The Patient-Centered Outcomes Research Institute (“PCORI”) is an independent nonprofit research organization that funds comparative clinical research, among other things.  PCORI is funded through annual fees — provided for in the Affordable Care Act — paid by insurers of fully-insured health plans and sponsors of self-insured health plans, including health reimbursement arrangements (“HRAs”) that are not excepted benefits (i.e., that do not reimburse certain coverage premiums and limit contributions to no more than $1,800 annually, as indexed, among other requirements).  The PCORI fee originally applied only to health plans with plan years ending after September 30, 2012, and before October 1, 2019.  However, the Bipartisan Budget Act of 2019 extended PCORI fees through 2029.

Dental plans and vision plans that are excepted benefits (i.e., are offered through a stand-alone insurance policy or are not integrated with a health plan), are not subject to PCORI fees.  Similarly, health flexible spending accounts that are excepted benefits (i.e., the maximum benefit payable does not exceed two times the participant’s salary reduction election or $500 plus the participant’s salary reduction election and other qualifying health plan coverage is made available to participants) are also excepted benefits not subject to PCORI fees.

PCORI fees usually are due on July 31.  However, for plan years ending in 2021, the PCORI fee due date is August 1, 2022, because July 31, 2022, falls on a Sunday.

IRS Notice 2022-4 recently provided adjusted PCORI fees.  For plans with plan years that ended on or after January 1, 2021, through September 31, 2021, the fee is $2.66 per covered life.  For plans with plan years that ended on or after October 1, 2021, through December 31, 2021, the fee is $2.79 per covered life.  Covered lives are employees, spouses, and dependents covered by the health plan.  Employers who maintain self-insured health plans and HRAs (both with the same plan year) do not have to pay a separate PCORI fee for HRA covered lives.  However, employers who provide coverage through a fully-insured plan (the PCORI fee for which will be paid by the insurer) and an HRA must pay a PCORI fee based on the HRA, but covered lives are limited to employees.

The IRS has provided helpful FAQs about PCORI fees, including information about permitted methods for counting covered lives.  See PCORI Fee FAQs.  Permitted methods include:

  • Actual count method. Add the total number of lives covered under the plan for each day of the plan year and divide by the total number of days in the plan year.
  • Snapshot method. Add the total lives covered on one or more days during each quarter of the plan year and divide by the number of days used. 
  • Snapshot factor method. The number of lives covered on a date equals:  (a) the number of employees with self-only coverage and (b) the number of employees with other than self-only coverage multiplied by 2.35.
  • Form 5500 method. The method used for calculating participants for Form 5500 reporting.  

The PCORI fee is reported using IRS Form 720, Quarterly Federal Excise Tax Return.  The PCORI fee can be remitted to the IRS electronically or by mail.

 If you need more information about PCORI fees, please contact the author or the Jackson Lewis attorney with whom you normally work.

The recently published final regulation implementing last year’s massive multiemployer pension plan bailout contains a very thin silver lining, but overall, more bad news for already overburdened employers.

Last year, the Pension Benefit Guaranty Corporation (PBGC) issued its interim final rule on the process for eligible troubled Multiemployer Pension Plans (MEPPs) to apply for and obtain Special Financial Assistance (SFA) under the American Rescue Plan Act of 2021 (ARPA).  On July 8, 2022, the PBGC published its final rule, which takes effect on August 8, 2022.  The PBGC also published a fact sheet highlighting the rule’s key provisions and impact.

The PBGC still expects approximately 100 of the most critically underfunded plans (plans that would have otherwise become insolvent during the next 15 years) will instead forestall insolvency as a direct result of receiving SFA.  The PBGC’s updates decreased the projected total nominal SFA estimate from $93.98 billion to about $86.15 billion (about a $17.3 billion decrease).

As with the interim rule, the final rule details the eligibility criteria, the application process, and the restrictions and conditions associated with the MEPPs’ use of the SFA.  Similar to the interim rule, the final rule reiterates the PBGC’s view that “payment of an SFA was not intended to reduce withdrawal liability or to make it easier for employers to withdraw.”

Like the interim rule, the final rule requires a MEPP to use the “mass withdrawal interest assumptions” for a minimum of 10 years after receiving SFA.  The interest rates prescribed for a mass withdrawal often are lower (in many instances, significantly lower) than the withdrawal liability interest rate currently being used by many MEPPs.  As a result, this requirement (which is effective for withdrawals occurring after the plan year in which the plan receives SFA) is expected to increase the amount of many employers’ withdrawal liability.

