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President Donald Trump is just 21 days into his second term in office, but you might already be struggling to keep up with the number of changes and policy shifts coming from the new administration. While new presidents are typically judged based on their actions in their first 100 days, Trump’s whirlwind first three weeks warrant taking a pause to make sure you’re caught up on all the changes impacting key workplace issues. Major policy shifts have already affected immigration, DEI programs, equal employment opportunity, labor relations, and artificial intelligence. Here’s your 21-day recap:
1. Immigration
2. Affirmative Action and Diversity, Equity, and Inclusion (DEI)
3. “Gender Ideology” and the Equal Employment Opportunity Commission
4. Labor Relations
5. Artificial Intelligence
Conclusion
President Trump’s second term kicked off at a rapid pace, and we expect to see a lot more to come during his first 100 days and beyond. We will continue to monitor developments related to all aspects of workplace law.
Courtesy of Fisher Phillips
As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers. The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.
What Are Wearable Technologies?
Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:
Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions. Exoskeletons are also being used to provide physical support and reduce fatigue.
Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.
Key Considerations From the EEOC Guidance
The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:
This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few.
Courtesy of Jackson Lewis P.C.
Two bills—the Employer Reporting Improvement Act and the Paperwork Burden Reduction Act—were signed into law on December 23, 2024. These two Acts change the requirements for distributing IRS Forms 1095-B and 1095-C to all employees and covered individuals.
Background
Under the ACA, all employers (or health insurers for fully insured plans) were required to report information about any health coverage offered to their employees via Forms 1095-B or 1095-C. These paper forms are also required to be filed with the IRS, covered by the IRS Form 1094-B or 1094-C.
Based upon data from the ACA’s Exchange/Marketplace and these Form 1095s, the IRS would determine if any Employer Shared Responsibility Payments (not-so-affectionately known as the “penalties”) were due and send the employer a letter (IRS 226J letter) asking for any clarification before the proposed penalties were assessed. Employers only had 30 days from the date of the letter to respond, in many cases noting a coding error on the Form 1095. Since the IRS used the US mail, often the employer had very few days to research the reason for the proposed penalty and to respond accordingly. If the response from the employer was late, the IRS could not only assess the proposed penalty, but additional penalties as well.
Further, the period for assessing and collecting the penalties had no statute of limitations which would otherwise potentially limit the liability for older assessments.
Changes Under the Two Acts
The two Acts will make several important changes that will improve the reporting and enforcement process for plan sponsors.
Forms 1095-B and 1095-C. Plan sponsors and health insurance providers for fully insured plans are no longer required to send these forms to all eligible (full-time) employees and covered individuals. Instead, only if an employee requests a form must one be provided by the later of January 31st of the year following the coverage year or 30 days after the date of the request. However, note that in order to take advantage of this new rule, plan sponsors must provide a notice to employees letting them know they have the right to ask for a 1095 form. There is no model notice yet, but employers can likely make a good-faith effort to draft such a notice.
Electronic Distribution of Requested Form. If the employee has previously given their consent to receive the form electronically (and as long as they haven’t revoked that consent), the 1095 can be provided electronically. While we don’t yet have guidance on this new provision, a good-faith effort—such as including a consent to receive the Form electronically on the request form—may suffice.
Extension of Response Time to Penalty Letters. Plan sponsors will now have 90 days, not 30, to respond to a proposed penalty assessment letter from the IRS before any further action is taken. Given our history assisting employers with responding to these IRS 226J letters, most often the proposed penalty was due to a coding error or missed employee on the 1095, not a failure to offer affordable minimum essential coverage. The change will allow employers reasonable time to research the issue and respond to the IRS in a timely manner.
Statute of Limitations on Penalty Assessments. Instead of an open-ended period to assess penalties, there is now a six year period for collecting any penalties from employers, starting from the later of the due date for the 1095 Forms or the actual filing date, whichever is later.
Important Note. The 1095-B or 1095-C must still be prepared and remitted to the IRS with the corresponding Form 1094. These two Acts only change the distribution requirements to employees and covered individuals in group health plans.
Effective Date. The effective date of the Paperwork Burden Reduction Act is for all calendar years after 2023. The effective date for the Employer Reporting Improvement Act is for returns due after December 31, 2024. Thus, most employers will be relieved of the IRS Form 1095-B and 1095-C requirements for distribution to employees for returns that are due January 31, 2025 for the 2024 year.
