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Governmental Affairs Update November 2016

Posted By Governmental Affairs Committee, Tuesday, November 1, 2016
Updated: Sunday, October 30, 2016

Occupational Safety & Health Administration 

Last month, OSHA agreed that it would further delay its enforcement of the anti-retaliation provisions of injury and illness tracking rule until December 1st , 2016.  The U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions.  The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.  Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.   


 Affordable Care Act 

In a painful reminder that the ACA reporting season isn’t as far away as most would like it to be, last month the IRS released the final versions of the forms employers and insurers need to comply with the ACA reporting requirements.   

Form 1094-B: Transmittal of Health Coverage Information Returns 
Form 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns 
Form 1095-B: Health Coverage 
Form 1095-C: Employer Provided Health Insurance Offer and Coverage 

For the most part, the forms and instructions mirror the proposed versions issued earlier this summer, but they do contain changes from the 2015 versions.  Most notably:

  1.  End of “good faith” relief – For the 2015 reporting year, non-compliance penalties could be waived if an employer showed it made a “good faith” effort to comply with the regulations and deadlines.  That “good faith” standard is going away.  For 2016, employers will have to show “reasonable cause” for why it failed to comply in order to receive relief from penalties.  
  2.  Elimination of some “transition relief” Next year, the non-calendar year transition relief for plan years starting in 2014 that applied in 2015 will no longer apply.  This relief exempted applicable large employers (ALEs) from 4980H penalties and reduced the mandatory coverage offering threshold from 95% to 70% of full-time workers.  It also exempted ALEs from having to offer coverage to dependents if certain requirements were met.  For 2016, this relief is still available for non-calendar year plans through the end of the plan year.  But the relief is not available for calendar year plans in 2016.  These plans must meet the 95% threshold and offer dependent coverage during each month of the plan year.    
  3.  New COBRA-related coding – To clear up confusion about how to report COBRA offers of coverage, the IRS updated the instructions in this area.  
  4.  New spousal coverage indicator codes – Likewise, the IRS create new codes for indicating when coverage offerings were made to employees’ spouses.  
  5.  Term “ALE Member” added – Last year, the ACA reporting forms were filed by the “employer”, but that term has been replaced by “ALE Member” in most cases.  The feds changed this term to highlight the fact that each separate ALE Member must file its own forms.  
  6.  Deadlines return to normal – Forms must be filed with the IRS no later than Feb. 28, 2017 (or March 31 if filing electronically).  Statements to individual employees have to be provided by Jan. 31, 2017.
  7.  Penalties are increasing – Failing to provide forms in a timely manner to the IRS or employees can result in fines of $260 per return, with an annual maximum of just under $3.2 million.   

Equal Employment Opportunity Commission 

On October 17, 2016, the EEOC approved an updated Strategic Enforcement Plan (SEP) for fiscal years 2017-2021, setting out its priorities and strategies for the near term.  The SEP builds on a prior plan issued in December 2012.  In the new SEP, the EEOC affirms its commitment to six overarching substantive priorities, while also focusing on several specific, burgeoning areas of law.  Of particular interest, the EEOC intends to emphasize “issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”  

In brief, the purpose of the SEP is to channel and coordinate EEOC efforts and resources so that the agency can “have strategic impact in advancing equal opportunity and freedom from discrimination in the workplace.”  Similar to the 2012 iteration, the SEP identifies the following six substantive, national priorities:  

  1.  Eliminating barriers in recruiting and hiring
  2.  Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination
  3.  Addressing selected emerging and developing issues
  4.  Ensuring equal pay protections for all workers
  5.  Preserving access to the legal system
  6.  Preventing systemic harassment 

In summary, the SEP offers a preview into the EEOC’s expected enforcement priorities as the agency refines its focus and adapts to developing issues.  Employers can reasonably anticipate that EEOC activity in these particular areas will accelerate over the next few years.  Accordingly, employers should take note of the priorities identified in the SEP and closely evaluate issues that may affect them.   

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