However, in the final rule, the PBGC expressed concern that even these low interest assumptions may spike because of current economic conditions.  In response to its concerns about rising interest rates, the PBGC changed the rule concerning the status of SFA as a plan asset in the calculation of withdrawal liability.  Under the interim rule, the entire amount of SFA was included as a plan asset for all recipients.  The final rule changes this by including a “phase-in” approach for certain SFA recipients.  These calculations can be complex, even more so now, but the concept is fairly simple.  For a period of ten years, the amount of the SFA will be phased in as a plan asset.  This modification of the interim rule is expected to substantially increase the nominal amount of employer withdrawal liability assessed by some SFA recipients but does not change the application of the 20-year cap on payments.  This phase-in approach applies to withdrawals occurring after the plan year in which the MEPP receives SFA.  The phase-in does not apply to MEPPs that received SFA under the terms of the interim rule (e.g., before August 8, 2022) unless the plan files a supplemented application for SFA.  The final rule includes a 30-day request for additional public comments related to the phase-in withdrawal liability condition.  We anticipate that this will stimulate heated discussion and comment, especially in the employer community.

The sole silver lining for employers is the PBGC’s stance regarding the interest rate used for the withdrawal liability payment amortization schedule.  Currently, many MEPPs charge a significantly higher rate of interest on the balance of withdrawal liability due than is used to calculate the amount of withdrawal liability.  After acknowledging that this area of law is “unclear,” the PBGC concluded in the final rule that SFA recipients must use the same interest rate to determine the amortization period as they use to calculate withdrawal liability (the mass withdrawal interest assumptions.) It is expected that using these lower amortization rates will reduce the payment period for some employers.

Another noteworthy provision in the final rule includes the PBGC’s condition that MEPPs receiving an SFA over $50 million obtain PBGC approval.  At a minimum, this condition creates an additional and significant hurdle for large withdrawal liability settlements.  It remains unclear how trustees’ fiduciary duty will be affected if they and the PBGC cannot agree on a resolution.

The final rule, like the interim rule, seemingly ignores the existing and ongoing burden imposed on contributing employers, specifically as it relates to contribution rates.

In the final rule, the PBGC did not expand its previous footnote that seemed to infer a rule of general application (not just applicable to SFA recipients) was in the works.  Specifically, the PBGC previously announced it “intends to propose a separate rule of general applicability under section 4213(a) of ERISA to prescribe actuarial assumptions which a plan actuary may use in determining an employer’s withdrawal liability.” As Judge Joan Larsen acknowledged in Sofco Erectors, Inc. v. Trustees Ohio Operating Engineers Pension Fund, the PBGC has not taken up its own invitation to address withdrawal liability calculations under the Segal Blend and other manipulative funding assumptions.  The issue will remain with the Courts (at least for now.)

We will continue to monitor this dynamic situation as it develops.  Please contact the authors or the Jackson Lewis attorney with whom you normally work with any questions.

As many expected based on the draft opinion that was leaked months ago, the U.S. Supreme Court has held the U.S. Constitution does not protect the right to obtain an abortion. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022).

Dobbs overturns nearly 50 years of precedent from the Court’s decision in Roe v. Wade and Planned Parenthood Pennsylvania v. Casey on the issue.

The impact of Dobbs will vary, as states are now at liberty to enforce and create abortion legislation without restrictions arising out of constitutional protections.

What does this mean for employers?  More…

Investment, private equity, and real estate fund managers should consider becoming familiar with the complex final regulations on the preferential tax treatment of “carried interest” under Section 1061 of the Internal Revenue Code (Code) that are generally effective for taxable years beginning on or after Jan. 1, 2022.  More…

On March 29, 2022, the House of Representatives passed the Securing a Strong Retirement Act of 2022 (SECURE 2.0, HR 2954).  SECURE 2.0 is a comprehensive bill designed to increase access to retirement savings and includes a variety of provisions that would affect employer-provided retirement plans.

On June 14, 2022, the Senate Health, Education, Labor, and Pensions (HELP) Committee unanimously approved its version of SECURE 2.0, the Retirement Improvement and Savings Enhancement to Supplement Health Investments for the Nest Egg (RISE and SHINE, S. 4354) Act.