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases, and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
Plan sponsors that offer high-deductible health plans (HDHPs) paired with Health Savings Accounts (HSAs) will no longer be permitted to cover telehealth services before the deductible is met, as Congress failed to extend the safe harbor allowing this benefit as part of the American Relief Act of 2025, the law passed in late December to fund the federal government for the next few months. The provision may be taken up in the next Congress, but current rules expire for plan years beginning on or after January 1, 2025.
The telehealth safe harbor for HSA-qualified HDHPs was originally created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act permitted HDHPs to cover telehealth or other remote-care services before the plan’s deductible is met, effective on March 27, 2020 for plan years beginning on or before December 31, 2021.
Legislation enacted in March 2022 extended this flexibility from April 1, 2022 through December 31, 2022 and subsequent legislation further extended the telehealth flexibility for plan years beginning after December 31, 2022, and before January 1, 2025.
President Biden signed the American Relief Act of 2025 on December 21, 2024. The law funds the government through March 14, 2025, and provides disaster relief appropriations and economic assistance to farmers. However, the bill does not include an extension of HDHP telehealth flexibility.
Congressional leadership had originally negotiated a bipartisan bill that would have extended the HDHP telehealth flexibility rule for an additional two years.
Sponsors of HDHPs that have HSAs with plan years beginning before January 1, 2025 may continue to reimburse individuals for telehealth services before the deductible for the remainder of that plan year. However, for HDHPs with a plan year of January 1, 2025 or later, plans may not reimburse individuals for telehealth services before they meet their deductible. If a plan permits reimbursement for telehealth services before the deductible is met, the HDHP would not be HSA-qualified, and therefore participants could not contribute to an HSA for that plan year.
Consequently, plans should assure that telehealth services provided before the deductible is met in an HDHP are subject to cost-sharing, unless the service is for a preventive benefit required under the ACA (e.g., a telehealth visit to obtain a prescription for a preventive service).
Telehealth services continue to be a popular benefit. Plan sponsors should contact their health plan administrator to determine how they will implement telehealth benefits in an HDHP and whether they will be communicating changes to plan participants. In some cases, plan documents may need to be amended concerning telehealth coverage.
It is possible that the telehealth provision could be revived in the new Congress, although it is likely those efforts would take several months.
However, it is unclear when or whether there will be action on the proposed legislation. Plan sponsors should monitor developments on this issue in the next Congress.
The Internal Revenue Service (IRS) announced the indexed dollar amount for the Patient Centered Outcomes Research Institute (PCORI) fee. For plan years that end on or after October 1, 2024 and before October 1, 2025, the fee is $3.47 per covered life. Issuers of specific health insurance policies and plan sponsors of applicable self-insured health plans are required to pay the PCORI fee.
Self-Insured Plans Subject to the Fee
The PCORI fee applies to self-insured plans providing accident and health coverage, including retiree-only plans. State and local governments sponsoring self-insured plans are also subject to the fee. The PCORI fee does not apply to self-insured plans that provide: 1) only excepted benefits (e.g., limited scope dental); 2) expatriate plans; 3) employee assistance programs; 4) disease specific management programs; or 5)wellness programs that do not provide significant medical treatment benefits.
PCORI fees may also apply to health reimbursement arrangements (HRAs) and health flexible spending accounts (health FSAs) that are considered self-insured health plans; however, these plans are subject to special rules. Archer Medical Savings Accounts and Health Savings Accounts (HSAs) are exempt from the fee.
Calculating and Paying the PCORI Fee Amount
Sponsors of self-insured plans must make annual PCORI payments by July 31 of the calendar year immediately following the last day of the applicable plan year. The PCORI fee is based on the average number of covered lives during the plan year.
Plan sponsors and insurers use IRS Form 720 for the second quarter to report the amount of their PCORI fee. Payments may be made through the IRS Electronic Federal Tax Payment System (EFTPS). For the most recent versions of Form 720 and associated instructions, please see the IRS Form 720 site.
Both the IRS and the three agencies tasked with issuing rules under the Affordable Care Act (“ACA”) have released guidance on new items considered preventive and medical care, as well as some further requirements around existing items plans are required to cover. Some of the guidance related to high deductible health plans (“HDHPs”) is effective retroactively presumably because some HDHPs may have already covered those items believing them to be preventive care.
Additional Medical and Preventive Care
In IRS Notice 2024-71, the IRS created a safe harbor stating that male condoms will be considered medical care for tax purposes. Among other results, this means that health plans, health flexible spending arrangements (“Health FSAs”), health reimbursement arrangements (“HRAs”), and health savings accounts (“HSAs”) can pay for or reimburse the cost of male condoms on a tax-free basis. The notice doesn’t specify an effective date, but presumably it is effective immediately.
