• A Note on Requiring COVID-19 Vaccines

    February 24, 2021

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    With COVID-19 vaccinations underway and widespread availability in sight, many employers want to know whether they can require their employees to get the vaccine.

    While recent EEOC guidance implies that they expect many employers to require a vaccine, there are already several states where bills are being introduced to prevent employment discrimination against those who refuse a vaccine (MN, NJ, SC), and it’s likely bills like this will be introduced in more states soon. Additionally, we anticipate that there will be state and federal lawsuits from individuals, which may result in rulings that impact the law in individual states or entire circuits (for instance, the Ninth Circuit, which covers AL, AR, CA, HI, ID, MT, NV, OR, WA, or the Eleventh Circuit, which covers AL, FL, GA).

    Given the legal risks here, and since many Americans will not have access to a vaccine until Spring or even Summer, we believe it would be prudent for most employers to wait to see how things play out in courts and legislatures across the country before deciding to require vaccinations.

    Originally posted on ThinkHR

  • An Opinion (a good start) on Individual Coverage Health Reimbursement Arrangements | by Jordan Shields, Partner

    February 19, 2021

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    An Opinion is something that can be cited to see how the governmental body (in this case, the Equal Employment Opportunity Commission) feels about an issue – at least you get a sense of direction.  Here, the EEOC said, on January 7, that where an employer-paid a flat amount or a percentage of premium toward individual health plans purchased under the aegis of an ICHRA, it would not violate the discrimination rules set up under the ADEA:

    • Flat amount is fine because it is the same for everyone, and not contingent on the age of the employee (even though an individual plan is more expensive for older applicants), especially since enrollment through an ICHRA is voluntary on the part of the employee.
    • Percentage of premium is fine so long as the percentage is the same for everyone, even though the actual dollar amount will end up different

    Overall – the contributions are not a condition of employment, but only an offer made at that time.  Therefore, the involuntary nature of the participation renders it outside the scope of EEOC regulations pertaining to age discrimination under the ADEA.


  • Exploring EAPs

    February 16, 2021

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    Employee Assistance Programs (EAP) are company-sponsored programs that provide assistance to employees for a variety of personal issues that may be hindering or adversely affecting their work performance. Typically offered through third-party administrators, EAPs can provide their services online or via telephone and can sometimes be a part of the employee’s healthcare plan, however it is not a replacement to the healthcare plan.

    Examples of EAP Services

    There is an assortment of services that EAPs offer to employees. All these services have a central purpose: aid the employee so that their personal problems are resolved, and their work performance is unaffected. For example, Karen has been struggling during the COVID-19 pandemic with depression. To sooth her anxiety, she has begun drinking every day. It’s gradually escalated to the point where she is late to work, has frequent absences, and is missing deadlines. She knows she needs to talk with someone who can offer her alcohol abuse resources. She accesses her company sponsored EAP.

    Here are some other common services included in EAPs:

    • Alcohol and substance abuse counseling
    • Health and wellness counseling
    • Child or elder care resources
    • Legal aid
    • Marital and family counseling
    • Financial counseling

    Benefits of EAP Services

    There are a number of benefits to the employee and the employer when the EAP is utilized in the workplace. First, utilizing the EAP service is completely voluntary. Second, the services are provided free of charge to the employee. Third, the counselor that speaks with the employee is entirely confidential. This allows the employee to be completely honest without feeling a threat that the employer would retaliate on anything said in a session.

    Utilizing your company’s EAP not only provides services and care to you and your family, but it also benefits your company. No longer carrying the burden of your personal problems solo, an EAP counselor can give you sound advice and steps to follow to achieve success when tackling a problem.  Employers will benefit by there being no disruption in the workflow of their employee due to overwhelming personal issues. Access your EAP and attack those personal problems today!

  • Plan Sponsor Reporting in California – the rules are different than federal | by Jordan Shields, Partner

    February 12, 2021

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    For fully insured plans, the carriers are responsible for sending Form 1094-C and 1095-C.

    For self-insured plans, the plan sponsor is responsible for sending these forms to the State of California as furtherance of ACA compliance.  The forms are the same (in design) as the federal forms, and an employer may submit the federal form for state reporting purposes.

    However, while federal forms are due March 2, 2021, the state forms are due February 1.

  • Be Alert: Employers Are Seeing a Spike in Phishing Scams

    February 9, 2021

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    Phishing emails are a type of scam designed to obtain information or prompt certain behavior from their targets. To that end, they typically appear to come from a person or entity we trust.

    In most cases, careful inspection will reveal cracks in the façade, little signs that the message is not what it purports to be. But, of course, most of us don’t thoroughly analyze every email we receive from a colleague or supervisor. When we get an email from our CEO, Lizzy Beth, we don’t hover the mouse over her contact card to verify that the message came from her actual company email and not brice@sneaky.scam. We see the email, assume Lizzy Beth wants us to send her the requested information, and send it.

    A successful scam can be a costly data breach with legal consequences. Businesses are generally required to take reasonable precautions to protect personal information in their possession. In the event of a breach, many states require that notice be given to those whose information was compromised. This notice might need to include the cause and nature of the data breach as well as what protections are afforded to those affected.