RISE and SHINE v. SECURE 2.0

The RISE and SHINE Act builds on SECURE 2.0, with some key differences.  Provisions in the RISE and SHINE Act not in SECURE 2.0 include:

  • Allowing the use of plan assets to pay some incidental plan design expenses;
  • Raising the limit on mandatory cash-out distributions from $5,000 to $7,000; and
  • The inclusion of the Emergency Savings Act of 2022 (the Emergency Savings Act). Under Emergency Savings Act, 401(k) plans could include emergency savings accounts.  Participants could make pre-tax contributions to their emergency savings accounts.  Employers could match those contributions, but the total amount in a participant’s emergency savings account could not exceed $2,500.  Participants could withdraw amounts from their emergency savings accounts generally at any time, without the requirements imposed on hardship withdrawals.

Provisions in SECURE 2.0 not in RISE and SHINE include:

  • Increasing the catch-up contribution limit;
  • Permitting matching contributions on student loan payments; and
  • Raising the required minimum distribution age.

WHAT’S NEXT? 

The Senate Finance Committee anticipates releasing its retirement reform bill by July 4.  The expectation is for the Finance Committee bill and the HELP Committee bill to merge into a final bill, which the Senate will vote on later this year.  The Senate bill will then be reconciled with SECURE 2.0, and both chambers will vote on the combined bill.

We will continue to monitor retirement reform bills as they move through Congress and will have additional updates as information becomes available.  Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

On May 2, 2022, a draft opinion from the U.S. Supreme Court case Dobbs v. Jackson Women’s Health was leaked to the press, and as a result the Court is expected to overturn Roe v. Wade and Planned Parenthood v. Casey, effectively leaving the issue of abortion rights to the states. Thirteen states currently have laws in place that will automatically ban at least some forms of abortion in their state if Roe v. Wade is overturned, and it is expected that thirteen or more additional states will quickly follow suit.  More…

Whether because of the tight U.S. labor market or flawed onboarding processes, many undocumented workers are becoming participants and accruing benefits in ERISA-governed employee benefit plans. Dealing with such plan participation adds yet another layer of administrative difficulty and legal exposure for employers who hire employees not authorized to work in the U.S.

ERISA does not exclude individuals otherwise qualifying as common law employees from plan rights and protections simply because of their immigration status.

However, although the Department of Labor (“DOL”) has affirmed that other federal statutes, such as the FLSA, protect undocumented workers, it has conspicuously failed to formally state that ERISA does too.

And the court decisions have not been consistent. For example, one federal district court opinion held in 2016 that trustees of ERISA benefit funds could enforce collection from employers of unpaid plan contributions for illegal aliens to collectively bargained welfare and pension plans. But another federal district court decision in 2009 held that the wife of a deceased undocumented worker could not recover death benefits under an ERISA group life insurance plan.

These individuals understandably desire to stay under all governmental radar, usually because they have either no social security number or a false one. As a result, tax and related difficulties arise when administering their participation in a plan.  For example, under the annual reporting requirements of the Affordable Care Act, large employers must now provide to the IRS the employee social security numbers of their group health plan participants. When an undocumented employee terminates employment, a 401(k) or another qualified retirement plan will usually need to report the distribution of accrued benefits to the employee for tax purposes.

Nontaxable rollovers are generally not elected by these employees. Taxable distributions could be properly reported on form 1099-R if the undocumented employee obtains and gives the employer a valid Individual Taxpayer Identification Number (“ITIN”). An ITIN can be used for 1099 reporting and the personal filing of taxes by undocumented employees, even though the employer may not use it for Form W- 2 reporting.

But many undocumented employees simply will not file the Form W-7 to get an ITIN. This is unfortunate since, in general, the IRS and the Social Security Administration do not share tax or wage reporting information with immigration authorities.

Of course, given the tax and other difficulties of paying compensation and providing benefits to undocumented employees many employers simply terminate an undocumented worker when they learn that the social security number is missing or false (including where the number belongs to someone else). But note that in certain circumstances, an ERISA Section 510 discrimination action could be brought by the worker, assuming the worker chose to go public with his or her illegal status.

Some employers may choose, for business reasons, to keep an undocumented individual employed but discourage plan enrollment by requiring a valid social security number.  Other employers draft a categorical coverage exclusion into the plan document for employees who are not authorized to work under U.S. immigration laws or who gain employment with false documentation.

The absence of controlling court precedents, clear DOL administrative guidance, and more accommodating federal tax reporting for actual and potential employee benefit plan participation by undocumented workers require careful consideration of the facts and circumstances of any scenario.

Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Deadline

On April 19, 2022, the Departments of Labor, Health and Human Services, and the Treasury issued additional guidance under the Transparency in Coverage Final Rules issued in 2020.  The guidance, FAQs About Affordable Care Act Implementation Part 53, provides a safe harbor for disclosing in-network healthcare costs that cannot be expressed as a dollar amount.  They also serve as a timely reminder of the pending July 1, 2022, deadline to begin enforcing the Final Rules.

Background

The Final Rules require non-grandfathered health plans and health insurance issuers to post information about the cost to participants, beneficiaries, and enrollees for in-network and out-of-network healthcare services through machine-readable files posted on a public website.  The Final Rules for this requirement are effective for plan years beginning on or after January 1, 2022 (an additional requirement for disclosing information about pharmacy benefits and drug costs is delayed pending further guidance).   The Final Rules require that all costs be expressed as a dollar amount.  After the Final Rules were published, plans and issuers pointed out that under some alternative reimbursement arrangements in-network costs are calculated as a percentage of billed charges.  In those cases, dollar amounts cannot be determined in advance.

FAQ Safe Harbor

The FAQs provide a safe harbor for disclosing costs under a contractual arrangement where the plan or issuer agrees to pay an in-network provider a percentage of billed charges and cannot assign a dollar amount before delivering services.  Under this kind of arrangement, they may report the percentage number instead of a dollar amount.  The FAQs also provide that where the nature of the contractual arrangement requires the submission of additional information to describe the nature of the negotiated rate, plans and issuers may describe the formula, variables, methodology, or other information necessary to understand the arrangement in an open text field.  This is only permitted if the current technical specifications do not support the disclosure via the machine-readable files.

Public Website Requirement

This guidance is pretty narrow and of most interest to plans, issuers, and third-party administrators responsible for the technical aspects of the disclosure.  Still, it is a helpful reminder to plan sponsors that the July 1st enforcement deadline for these requirements is rapidly approaching.  Plans sponsors should remember that these machine-readable files must be posted on a public website.  The Final Rules clearly state that the files must be accessible for free, without having to establish a user account, password, or other credentials and without submitting any personal identifying information such as a name, email address, or telephone number.  If a third-party website hosts the files, the plan or issuer must post a link to the file’s location on its own public website.  Simply posting the files on an individual plan website or the Plan Sponsor’s company intranet falls short of these requirements.  Regardless of how a plan opts to comply, enforcement begins in two months.

We are available to help plan administrators understand these requirements.  Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

In a decision of great import to the New York City hospitality industry, a federal court has held that a New York City statute mandating payment of severance benefits to certain covered hotel service employees was not preempted by ERISA. RHC Operating, LLC v. City of New York, 1:21-cv-09322-JPO (S.D.N.Y. Mar. 30, 2022).

Background

Like other major centers of tourism, the hotel industry in New York City was decimated by the COVID-19 pandemic, resulting in many closed hotels and thousands of laid-off workers.  To date, some 60% of New York City hotel workers remain unemployed.

In response to the pandemic, the federal government’s Coronavirus Aid, Relief and Economic Security Act (CARES Act ), provided funding for enhanced and extended unemployment benefits until September 2021.

Shortly after the federally subsidized unemployment benefits ended, New York City’s Severance Law  (codified as Int. No. 2397-2021) was enacted on October 9, 2021.  Under the law, hotels with at least 100 rooms must pay weekly severance of $500 per employee per week to laid-off employees for up to 30 weeks if the hotel either (1) experienced a mass layoff of 75% or more of their workforce employed as of March 1, 2020, during any 30 day period or (2) closed to the public on or after March 1, 2020, and have not yet (a) as of October 11, 2021, recalled 25% or more of its employees employed as of March 1, 2020, and (b) reopened to the public by November 1, 2021.

The obligation to pay severance ceases at the later of when the employee is recalled, or, if the hotel that experienced a closure reopens, on the date when the hotel is reopened to the public and has recalled at least 25% of its employees employed as of March 1, 2020. (For details on the Severance Law, see What You Need to Know About New York City’s Law on Severance Pay for Hotel Service Employees.)

Here, the owner of a closed hotel with significant obligations under the Severance Law sued, challenging the Severance Law on a variety of state and federal theories. Relevant here is the claim that the Severance Law is preempted by ERISA.

ERISA Preempts Laws Requiring an Employer to Establish an “Employee Benefit Plan”

ERISA supersedes any state law that relates to an employee benefit plan, including any statute that requires an employer to establish an employee benefit plan. Here, the courts have traditionally differentiated between laws that require an employer to provide employee benefits (which are generally found not preempted) and those that require an employer to establish an employee benefit plan (which are generally found to be preempted by ERISA).

