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Answer from Rebecca, one of our HR Pros
You should also consider whether the employee may be protected under the Americans with Disabilities Act (ADA), even if all FMLA protected leave has been taken. FMLA issues can often prompt an ADA analysis. If you think there is any possibility that the employee would be considered disabled under the ADA based on your objective knowledge (and especially the reasons given for the initial FMLA leave) you should also be reaching out in an effort to start the ADA interactive process to determine if she is disabled and if there are any reasonable accommodations that can be made. You may be able to sever the employment relationship if the employee is completely unresponsive within a reasonable period of time. However, prior to termination we recommend that you make written attempts to reach the employee via certified mail, return receipt requested, and document those attempts in her personnel file. While the “reasonable period of time” may be dependent on the particular situation, generally two weeks from the confirmed date of receipt of the certified letter would be an acceptable amount of time to wait before proceeding with a termination for job abandonment. You should also ensure that no contract, state specific regulation, or other protection (such as workers’ compensation) would require additional allowed absence or a different termination procedure. Following this procedure shows "good faith" on your end. Acting in good faith and documenting your good faith efforts may provide you with protection should you ever be challenged with regard to your decision to terminate this employee. Even if the FMLA protected leave is exhausted and no ADA protections are available to the returning employee, you may choose not to treat the failure to return from FMLA leave in exactly the same way as other job abandonment is treated. By giving the employee who has failed to return from leave a week or two to explain the absence, you can ensure that all parties are in agreement about the expected return date and that additional protected leave is not required. However, if you do decide to apply your regular job abandonment policy in this situation, you should make sure that you are giving the non-returning employee the same number of missed work days and attempts at communication before termination that you would give to any other employee, or have given to other employees in the past. |
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Thursday, April 09, 2015
Care in terminating an employee?
Thursday, March 26, 2015
Penalties & Reporting for Violations of ACA Requirements
March 26, 2015
If you are a private employer (non-governmental) who has failed to comply with the various portability, access and renewability requirements imposed on your single employer group health plan by the Affordable Care Act (ACA) (such provisions are found in Chapter 100 of the Internal Revenue Code and include prohibitions against annual or lifetime limits, pre-existing condition limitations and waiting periods in excess of 90 days, as well as a requirement to provide no-cost preventive services and other requirements), you must timely report your violation and pay the related excise tax under Section 4980D of the Internal Revenue Code. This includes employers who sponsor medical reimbursement plans or health reimbursement arrangements that have improperly reimbursed premiums for individual health insurance, another employer’s health plan, TRICARE or Medicare, or medical expenses that do not fit within a limited exception from the ACA limits (please see our recent alert on these arrangements here). You should periodically check your compliance from time to time, since quick corrective action could save you significant dollars.
Penalties & Exceptions
The excise tax is $100 per day of noncompliance for each individual to whom the ACA failure relates. In most cases, this means the excise tax is calculated based upon the number of your full-time employees. The noncompliance period begins on the date of the first failure and ends on the date of correction.
However, it is important to note that certain exceptions and limits to the excise tax are available:
- if you can demonstrate that you did not know (and, in exercising reasonable diligence, would not have known) that there was a compliance failure, no tax is due.
- if you can demonstrate that the failure was due to reasonable cause rather than willful neglect and was corrected within 30 days after you first knew (or, in exercising reasonable diligence, should have known) that the failure existed, no tax is due (note that church plans may have a longer correction period).
- if you can demonstrate that the failure was due to reasonable cause and not willful neglect, your tax is reduced to the lesser of 10% of the amount that you paid during the preceding tax year for group health plans, or $500,000.
- if you can demonstrate that the failure was due to reasonable cause and not willful neglect, the IRS also has the power to waive part or all of the tax, to the extent the payment would be excessive relative to the failure involved.
A failure is treated as “corrected” if it is retroactively undone to the extent possible and affected employees are placed in a financial position as good as they would have been in had the failure not occurred.
Reporting
If you have committed a violation, you must self-report the violation on IRS Form 8928 (Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code). It is unclear whether employers can avoid this filing requirement if they feel they clearly satisfy one of the first two exceptions above that exempts the employer from all taxes and does not otherwise contemplate IRS action to actually waive the taxes. However, since your qualification for these first two exceptions will be based on the facts and circumstances, it appears that you will only achieve certainty by filing the IRS Form 8928 and indicating that $0 is due.