    One of the best ways to protect your company from these sorts of scams is to have a policy and practice of never emailing sensitive employee information. The language below may serve as an effective reminder:

    “Employees should not under any circumstance email sensitive employee information such as W-2s, benefit enrollment forms, completed census forms, or anything with social security or credit card numbers. Email is inherently insecure, and scammers may pose as company executives or employees to steal information. If you receive a request to email any such sensitive information, do not respond to it. Instead, inform your manager immediately.”

    You can help protect your organization by giving employees examples of the kinds of emails and other communications (texts, calls, etc.) that are likely suspicious. Here are a few:

    • A notice from your email provider suggesting you change your password.
    • A message from the IRS asking you to click a link, open an attachment, or provide information.
    • A message asking you to click a link to pay fines or penalties.
    • A request for W-2s or payroll records.
    • A request for names, birth dates, home addresses, salaries, and social security numbers.
    • A request for contact information.
    • A request to purchase gift cards and email the sender the card numbers.
    • A request for login information.
    • A communication with glaring typos.
    • A communication that says “EMERGENCY” in the subject.
    • A LinkedIn connection from someone you don’t recognize even though they purport to work at your company and have connected with some of your colleagues.

    By Kyle Cupp

    Originally posted on


  • Well it almost worked until it didn’t – Haven finds no haven in health care | by Jordan Shields, Partner

    February 5, 2021


    The highly touted project combining the resources of Amazon, JPMorgan Chase and Berkshire Hathaway has folded its tent following the departure of their CEO several months ago (who now has an advisory position in the Biden administration).  Haven was looking to change how health care was delivered in the United States, starting with the thousands of employees that worked for the three founding companies.  Trouble began when the ideas spawned at Haven were independently used by each of the founders…without unanimity, how could they expand?

  • COVID-19 Fraud Protection

    February 1, 2021

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    The COVID-19 crisis has not only stolen the health and well-being of people all over the world, but now, it seems, it has opened the door to criminals who want to steal your money and your identity. Historically, when there are times of crisis, the crime rate increases. We see this with natural disasters when stores are looted or when the economy is tanking and theft increases.  Now, we are seeing this scenario play out in real time as thieves use the pandemic and fear to their benefit.


    According to Forbes, Americans have lost more than $106 million to fraud related to COVID-19. These losses originate from all types of scams ranging from seeking donations for non-existent charities to price gauging for personal protective equipment. Dishonest individuals call victims and impersonate health organizations with a cure for COVID or products that can prevent infection if you just give them a credit card number. False bank accounts have been opened for the sole purpose of depositing unemployment benefit checks for non-existent persons.  With crime so rampant, how can you tell what’s true and what’s false pertaining to this crisis? Here’s some big scams that you can look out for:

    • Phishing/SMishing—Emails or text messages that appear to be from your bank or from an online retailer ask you to click a link or call a number so that you can verify personal information.
    • Work-from-home scams—Posing as a company or even one of your co-workers, criminals email about fake opportunities to work from home and ask you to apply for a job by giving out personal information.
    • Medical fraud—Fake websites are launched with virus testing kits or medical supplies for sale and collect credit card information.
    • COVID contact tracing—In an attempt to steal personal information such as social security numbers, fraudsters claim to be contact tracers and have identified you as a possible close contact of a COVID patient. Now they ask you for your info to verify and log your exposure to the virus.
    • Vaccine scheme—Calling individuals to sign them up to receive the COVID vaccine, the imposter asks for your personal information.


    • The number one way to protect yourself from possible fraud related to the COVID-19 crisis is to never give out your personal information in response to an unsolicited email or phone call. If you haven’t called the company/bank/organization directly, and someone contacts you asking for your birthdate, maiden name, social security number, etc, don’t give it out. You have the right to decline their request so that you can feel secure in releasing your information. Simply tell the solicitor that you want to call them back and then look on your bill/website/known contact information and call that number to affirm that the person who contacted you is indeed who they say they are.
    • If you suspect that your identity has been stolen, contact one of the three big credit bureaus: Equifax, Experian, or TransUnion. When you contact one of these agencies, you can request a freeze be put on your credit so that scammers cannot open any new accounts in your name.
    • “Report financial identity theft fraud attempts to the FBI. The toll-free number is easy to remember: 1-800-CALL-FBI. Or you can go online to” reports Terry Savage, Next Avenue podcast co-host. Forbes has a great transcript of a recent episode online with lots of fantastic tips for protecting yourself against fraud and you can access it HERE.

    In the midst of this pandemic crisis, the most important thing to focus on is the health and welfare of yourself and those you care most about. You shouldn’t have to waste time and effort chasing down scammers who have preyed on you when you are the most vulnerable. By following these easy (and always applicable) tips for protecting your identity and your finances, you can keep your focus on what really matters.


  • What to Know About Life Insurance for Diabetics

    January 27, 2021


    Many people falsely believe that life insurance for diabetics doesn’t exist. In reality, there are quite a few life insurance options for the 34.2 million Americans who have diabetes.

