaching, employers should make sure that their leave policies reflect this new guidance.

City of Duluth Administrative Rules »