The U.S. Supreme Court has held that a statute requires an employer to establish an employee benefit plan (and is therefore preempted) where an ongoing administrative program is necessary to meet the employer’s statutory obligations. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987). Courts have identified these factors as evidencing an administrative program (and therefore an employee benefit plan):

  • Whether the program requires individualized eligibility and benefit determinations;
  • Whether the program requires the exercise of managerial discretion; and
  • Whether the program shows an ongoing commitment to provide employee benefits.

Severance Law Was Not Preempted by ERISA

Applying these factors, the court had little problem finding the Severance Law did not require the establishment of an ongoing administrative scheme. Compliance with the Severance Law did not require an employer to make individualized benefit assessments. On the contrary, the court found that an employer need determine only whether a class of former employees were “laid off after March 1, 2020, due to a closure or a mass layoff.” The court characterized these as “clerical determinations” that require neither an administrative program nor the exercise of managerial discretion sufficient to turn a severance benefit into a plan. The court easily rejected plaintiff’s argument that a program is necessary to navigate eligibility decisions about an employee’s eligibility for benefits under the Severance Law, noting that the criteria (whether the employee was employed on March 1, 2020, had been employed for at least one year to perform hotel service, and was not a manager or a supervisor) could be resolved through “a basic review of the employer’s payroll system.”

In what the court described as “most significant,” the court found the Severance Law does not require an employer to make “an ongoing commitment … to provide employee benefits.” Schonholz v. Long Island Jewish Medical Center, 87 F.3d 72, 76 (2d Cir. 1996). The court found the Severance Law did just the opposite. The court described the Severance Law as envisioning a “one-time” project to address the lingering effects of a historically unique event (a global pandemic) by mandating certain severance payments for “a short span of time.” Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 566 (2d Cir. 1998). Concluding that “whatever scheme the Severance Law requires, it is not one that reflects an ongoing plan,” the court held that the Severance Law is not preempted by ERISA.

National Labor Relations Act Does Not Preempt the Severance Law

Many hotel workers covered by the Severance Law are represented by labor unions. All hotel employees (whether unionized or not) are covered by the federal National Labor Relations Act (NLRA), which protects employee participation in “concerted activity” for mutual aid and protection in the workplace. Further, the NLRA regulates the process of collective bargaining for unionized employees. Employers must bargain with the employees’ union over terms and conditions of employment, resulting in a collective bargaining agreement. The generous benefit required by the Severance Law certainly would be a subject of mandatory bargaining under the NLRA.

The plaintiff here argued the severance mandate should be deemed preempted by the NLRA. There are two theories for NLRA preemption, both rejected by the court.

Under a Garmon preemption (San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959)), a state statute that regulates activity the NLRA protects, prohibits, or arguably protects or prohibits may be preempted. The court held “the Severance Law does not regulate workers’ rights” to engage in protected concerted activity within the meaning of the NLRA. Further, although the NLRA prohibits a unionized employer from unilaterally amending terms and conditions (such as severance pay), it does not foreclose the state’s authority to regulate working terms. Here, the Severance Law obligations “merely supplement” any obligations employers would have under their collective bargaining agreements.

The plaintiff also argued the Severance Law interferes with the mechanism of collective bargaining created by the NLRA. Referred to as Machinists preemption (Lodge 76 Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Wis. Emp’t Relations Comm’n, 427 U.S. 132 (1976)), state regulation that may interfere with the “open space” intended by Congress “for the free play of economic forces” in collective bargaining may be preempted. The “crucial inquiry” applied by the court here is whether the Severance Law frustrates the effective implementation of NLRA processes. The court found no interference as the statute does not encourage or discourage economic action by the parties (strikes or lockouts) and the mandated benefits are the same for union and non-union employees. Further, the court held the severance mandate does not differ from other labor standards such as minimum wage requirements, which are not subject to preemption.

Ramifications 

Many New York City hotels have already satisfied their Severance Law obligations, either by payment or by reopening. It remains to be seen what will happen to those who have not done so.  On April 26, 2022, the plaintiff filed a notice of appeal with the United States Circuit Court of Appeals for the Second Circuit (Case No. 22-923 RHC Operating LLC v. City of New York.)  We will continue to monitor this case and report on any developments.  Meanwhile, please contact a Jackson Lewis attorney with questions.