    While diabetes remains a health challenge for many, it is still very possible to secure good life insurance as a diabetic. Here are some key things to know about getting life insurance if you have diabetes.

    Insurance companies consider many factors.

    In addition to knowing whether you have diabetes, a life insurer may also want to know:

    • Whether you have Type 1 or Type 2 diabetes
    • The age you were diagnosed with diabetes
    • What medications you’re taking
    • Your height and weight
    • How well you’re controlling your diabetes
    • Your glucose levels
    • If you have other health conditions like heart disease and/or high blood pressure
    • If you smoke
    • Your overall medical history
    • Your family history

    Some life insurers offer something known as “clinical underwriting.” (Underwriting is when an insurance company evaluates you for coverage.) This type of underwriting takes a more holistic view of your health instead of zeroing in on certain risk factors. An insurance professional will know more about companies that offer clinical underwriting.

    Life insurance for diabetics underwriting varies by insurer.

    One person who knows a lot about life insurance for diabetics is Jake Irving. He’s is a licensed insurance agent and owner of Willamette Life Insurance in Beaverton, Oregon. Irving specializes in helping people with diabetes get life insurance. He says that every insurer has different underwriting guidelines when it comes to life insurance for diabetics.

    Even still, Irving says that most insurers care about your age at the diagnosis. “Being diagnosed earlier in life means there’s more time for related complications to develop,” he explains. That may make it harder to get coverage.

    Most insurers will also care about any severe diabetic complications. “Having a diabetic coma, an amputation, or a hospitalization are the big three they care about,” says Irving. “But having any one doesn’t mean you can’t get coverage.”

    Finally, people with Type 2 diabetes typically have an easier time securing life insurance than people with Type 1 diabetes.

    Life insurance for diabetics is often (but not always!) more expensive.

    People in good health who don’t smoke generally get better life insurance rates than people with health conditions and smokers. That said, Jake says he’s had diabetics qualify for preferred insurance rates. Preferred is the best rate category available for life insurance.

    Nontraditional plans are an option.

    One nontraditional option is graded life insurance. With this option, your beneficiaries only receive a percentage of the full life insurance payout if you pass away before a set waiting period. A typical waiting period is two years.

    Another option is guaranteed issue life insurance. With this option, you get a limited amount of coverage on the spot. You are not required to have a medical exam or even answer any medical questions. Just know that you may only get a limited amount of coverage and that the rate may be high. There’s also often a waiting period as well.

    Controlling your diabetes can help you get better coverage.

    Life insurers look more favorably on diabetics who are working on managing their condition. This could mean regularly visiting your doctor, taking your prescribed medication, maintaining a healthy weight, and having lower A1C and glucose levels.

    Jake says that it may even be possible to secure a better rate once you control your diabetes. This is especially true if a good amount of time has passed since a hospitalization from diabetes. (Just know that the incident may remain on your health record and affect your rate.)

    Working with a licensed insurance agent is your best bet.

    Ideally, you want an independent agent who has relationships with many different life insurance companies. This means they can shop around for the best possible coverage for you. It also means they can turn to other carriers if your application is rejected.

    You might even consider an agent like Jake who works with high-risk applicants. These kinds of agents are especially knowledgeable about which carriers are most likely to offer you the best policy.

    Start the process by learning how to choose a qualified insurance agent. An easy way to find a qualified insurance professional in your area is to use our Agent Locator.

    By Amanda Austin

    Originally posted on

  • Compliance Requirements for a Remote Workforce

    January 20, 2021


    According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Below is our general guidance for employers.

    Logging Hours and Preparing Paychecks
    Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work, and even overtime, that they aren’t being paid for. While this may seem harmless enough in the moment, particularly if the employee isn’t complaining, unpaid wages can come back to bite you once the employee is on their way out the door.

    Minimum Wage
    Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.

    Remote employees must take all required break and rest periods required by law, as if they were in the workplace.

    Harassment Prevention Considerations
    You may have employees working in a state that has a lower bar for what’s considered harassment or that requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.

    Remote work also comes with additional opportunities for harassment (even if it doesn’t rise to the level of illegal harassment) such as employees wearing clothing that crosses the line into inappropriate, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video. That said, going overboard with standards that you’re applying to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.

    Workplace Posters
    Many of the laws related to workplace posters were written decades before the internet, and so their requirements don’t always make sense given today’s technology.

    The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.

    Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet that employees can access. A number of newer posting laws expressly allow for electronic posting, but this option is not necessarily compliant with every posting law out there.

    FMLA Eligibility
    Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

    According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.

    Verifying I-9s
    In normal circumstances, the physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

    However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection should instead be done remotely. As of the date of this newsletter, this temporary rule is still in effect.

    In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

    That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.

    Deciding Who Can Work from Home
    You may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.

    Originally posted on ThinkHR

  • PCORI Tax reinstated | by Jordan Shields, Partner

    January 19, 2021


    First, it was here, then it wasn’t, now it is back again, reinstated under the Trump administration.

    For plans that renew between October 1, 2019, and October 1, 2020, the amount paid per covered employee is $2.54.  For 2020-21 the amount will be raised to $2.66.

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