You must file the IRS Form 8928 and pay any excise tax by the due date for filing your company’s income tax return for the taxable year in which the failure occurred (or continued). If your failure spans more than one taxable year, you will need to allocate and report the noncompliance periods to the proper taxable year. No deadline extension is available if you extend the date to file your company’s income tax return, but you may obtain an automatic 6-month extension by filing IRS Form 7004 on or before the deadline for the IRS Form 8928. However, obtaining this extension does not extend the time for you to pay any excise taxes due (so you will need to estimate taxes and may potentially owe interest on late payments), and the IRS has the right to terminate an automatic extension upon written notice to you.
Employer Actions
Since the ACA requirements have not been in effect for very long, it is unknown how strictly the IRS will enforce them. Many experts believe that the IRS is likely to audit compliance in this area because of the significant penalties involved and the overall need to fund other ACA costs.
Given the magnitude of the potential excise taxes that could become due under Code Section 4980D, and the possibility of a complete waiver if errors are quickly addressed, you should:
- quickly determine whether you have any issues with the portability, access and renewability requirements imposed by the ACA on your single employer group health plan(s), especially any medical reimbursement programs or health reimbursement accounts (HRAs), and
- periodically review your compliance with these requirements to make sure that problems are promptly identified, corrected and reported (if required).
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ACA News: Final IRS forms for employer mandate and minimum essential coverage reporting
March 19, 2015
Employer mandate reporting
The employer mandate provision of the Affordable Care Act (ACA or health care reform law) says “applicable large employers,” which are companies with 50 or more full-time workers, have to offer minimum value, affordable health coverage to their full-time workers or face a penalty.
To check if employers are offering minimum value, affordable coverage to their full-time workers, the Internal Revenue Service (IRS) needs reports to be sent by applicable large employers. This is called Employer Mandate Reporting, or IRS Code Section 6056 Reporting.
The IRS has released the final forms and instructions: Form 1094-B, Form 1094-C,Form 1095-C, Instructions for 1094-B, Instructions for 1094-C and 1095-C.
Minimum essential coverage reporting
The individual shared responsibility provision of the ACA states that every person has to have basic health insurance coverage or face a penalty. This is known as minimum essential coverage (MEC). To make sure people have MEC, the Internal Revenue Service (IRS) needs reports to be sent by those who provide MEC. This is called Minimum Essential Coverage Reporting, or IRS Code Section 6055 Reporting. This is required of insurers with fully insured business and employers with self-funded (ASO) plans.
The IRS has released the final forms and instructions: Form 1095-B, Form 1095-C, Instructions for 1095-B, Instructions for 1095-C.
As a reminder, nothing needs to be done with the forms this year. These are for reference only since employer mandate and MEC reporting are not required until January of 2016 for the 2015 coverage year.
Questions?
Go to this fact sheet for more about employer mandate reporting. For more details about MEC reporting, read this fact sheet.
Thursday, March 19, 2015
New HHS Regs 'Clarify' That Health Plans Covering Families Must Have 'Embedded' Individual Cost-Sharing Limits
"[HHS] now requires group health plans to embed an individual cost sharing limit within the family limit.... The HHS clarification is not effective until plan years beginning on or after January 1, 2016. It is important to note that, at the moment, it is unclear whether the HHS clarification is intended to apply to self-insured plans.... Additionally, all previous cost sharing guidance applicable to self-insured plans have been issued jointly by the HHS, Department of Treasury and [DOL]. As of the date of this [article], the Departments of Treasury and Labor have not issued a similar clarification."
Friday, March 06, 2015
Americans Are Feeling a Little Better About Their Retirement Crisis
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| Fewer Americans are worried they won't have
enough money to be self-sufficient in old age, but healthcare costs concerns
still loom large. READ MORE » |
How to avoid legal trouble when firing an employee
Firing an employee can lead to legal complications if you aren't
careful, writes Kim Shandrow. Among other things, ask yourself whether you are
within the boundaries of the law and company policy. "No matter what,
stick to your plan, your script, and be professional -- which isn't easy when
someone cries or slams the table or threatens you with violence," said
Chas Rampenthal, general counsel for LegalZoom. Entrepreneur online
HR Demo Video Are HR Platform available to clients with online resources and answers from professionals to your questions.