However, for them to be preventive care for purposes of high deductible health plans and HSA purposes, separate guidance is required. As a reminder, for an individual to contribute to an HSA, they must be covered by a HDHP and not be covered by other non-permitted health insurance. Therefore, even though the IRS has now said that male condoms are medical care, they cannot be covered before the deductible under an HDHP without additional guidance.
Fortunately, the IRS also issued Notice 2024-75. It includes that needed guidance and some other items as well. Specifically, HDHPs can now cover the following items as preventive care before the individual satisfies the deductible:
The retroactive dates were presumably intended to address concerns that plans had already covered some of these items. However, to be clear, HDHPs are not required to cover these items pre-deductible, but this guidance allows them to do so without affecting a participant’s ability to contribute to an HSA.
FAQs part 68
In addition, the Departments of Health and Human Services, Labor, and Treasury issued guidance on some existing items plans are required to cover in their sixty-eighth edition of ACA FAQs.
For plans subject to the Women’s Health and Cancer Rights Act (“WHCRA”), the FAQs clarify that plans are required to cover chest wall reconstruction with an aesthetic flat closure, if elected by the patient in consultation with the attending physician. Under WHCRA, plans are generally required to cover reconstruction of the breast on which a mastectomy was performed, and surgery and reconstruction of the other breast to produce a symmetrical appearance. The guidance now confirms that this requirement includes providing an aesthetic flat closure, where extra tissues in the breast area are removed, and the remaining tissue is tightened and smoothed out to create a flat chest wall. Most plans are subject to WHCRA, including governmental plans, unless they are self-funded and have opted out. Church plans that have elected not to be subject to ERISA are not subject to WHCRA.
The FAQs address some common coding practices for items that are deemed to be medical care. The specifics and nuances of this guidance are more relevant to carriers or third party administrators (“TPAs”). However, in general, if an item is coded as preventive, it should be treated as such unless there’s additional information in the claim that would lead the plan or carrier to believe it should not be treated as preventive. If an item or service is not covered as preventive when it should be, participants and beneficiaries have the right to appeal under the relevant plan claims procedures.
Takeaways
Employers should work with their insurance carriers and TPAs to determine whether and how they plan to cover the additional permitted items for health FSAs, HRAs, and HDHPs. They should also address the coverage of the additional mandatory items from the FAQ guidance. Changes to plan documents, summary plan descriptions, or other communications may be required.
US District Court in Texas Sets Aside Overtime Rule
A rule that was set to dramatically boost the salary threshold for the so-called “white collar” overtime exemptions was just halted by a federal judge on Friday (Nov. 15th) less than two months before the full effective date. According to the court, the U.S. Department of Labor (DOL) exceeded its authority by raising the threshold too high and allowing for automatic adjustments every three years. The judge not only struck down the phase-two increase to $59K set to take effect on January 1, 2025 but also knocked down the first boost that took the salary floor to $44K in July and the automatic three-year adjustments – setting the threshold back to $684 per week. While it is expected that the DOL will appeal the ruling, many believe it’s not likely to gain any traction the incoming Trump administration. It’s also possible that an appeals court could step in and quickly reverse Judge Jordan’s ruling before President Trump takes office, but only time will tell.
In simplest terms- yes.
The Gag Clause Prohibition Clause Attestation (GCPCA) submission must be made annually. The GCPCA attests to a health plan’s (or insurer’s) compliance with the prohibition against “gag clauses” in any agreements with providers, provider networks, or entities offering provider network access. (A gag clause is any contractual term directly or indirectly restricting the plan or insurer from disclosing specified data and information, such as cost or quality of care data.) A group health plan with more than one benefit package may submit a single attestation even if some coverage types are insured and others are self-insured. For employers that sponsor multiple group health plans, a separate attestation is required for each plan.
An attestation must be made by December 31 each calendar year. Submissions are made through CMS’s Health Insurance Oversight System (HIOS) and are accepted throughout the year. After the initial attestation that was due Dec 31, 2023, each subsequent attestation covers the period from the date of the prior attestation through the date of the subsequent attestation. For example, if a plan submitted its first GCPCA on November 30, 2023, and submits its second GCPCA on November 15, 2024, the second GCPCA’s “attestation period” would be December 1, 2023, to November 15, 2024, and the “attestation year” would be 2024.
You should make sure that the attestation is filed annually (and of course that the plan complies with the underlying prohibition), either by confirming if your medical carrier is filing on your behalf or if you (the employer) will need to file.
The IRS has announced the 2025 contribution limits for items like flexible spending accounts (FSA). Here’s a look at some of the items changing: