All posts in Human Resource

Medicare Supplement Plans Eligibility


        Medicare Supplement Plans

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In order to be eligible for Medicare supplement plans, you must be enrolled in Medicare Part A and Part B, and you cannot be enrolled in a Medicare Advantage plan. If you are under 65 and receive Medicare as part of your disability benefits, you may be eligible to purchase a Medicare supplement plan depending on the state in which you live. In addition, only one person can be covered by each Medicare supplement plan. You will need to purchase separate policies if both you and your spouse want this type of coverage.

If you are getting close to your 65th birthday, you are likely preparing to enroll in Medicare. Enrolling in Medicare and figuring out how to decrease your out-of-pocket health care expenses can be daunting, but a Medicare supplement plan can do just that—save you money and provide peace of mind.

Original Medicare, which consists of Medicare Part A and Part B, typically does not cover all of an individual’s health care costs. In order to fill the gap, many individuals purchase a Medicare supplement plan. Medicare supplement plans, also known as Medigap policies, are policies that can be purchased to cover expenses that Medicare does not pay.

The most common supplemental plans provide coverage for the out-of-pocket expenses that are not paid by Medicare, such as copays, deductibles, coinsurance, as well as some services that may not be covered by Medicare, such as international travel emergencies. Plans vary, so look for a plan that provides the coverage you need.


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Bilingual Workplace; Signage They Understand


        Maintaining Safety in a Bilingual Workplace

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     Signage
To promote worker safety, you should post signage and communication materials in the language in which your employees are fluent. For Spanish language compliance assistance, OSHA offers a variety of free, health and safety materials at: http://www.osha.gov/dcsp/compliance_assistance/index_hispanic.html

In addition to printed safety materials, provide information about wages, medical insurance and employee policies. It is beneficial to first evaluate employees’ level of education, job duties and common injuries, as well as culture and background, and then adapt your safety programs and communications materials accordingly.

     The Translation Option
Consider professional translation of your materials. If you have Spanish speaking employees, ensure the materials are translated into the most prominent dialect, and ask a native speaker to review the material for accuracy before distributing companywide. The standard translation fee ranges from $10 – 20 per page, but is well worth the expense when weighed against the risk of workplace accidents due to poor communication or understanding.

     Language Education
To develop and retain skilled workers, you may want to consider offering on-site language classes to help your workers build communication skills. Offering learning opportunities at the workplace is convenient for the worker and encourages learning through the team setting.

A productive and safe workplace hinges on the quality of communication between management and workers. Language and cultural barriers that emerge in a bilingual workforce can contribute to miscommunication and on-the-job accidents and injuries. Because employees that do not speak English generally hesitate to ask for help when they do not understand, every employer with a bilingual workforce must take steps to bridge cultural gaps and ensure proper communication.

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Safety Standards in a Billingual Workplace


        Maintaining Safety in a Bilingual Workplace

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     Orientation should be offered in the worker’s native language, if possible. Bilingual trainers in human resources or senior positions can serve a dual role, acting as translators at orientation, workplace presentations and safety meetings throughout the year.

     On the safety front, keep in mind that new immigrants may not understand the importance of following U.S. safety standards. If a machine breaks on an employee’s shift, he or she may worry that his or her job is on the line and try to fix it or make do. Make sure new employees understand that broken machinery in the workplace is taken very seriously to ensure everyone’s safety. Workers should understand that properly reporting problems is a behavior to be rewarded, and will not cost them a job.

A productive and safe workplace hinges on the quality of communication between management and workers. Language and cultural barriers that emerge in a bilingual workforce can contribute to miscommunication and on-the-job accidents and injuries. Because employees that do not speak English generally hesitate to ask for help when they do not understand, every employer with a bilingual workforce must take steps to bridge cultural gaps and ensure proper communication.

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Supreme Court Rules in Favor of Pregnant Worker in Discrimination Case


        

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On March 25, 2015, the U.S. Supreme Court ruled in favor of a former employee of United Parcel Service (UPS) who was faced with the choice to either continue working her labor-intensive job during pregnancy or take unpaid leave. In a 6-3 decision, the Supreme Court held that the employee should be given the opportunity to prove that UPS violated the Pregnancy Discrimination Act (PDA) by not giving her the same light-duty accommodation that was given to other UPS employees who were considered injured or disabled.

The Supreme Court’s decision establishes a legal framework for this type of pregnancy discrimination case. Due to this ruling, it may be easier for employees to succeed on claims that their employers violated the PDA by failing to accommodate them. To help limit liability under the PDA, employers should review their employment practices and policies regarding accommodations to make sure pregnant workers are treated the same as other workers with similar restrictions.

Pregnancy Discrimination Act

Title VII of the Civil Rights Act prohibits a covered employer (15 or more employees) from discriminating against any individual with respect to the terms, conditions or privileges of employment because of the individual’s sex. In 1978, Congress added the PDA to Title VII. The PDA has two clauses:

The first clause clarifies that Title VII’s prohibition on sex discrimination includes discrimination based on pregnancy, childbirth or related medical conditions.

The second clause requires that women affected by pregnancy, childbirth or a related medical condition be treated the same for all employment-related purposes as “other persons not so affected but similar in their ability or inability to work.”

Factual Background

The employee, Peggy Young, worked as a part-time driver for UPS. When Young became pregnant in 2006, her doctor advised that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. When Young presented UPS with her doctor’s note, she was told that she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.

Young sued UPS, alleging that her employer violated the PDA’s second clause because it had a light-duty policy for other types of workers, but not for pregnant workers.

Under its light-duty policy, UPS accommodated workers who were injured on the job, those suffering from disabilities under the Americans with Disabilities Act (ADA) and those who had lost their Department of Transportation (DOT) certifications. According to UPS, because Young did not fall within one of these three categories, it treated her the same as it would treat other relevant persons and therefore did not discriminate against her based on pregnancy.

Legal Decision

The district court granted UPS’ motion for summary judgment, concluding that those who Young compared herself to—those falling under the on-the-job, DOT and ADA categories—were not similarly situated groups of employees. The 4th Circuit Court of Appeals affirmed the district court’s decision.

The Supreme Court vacated the 4th Circuit’s decision and remanded the case for further proceedings. The Supreme Court ruled that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situations were similar to hers. Thus, the Supreme Court gave Young another chance to show that UPS violated the PDA when it failed to accommodate her light-duty request.

The Supreme Court also outlined the framework that applies in this type of disparate treatment case under the PDA. Under this framework, an individual alleging pregnancy discrimination may establish a case by showing that:

She was pregnant at the relevant time;

Her employer did not accommodate her; and

Her employer did accommodate others who are similar only “in their ability or inability to work.”

According to the Supreme Court, this burden is “not onerous” for an employee. It also does not require the employee to show that she and the non-pregnant employees who were treated more favorably were similar in all non-protected ways.

The employer may justify its refusal to accommodate the employee by relying on a legitimate, non-discriminatory reason. The employee may then in turn show that the employer’s justification is a pretext for discrimination. An employee may show pretext by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s reasons are not strong enough to justify the burden. A significant factor that will help prove an employee’s case is if the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

Impact of Decision

The Supreme Court’s decision in Young v. UPS is a victory for pregnant workers because it establishes an easier framework to prove illegal discrimination. However, many employers may have already changed their policies to allow light-duty accommodations for pregnant workers due to other recent legal developments.

In 2008, Congress expanded the definition of “disability” under the ADA to make it clear that physical or mental impairments that substantially limit an individual’s ability to lift, stand or bend are ADA-covered disabilities. This expanded definition, as interpreted by the Equal Employment Opportunity Commission (EEOC), requires employers to accommodate employees whose temporary lifting restrictions originate off the job.

In July 2014, the EEOC issued enforcement guidelines that cover employers’ light-duty policies for pregnant workers. According to these guidelines, if an employer provides light-duty assignments to any of its employees who are temporarily unable to perform their full duties, then similar accommodations should be made for pregnant employees who cannot perform their full duties. Although the Supreme Court decided not to take these guidelines into consideration in Young vs. UPS, employers may have reevaluated their accommodations policies based on this guidance.



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Who is a fiduciary?


        ERISA Compliance: Fiduciary Responsibilities

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Many of the actions involved in operating an employee benefit plan make the person or entity performing them a fiduciary. Using discretion in administering and managing a plan or controlling the plan’s assets makes that person a fiduciary to the extent of the person’s discretion or control.

Thus, fiduciary status is based on the functions performed for the plan, not just a person’s title.

Group health plans can be structured in a variety of ways. The structure of the plan will affect who has fiduciary responsibilities. Most employers sponsoring self-funded group health plans exercise some discretionary authority and therefore are fiduciaries. If the employer sponsors a fully-insured plan, fiduciary status depends on whether the employer exercises discretion over the plan.

A plan must have at least one fiduciary (a person or entity) named in the written plan, or through a process described in the plan, as having control over the plan’s operation. The named fiduciary can be identified by office or by name. For some plans, it may be an administrative committee or a company’s board of directors.

A plan’s fiduciaries will ordinarily include:

     • Plan administrators, trustees and investment managers.

     • Individuals exercising discretion in the administration of the plan.

     • Members of a plan’s administrative committee (if applicable) and those
     who select committee officials.


Who is not a fiduciary?

Attorneys, accountants and actuaries generally are not fiduciaries when acting solely in their professional capacities. Similarly, a third-party administrator (TPA), recordkeeper or utilization reviewer who performs solely ministerial tasks is not a fiduciary; however, that may change if the entity exercises discretion in making decisions regarding a participant’s eligibility for benefits.

Also, a number of decisions are not fiduciary actions, but, rather, are business decisions made by the employer. For example, the decisions to establish a plan, determine the benefit package, include certain features in a plan, amend a plan and terminate a plan are employer business decisions not governed by ERISA. When making these decisions, an employer is acting on behalf of its business, not the plan, and, therefore, is not a fiduciary. However, when an employer (or someone hired by the employer) takes steps to implement these decisions, that entity is acting on behalf of the plan and, in carrying out these actions, may be a fiduciary.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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ERISA Compliance: What does it mean to be a fiduciary?


        ERISA Compliance: Fiduciary Responsibilities

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Fiduciaries have important responsibilities and are subject to standards of conduct because they act on behalf of participants in a group health plan and their beneficiaries.

ERISA requires fiduciaries to discharge their duties with respect to employee benefit plans:

     • Solely in the interest of plan participants and their beneficiaries.

     • For the exclusive purpose of providing plan benefits, or for defraying
     reasonable expenses of plan administration.

     • With the care, skill, prudence and diligence that a prudent
     person in similar circumstances would use.

     • By diversifying the plan’s investments to minimize the risk of large losses.

     • In accordance with the plan’s documents (unless inconsistent with ERISA).

The duty to act prudently is one of a fiduciary’s central responsibilities under ERISA. It requires expertise in a variety of areas. Lacking that expertise, a fiduciary will want to hire someone with that professional knowledge to carry out those functions. Prudence focuses on the process for making fiduciary decisions. Therefore, it is wise to document decisions and the basis for those decisions. For instance, in hiring any plan service provider, a fiduciary may want to survey a number of potential providers, asking for the same information and providing the same requirements. By doing so, a fiduciary can document the process and make a meaningful comparison and selection.

Following the terms of the plan document is also an important responsibility. The plan document serves as the foundation for plan operations. Employers will want to be familiar with their plan document, especially when it is drawn up by a third-party service provider, and periodically review the document to make sure it remains current. For example, if a plan official named in the document changes, the plan document must be updated to reflect that change.

In addition, a fiduciary should be aware of others who serve as fiduciaries to the same plan, since all fiduciaries have potential liability for the actions of their co-fiduciaries. For example, if a fiduciary knowingly participates in another fiduciary’s breach of responsibility, conceals the breach or does not act to correct it, that fiduciary is liable as well.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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ERISA Compliance: What Are the Possible Consequences of a Fiduciary Breach?


        ERISA Compliance: Fiduciary Responsibilities

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A person who is an ERISA fiduciary can be liable for a breach of fiduciary duty. Fiduciaries who do not follow the basic standards of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of the plan’s assets resulting from their actions. A fiduciary’s liability for a breach may also include a 20 percent penalty assessed by the Department of Labor (DOL), removal from his or her fiduciary position and, in extreme cases, criminal penalties.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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ERISA Compliance: What steps can fiduciaries take to limit their liability?


        ERISA Compliance: Fiduciary Responsibilities

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Fiduciaries can limit their liability in certain situations. One way fiduciaries can demonstrate that they have carried out their responsibilities properly is by documenting the processes used to carry out their fiduciary responsibilities.

A fiduciary can also hire a service provider or providers to handle fiduciary functions, setting up the agreement so that the person or entity then assumes liability for those functions selected. If an employer contracts with a plan administrator to manage the plan, the employer is responsible for the selection of the service provider, but is not liable for the individual decisions of that provider. However, an employer is required to monitor the service provider periodically to ensure that it is handling the plan’s administration prudently.

As an additional protection for plans, every person, including a fiduciary, who handles plan funds or other plan property generally must be covered by a fidelity bond. A fidelity bond is a type of insurance that protects the plan against loss by reason of acts of fraud or dishonesty on the part of individuals covered by the bond. Many individuals dealing with group health plans that pay benefits from the general assets of an employer or union (unfunded) or group health plans that are insured (benefits are paid through the purchase of a group health insurance contract from a licensed insurer) may be eligible for exemptions from the fidelity bonding requirements.

In addition, the DOL maintains a voluntary correction program for fiduciary breaches. The Voluntary Fiduciary Correction Program (VFCP) allows plan officials who have identified certain violations of ERISA to take corrective action to remedy the breaches and voluntarily report the violations to the DOL, without becoming the subject of an enforcement action.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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ERISA Compliance: Employee Contributions


        ERISA Compliance: Fiduciary Responsibilities

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If a plan provides for salary reductions from employees’ paychecks for contribution to the plan or participants make payments directly, such as the payment of COBRA premiums, the employer must deposit the contributions in a plan trust in a timely manner.

ERISA requires that participant contributions be deposited in the plan as soon as it is reasonably possible to segregate them from the company’s assets, but no later than 90 days from the date on which the participant contributions are withheld or received by the employer. If employers can reasonably make the deposits sooner, they need to do so. For plans with fewer than 100 participants, salary reduction contributions deposited with the plan no later than the seventh business day following withholding by the employer will be considered contributed in compliance with the law.


        Important Exceptions to ERISA’s Trust Requirement:


For participant contributions to cafeteria plans (also referred to as Section 125 plans), the DOL will not assert a violation solely because of a failure to hold participant contributions in trust.

Other contributory health plan arrangements may obtain the same trust relief if the participant contributions are used to pay insurance premiums within 90 days of receipt.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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ERISA Compliance: Hiring Service Providers


        ERISA Compliance: Fiduciary Responsibilities

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Hiring a service provider in and of itself is a fiduciary function. When considering prospective service providers, an employer should provide each of them with complete and identical information about the plan and the desired services so that the employer can make a meaningful comparison.

Some actions fiduciaries need to consider when selecting a service provider include:

     • Getting information from more than one provider

     • Comparing providers based on same information
     (for example, services offered, experience and costs)

     • Obtaining information about the provider itself, including financial condition
     and experience with group health plans of similar size and complexity

     • Evaluating information about the quality of the firm’s services, including
     the following (as applicable):

          ◦ The identity, experience and qualifications of professionals who
          will be handling the plan or providing medical services

          ◦ Any recent litigation or enforcement action that has been taken
          against the provider and the provider’s experience or performance record

          ◦ Ease of access to medical providers and information about the
          operations of the health care provider

          ◦ The procedures for timely consideration and resolution of patient
          questions and complaints

          ◦ The procedures for the confidentiality of patient records

          ◦ Enrollee satisfaction statistics

     • Ensuring that any required licenses, ratings or accreditations are up to date
     (for example, insurers, brokers, TPAs, health care service providers)

An employer should document its selection (and monitoring) process, and, when using an internal administrative committee, should educate committee members on their roles and responsibilities.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for employee benefit plans maintained by private-sector employers. ERISA includes requirements for both retirement plans (for example, 401(k) plans) and welfare benefit plans (for example, group health plans). ERISA has been amended many times over the years, expanding the protections available to welfare benefit plan participants and beneficiaries.

ERISA includes standards of conduct for those who manage an employee benefit plan and its assets, who are called “fiduciaries.” This Legislative Brief includes a set of frequently asked questions (FAQs) to help employers understand the basic fiduciary responsibilities applicable to group health plans under ERISA.


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