HR Demo Video Are HR Platform available to clients with online resources and answers from professionals to your questions.
Wednesday, February 25, 2015
ACA Countdown to Compliance for Employers (PDF)
135 pages. "52 weekly blog posts that comprise the series ... [which] appeared in the Mintz Levin Employment Matters Blog during 2014. Each of the posts addressed compliance issues affecting employers with a particular, though not exclusive, focus on that law's employer shared responsibility (a/k/a 'pay-or-play) rules. The end of the series coincided with the January 1, 2015 'go live' effective date of the new rules. The issues discussed week-to-week were generally gleaned from newly-issued guidance or developing problems, questions or concerns." (Mintz Levin) click here for the report
Wednesday, January 14, 2015
Question about Health Care Reform relating to the employer contribution?
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Answer from Jenny A., one of our HR Pros Currently, there is uncertainty
around this particular issue as there is no case law or guidance that tells
us whether this contribution method will comply with ERISA’s
anti-discrimination guidelines.As you know, under the Affordable Care Act, one of the safe harbor methods for determining affordability is to use the 9.5% of the employee’s W-2 wages method. Another is to use the 9.5% of the employee’s monthly income method. These methods naturally lend themselves to employers wanting to set their contribution structure based on each employee’s earnings. And under the Affordable Care Act, doing so would seem to comply with the Act. The problem lies in existing legislation, namely ERISA. Under the ERISA anti-discrimination guidelines, similarly situated employees must be treated consistently when it comes to contribution. Disparities in contribution structures must be supported by legitimate employment-based classes of employees. For example, ERISA allows one contribution schedule for hourly employees and another for salaried employees, as long as similarly situated employees are treated consistently. Another example is for employees in different geographical locations, so you could contribute 50% to employee only coverage for Georgia employees, and 75% of employee only coverage for California employees and still comply with ERISA. So, using the method you described of each employee paying only 9.5% of their wages for the employee-only portion of their coverage certainly works for ACA compliance, but could potentially violate ERISA’s anti-discrimination guidelines. Of course, the employer could argue that each employee is paying the same percentage of wages, and that may be a good argument. Until a case on that point actually arises through, it is difficult for us to predict whether a court of law would consider this an ERISA violation. Therefore, our recommendation right now is not to use this contribution schedule. Rather, we recommend setting a blanket contribution amount for all similarly situated employees, publishing that amount in the official plan documents and remaining consistent with that contribution throughout this plan year. After that time, hopefully we will have some case law to review to see how the courts have decided on this issue. As a side note, if you are looking for the most simple (though perhaps not most cost-effective) method of setting your contribution schedule to meet the affordability provisions of the ACA, my favorite method is the federal poverty level safe harbor. Rather than being a percentage of income, this method uses a flat amount that the employer can contribute in order to meet the ACA affordability provisions. For 2015, this amount is $1100. So as long as no full-time employee has to spend more than $1100/year for the employee-only portion of their health insurance coverage, you have met the affordability test. Again, this may not be the most cost-effective method, especially if the majority of your employees make more than the federal poverty level, but this is a fairly simple method to use, as it in no way hinges on the employee’s monthly or W-2 wages, which of course may fluctuate. It also allows for a bit of ease when completing the ACA reporting at the end of the year. |
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Jenny has over 15
years of Human Resources Management experience. She has worked with clients
in a variety of industries to reduce exposure to employment-related liability
and assist with employee relationship issues. Jenny holds a Bachelors of
Business Administration (BBA) from the University of Georgia and a Masters of
Business Administration (MBA) degree with a concentration in Human Resources
Management from Georgia State University. She is certified as an SPHR (Senior
Professional in Human Resources) through the Human Resource Certification
Institute.
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Contact information |
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Agency Marketing Services
25200 Crenshaw Blvd. Ste 202 PO Box 4020 Torrance, CA 90510 Phone: 800 334-7875 Email: info@amsinsure.com Visit us online |
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Legal Disclaimer: The HR Support Center is not engaged in the
practice of law. This response should not be relied upon or construed as
legal advice, and does not create an attorney-client relationship. If you
have legal questions concerning your situation or the information you have
obtained, you should consult with a licensed attorney. The Company can in no
way be held liable for any actions taken as a result of this correspondence.
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Monday, January 12, 2015
VA vs Employer Coverage? And Covered Ca.
Posted: 09 Jan 2015 09:23 AM PST
Friday, January 02, 2015
Have you updated your new employee waiting periods?
Health Care Waiting Periods
The beginning of 2015 is ripe with new health care reform requirements. While the majority of these, such as the implementation of the first phase of the Employer Mandate and the reporting requirements for health coverage, impose additional burdens on employers, the California-specific change actually relaxes an earlier requirement. The previously-in-effect cap of 60 calendar days on waiting limits for otherwise eligible employees to be allowed to join an employer-sponsored health plan will be gone on January 1, 2015. With this requirement removed, employers are permitted to follow the federal waiting period cap of no more than 90 calendar days.
We can help you with your new options, contact us at info@amsinsure.com or call 800-334-7875
The beginning of 2015 is ripe with new health care reform requirements. While the majority of these, such as the implementation of the first phase of the Employer Mandate and the reporting requirements for health coverage, impose additional burdens on employers, the California-specific change actually relaxes an earlier requirement. The previously-in-effect cap of 60 calendar days on waiting limits for otherwise eligible employees to be allowed to join an employer-sponsored health plan will be gone on January 1, 2015. With this requirement removed, employers are permitted to follow the federal waiting period cap of no more than 90 calendar days.
We can help you with your new options, contact us at info@amsinsure.com or call 800-334-7875
ACA's employer mandate goes into effect for some businesses
Businesses with 100 or more full-time employees must offer health insurance to at least 70% of those employees this year or face a tax penalty under the Affordable Care Act. New reporting requirements also take effect this year, and some consultants are offering training sessions. American City Business Journals/Portland, Ore./Health Care Inc. Northwest blog (12/29)
Tuesday, December 30, 2014
New Restrictions on Employer-Provided Medical Expense Reimbursement Plans
The IRS issued Notice 2013-54 on September 13, 2013, eliminating the opportunity for employers to reimburse most medical costs in all but limited circumstances. The change is effective for plan years beginning on or after January 1, 2014. The notice eliminates an employer’s ability to use a stand-alone medical reimbursement plan, health reimbursement arrangement (HRA), or other tax-favored arrangements, such as a cafeteria plan, to help employees pay for individual health insurance policies or other out-of-pocket medical costs.
“The notice does this by pointing out that these arrangements would fail to satisfy the Affordable Care Act’s (ACA) market reform provisions requiring no dollar limits on essential health benefits and no-cost preventive health services,” says Andy Biebl, a tax principal at CliftonLarsonAllen.
For example, the market reforms prohibit any limit on certain essential health benefits. But stand-alone Section 105 plans limit the amount for which an employee may seek reimbursement. The sanction for violating these rules is a punitive $100-per-day, per-employee penalty, or $36,500 per participant per year — effectively a total prohibition.
10 ways to inspire creativity in your staff.
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Fostering creative business practices isn't as hard as it seems and can lead to smart solutions. Use these ten techniques to help inspire and encourage creativity in your staff. Read the article and learn 10 ways to get the creative juices flowing. |
Monday, December 29, 2014
Insure Your Part-Time Workers at No Cost
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Part-time and variable-hour employees are more likely to lack employer-provided benefits than other workers. Voluntary benefits let employers provide benefits to these workers at no cost.
In October 2014, more than 7 million U.S. workers worked part-time due to “financial reasons.” Although they’d prefer to work full-time, these individuals work only part-time due to slack business conditions or the inability to find a full-time job. Although these figures represent an improvement of 10 percent over 2013’s figures, reluctant part-timers still comprise a significant portion of the U.S. workforce.
Unfortunately for part-timers, employers are much less likely to provide benefits to part-timers. This leaves many young and underemployed workers with no access to affordable life, health and other benefits. According to Bureau of Labor Statistics figures, a significant gap exists between the benefits part-time workers in private industry have access to* versus their full-time peers:
Under a voluntary benefit program, the employer offers employees a menu of benefits; employees pay for the ones they want through payroll deduction. The employee pays the cost and the benefits provider handles all administration and provides all needed education materials.
With a voluntary benefits program, part-time workers can have access to the benefits they might lack otherwise. Voluntary medical plans, such as cancer insurance, have no minimum participation requirements, unlike employer-sponsored medical coverage. And with a voluntary plan, employees whose health might disqualify them from individual coverage can often get at least minimal coverage. The most popular voluntary benefits include:
Results from the MetLife 2014 Study of Employee Benefit Trends indicate that voluntary benefits should play an important role in any employer’s benefit program. Between 2012 and 2013, the percentage of employees who strongly agreed with the statement, “I am looking to my employer for more help in achieving financial security through employee benefits” increased dramatically, from 29 to 40 percent.
Employees are also willing to pay for their benefits. Sixty percent said they’d be willing to bear more of the cost of benefits to have a choice that met their needs. A whopping 80 percent strongly agreed with the statement, “I would value more personalized benefits geared to my individual circumstances and age.” Why should employers care about these emerging employee preferences? Research indicates that benefits are a strong driver of employee loyalty. The MetLife researchers found that “…employees who are very satisfied with their benefits are more likely to feel loyal to their company and to believe their company is loyal to them.” And 65 percent of employees surveyed strongly agreed with the statement, “Having benefits customized to meet my needs would increase my loyalty.” Voluntary benefits let employees do just that. For information on what voluntary benefits can do for your organization, please contact us.
info@amsinsure.com 800-334-7875
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Monday, December 22, 2014
Coming January 1, 2015: The Employer Mandate and Health Coverage
Reporting
Requirements
For 2015, only non-compliant large employers (those with 100 or more FTE employees) will face penalties. Midsized employers (those with 50-99 FTE employees) will have an additional year of reprieve (until 2016) so long as the organization did not (1) reduce its workforce or workers’ hours to get below the 99 employee threshold without a bona fide reason or (2) materially reduce its health care plan as it existed on February 9, 2014. Employer Mandate penalties are incurred on a monthly basis, but paid annually.
With the implementation of the Employer Mandate comes new IRS reporting requirements. Employers with 50 or more FTE employees must begin Section 6056 (Employer Mandate) reporting for the 2015 tax year. These forms will be filed with the IRS and provided to employees in early 2016. Although the actual reporting will not be performed until early 2016, some of the data included in the reporting must be classified by month. So now is the time to begin tracking this data. The IRS draft samples for both required reporting forms (1094-C and 1095-C) are available in your HR Support Center.
Tuesday, December 16, 2014
The 2015 plan limits and standard mileage rates are shown below.
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Thursday, November 06, 2014
Employer health plan deductibles see big jump
November 1, 2014 • Benefits Selling

According to analysis from the Kaiser Family Foundation and the Health Research & Educational Trust, deductibles are up nearly 50 percent since 2009.
Since 2009, the average deductible has increased 47 percent to $1,217 as employers aim to save on health care costs, researchers said. That's compared to $826 in 2009.
This year, 41 percent of all covered workers face an annual deductible of at least $1,000, including 18 percent who face a deductible of at least $2,000. And covered workers at small firms (three to 199 employees) are even more likely to face large deductibles, with 61 percent facing at least $1,000 deductibles and a third (34 percent) facing $2,000 deductibles or higher.
“The deductibles for workers have crept higher over time, topping $1,200 on average this year,” said study lead author Gary Claxton. “Today, four in 10 covered workers face at least a $1,000 deductible, nearly double the share from just five years ago.”
Meanwhile, the main headline from the report is that average annual premiums for employer-sponsored family health coverage increased 3 percent this year, reaching $16,834, continuing a “recent trend of modest increases,” analysts said.
Workers on average pay $4,823 annually toward the cost of family coverage this year, the survey of more than 3,000 firms concluded.
Kaiser analysts called the premium growth good news for employees and employers, pointing out that premiums increased more slowly over the past five years than the preceding five years (26 percent vs. 34 percent) and well below the annual double-digit increases recorded in the late 1990s and early 2000s.
“The relatively slow growth in premiums this year is good news for employers and workers, though many workers now pay more when they get sick as deductibles continue to rise and skin-in-the-game insurance gradually becomes the norm,” Kaiser Family Foundation President and CEO Drew Altman said.
Additionally, the survey also found that nearly all employers with 100 or more workers (94 percent) already offer health benefits, shedding some light on trends on the employer market before PPACA's employer mandate takes effect.
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