Conflicting Views Of Supreme Court’s Contraception Decision Cloud Other Cases

Originally posted July 8, 2014 by Julie Rovner on

The Supreme Court’s decision last week that some for-profit corporations don’t have to comply with the contraceptive coverage mandate under the Affordable Care Act may have raised more questions than it answered. Expect confusion – and arguments – as lower court judges and the Supreme Court itself apply the decision to other cases.

This became apparent soon after the Hobby Lobby ruling when the court granted a temporary injunction to Wheaton College, a Christian school in Illinois. The college argued in a lawsuit that the special provisions provided by the Obama administration allowing it to escape the mandate are still insufficient.

But the order for the college, citing the Hobby Lobby ruling earlier in the week, created some confusion over whether Wheaton employees would still get access to contraceptives under the law. And the order provoked a blistering dissent from Justice Sonia Sotomayor, joined by the court’s two other female members, Justices Ruth Bader Ginsburg and Elena Kagan. They argued that the majority was already breaking with the precedent it established only days earlier.

Here are some of the questions raised by the Hobby Lobby case and the remaining cases also challenging the contraceptive coverage mandate.

What is the contraceptive mandate?      

As part of the Affordable Care Act, most health insurance plans are required to cover, with no cost-sharing beyond premiums, a wide array of preventive health benefits. For women, that includes all contraceptives approved by the Food and Drug Administration, as well as sterilization procedures and patient education and counseling.

The mandate does not include coverage of RU-486 (mifepristone), the drug used for medical abortions after a pregnancy has been established. But it does require coverage of emergency contraceptives and intrauterine devices, which some believe can prevent the implantation of a fertilized egg. (Newer research suggests that is probably not the case, by the way.)

Who has sued to try to block the mandate?

There have been two separate sets of court cases challenging the contraceptive coverage requirements.

The first set comes from for-profit corporations that, under the law and accompanying federal regulations, are required to provide the benefits as part of their insurance plans. According to the National Women’s Law Center, there have been 50 cases filed by for-profit firms, while the Becket Fund for Religious Justice, which is representing many of those suing, counts 49. Most of those companies charged that the requirement to provide some or all of the contraceptives in question violated their rights under a 1993 federal law, the Religious Freedom Restoration Act (RFRA.)

The cases filed by Hobby Lobby, a nationwide arts-and-crafts chain, and Conestoga Wood Specialties, a Pennsylvania cabinet-making firm, were the first of those to reach the Supreme Court for a full hearing.

Religious nonprofit entities, mostly religious colleges and universities and health facilities, filed the second set of cases. The NWLC counts 59 nonprofit cases; the Becket fund, 51.

The Obama administration, under regulations issued by the Department of Health and Human Services in 2013, is not requiring those organizations to directly “contract, arrange, pay for, or refer” employees to contraceptive coverage. But the organizations say the process by which they can opt out of providing the coverage, which involves filling out a form and sending it to their insurance company or third-party administrator, still violates their religious beliefs by making them “complicit” in providing something they consider sinful.

What did the Supreme Court rule in the Hobby Lobby case?

The majority opinion written by Justice Samuel Alito said that “closely held corporations,” including those like Hobby Lobby and Conestoga Wood Specialties, can exercise religious rights under RFRA. Further, because the Obama administration was requiring those firms to directly provide the coverage, rather than offer them the same accommodation it was offering religious nonprofit groups, the requirement was not “the least restrictive means” of ensuring that women can get contraception and thus a violation of the law.

In making the case for Hobby Lobby and Conestoga Wood, Justice Alito went out of his way to praise the accommodation for religious nonprofits, saying it “does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’ stated interests.”

What impact has the Hobby Lobby decision had on pending nonprofit cases?

A fairly substantial one. Later that same day the Hobby Lobby decision was handed down, a federal appeals court in Atlanta cited it in issuing an injunction against enforcing the mandate against the Eternal Word Television Network.

But the real fireworks erupted on July 3, when the Supreme Court granted its own injunction in the case filed by Wheaton College.

The unsigned order required the college to write to the Secretary of Health and Human Services, stating “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” The order specifically said the college “need not use the form prescribed by the government, EBSA Form 700, and need not send copies to health insurance issuers or third party administrators.”

Justices Sotomayor, Ginsburg, and Kagan were furious.

“Those who are bound by our decisions usually believe they can take us at our word. Not so today,” Sotomayor wrote. “After expressly relying on the availability of the religious nonprofit accommodation to hold that that the contraceptive coverage requirement violates RFRA as applies to closely-held for-profit corporations, the court now, as the dissent in Hobby Lobby feared it might…retreats from that position.”

What happens now?

The court made clear that in granting Wheaton College its injunction (as it did earlier this year in a case filed by the Denver-based Little Sisters of the Poor), it was not prejudging the case. “This order should not be viewed as an expression of the Court’s views on the merits,” it said.

But what is less clear is whether people covered by the health plans of those nonprofit organizations that are still in litigation will have access to no-copay contraceptive coverage.

The Supreme Court majority appears to think they can be covered. “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the order said. “The government contends the applicant’s health issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether the applicant completes EBSA Form 700.”

The Obama administration, however, seems not so sure that will happen. “An injunction pending appeal would deprive hundreds of employees and students and their dependents of coverage for these important services,” the Justice Department wrote in its memorandum to the court.

One thing that is clear: Many more of these cases are yet to be decided by many more courts.

Hobby Lobby ruling spilling over to corporate world

Originally posted July 10, 2014 by Alan Goforth on

Both proponents and opponents of the recent ruling by the U.S. Supreme Court in the Hobby Lobby contraception case agree on at least one thing: The case may be settled, but how it will play out in the workplace is far from certain.

The court ruled that the 1993 Religious Freedom Restoration Act prevents certain employers from being forced to pay for contraceptives they oppose for religious reasons. However, the definition of which types of corporations are excluded remains murky.

"Nobody really knows where it is going to go," said Richard Primus, professor of constitutional law at the University of Michigan. "I assume that many more businesses will seek exemptions, not just from the [Patient Protection and] Affordable Care Act, but from all sorts of things they want to be exempt from, and it will put courts in a difficult position of having to decide what is a compelling government interest."

About 50 lawsuits filed by corporations nationwide, which were put on hold during the Hobby Lobby appeal, must now be resolved or re-evaluated. "We don't know ... how the courts will apply that standard," Primus said.

The decision also has ramifications beyond the courtroom. Even closely held companies with sincere religious beliefs must carefully consider the potential marketplace ramifications of crafting health-care coverage according to religious beliefs.

"Many owners of companies don't want to distinguish the difference between what's good for them personally and what's good for their business," said John Stanton, professor of food marketing at Saint Joseph University in Philadelphia. "I believe that if a business owner believes something is the right thing to do — more power to them. That's his business. However, he's got to be ready for the negative repercussions."

Eden Foods of Clinton, Mich., a natural-foods manufacturer, has filed a lawsuit and is balancing religious beliefs and business concerns. Since Eden initially filed its lawsuit last year over mandates to cover birth control in PPACA, some customers have taken to social media to express disapproval and outrage, even threatening a social boycott. However, the corporation also has gained new customers who support its stance.

"It's very conceivable they could lose business," said Michael Layne, president of Marx Lane, a public relations firm in Farmington Hills, Mich. "And they could lose employees, too."

Experts agree that the myriad issues raised by the Hobby Lobby decision could take a while to play out. "I think there will be a rush of litigation in the next year or two," Primus said. "I think that the exemptions are likely to get broader before they are limited."


High court nullifies contraceptive mandate for family-owned businesses

Originally posted June 30, 2014 by Jerry Geisel on

Family-owned for-profit employers cannot be forced by the federal health care reform law to provide coverage for prescription contraceptives, the U.S. Supreme Court ruled 5-4 on Monday.

The decision, written by Justice Samuel Alito for the majority, came in a challenge to the prescription contraceptive mandate filed by three companies owned by Christian families — Oklahoma City-based Hobby Lobby Stores Inc. and Mardel Inc. and East Earl, Pennsylvania-based Conestoga Wood Specialties Corp. — which argued they should be exempt because of their religious objections to a Patient Protection and Affordable Care Act provision that requires employers with 50 or more full-time employees to provide group health plan enrollees with cost-free coverage of contraceptive prescriptions and services as part of the ACA preventive care mandate.

The mandate as it applies to privately held corporations violates the 1993 federal Religious Freedom Restoration Act, which bars the federal government from actions that substantially burden the exercise of religion, the court ruled.

“We hold that the regulations that impose the obligation violate RFRA, which prohibits the federal government from taking any action that substantially burdens the exercise of religion,” the majority ruled. “The plain terms of RFRA make it perfectly clear that Congress did not discriminate this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”

“Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them,” the court ruled.

The high court noted, however, that that the ruling applies only to family-owned businesses, not to publicly traded corporations, which the justices said would be unlikely to assert religious rights.

“The idea that unrelated shareholders — including institutional investors with their own set of stakeholders — would agree to run a corporations under the same religious beliefs seems improbable,” the high court ruled.

The court also said there could be alternative ways to provide contraceptives to people who work for family-owned organizations with religious objections to contraceptives — ones that would not violate corporate owners' religious rights.

“The most straightforward way” of accomplishing this, the court said, would have the government provide contraceptive coverage to women who work for employers with religious objections to prescription contraceptives.

Another alternative approach, the justices said, could be businesses' third-party administrators obtaining contraceptive coverage without payment from the employer. The government already extends that option to nonprofit organizations with religious objections to prescription contraceptives.

Several organizations, though, are challenging that approach.

While the justices struck down the contraceptive mandate for companies whose family owners have religious objections to contraceptives, they said it does not negate all insurance-related mandates, such as vaccinations or blood transfusions.


One-Third of Workers Say ACA Will Delay Their Retirement

Originally posted May 27, 2014 on http://annuitynews.comACA-123rf-24247155_m

Although the Congressional Budget Office projects a smaller U.S. workforce in coming years as a result of the Affordable Care Act (ACA), the majority of American workers don't believe that the ACA will allow them to retire any sooner, according to a new survey from On the contrary, the Op4G-conducted survey indicates that one-third of workers expect that the ACA – also known as Obamacare – will raise their health care costs and thereby force them to retire later than they previously anticipated.

One-quarter of respondents felt that Obamacare would have no impact on their retirement date, and another one-quarter weren't sure how it would impact their retirement. Those who felt Obamacare would allow them to retire earlier were the smallest segment of respondents at 17 percent.

Many of the workers who indicated that Obamacare would delay their retirement said that the delay would be lengthy. Seventy percent of those respondents said they expected the delay to be at least three years, including the 39 percent who said it would be at least five years. The respondents who said they expected an earlier retirement were more moderate in their projections, with 71 percent indicating it would hasten their retirement by three years or less.

Richard Barrington, CFA, senior financial analyst for and author of the study, says that the purpose of the survey wasn't to determine whether Obamacare would truly delay or hasten anyone's retirement, but rather to gauge the fear and uncertainty that surround the program today.

"It's too early to tell whether Obamacare will actually delay people's retirements," says Barrington. "But what's clear at this point is that the program has created a lot of concern about health care costs as a burden on workers and retirees."

Barrington adds that whether or not these concerns are warranted, there are steps workers can take to better manage their health care costs in retirement, including budgeting for health insurance within their retirement plans, shopping regularly for better deals on insurance and using a health savings account as a way of handling out-of-pocket medical expenses.

"The poll reflects a high degree of uncertainty over the impact of Obamacare on retirement," says Barrington. "One way to reduce the uncertainty is to take active steps to manage how health care will affect your retirement."

Employer-Sponsored Health Care Facts of Life

Originally posted May 23, 2014 by Donna Fuscaldo on

High deductible health insurance plans are a fact of life, particularly for the employees of small businesses. But it doesn’t have to hurt morale or loyalty among workers. There are ways small business owners can help defray some of the costs if high deductible insurance plans are all they can offer.

“With the Affordable Care Act there is clearly a movement toward higher deductible plans,” says Barry Sloane, CEO of Newtek, a health insurance agency for small businesses. “Unfortunately higher deductibles are a fact of life whether you live in New York or Nebraska.”

In an effort to keep costs down and incentivize employees to curb some of the unnecessary visits to the doctor or specialists, employers of all sizes are making high deductible plans an option, and in some cases the only one.

That’s particularly true with small business owners who can barely afford to offer health insurance, let alone plans with low deductibles and limited cost sharing. As a result, experts say the era of high deductible health insurance plans and more of the burden being passed on to the employee is here and will likely stay. That change in the way health care is offered to employees can breed resentment and anger among workers, which in turn can have a negative impact on the overall business.

But there are things small business owners can do to reduce the burden. One way, according to Kevin Luss, owner of Luss Group, is to offer employees a medical bridge policy to neutralize the deductible and other out-of-pocket costs employees face.

At Luss Group, brokers work with employers to create a health plan that limits the cost sharing for the least frequent things like hospitalization, surgeries and outpatient procedures and with the savings, a medical bridge policy is taken out to insure employees from high deductibles associated with those expensive but less frequent medical needs. There are numerous ways to design the plan, but one option could be if one of the employees is admitted to the hospital he or she gets a lump sum of $3,000 in addition to a daily amount for the length of the admission.  In that case, an employee who has a $5,000 deductible would only pay part of that out of pocket because the medical bridge policy covers the rest.

“The employer saves money by offering high deductible plans and uses part of the savings for the bridge plan,” says Luss. “These plans aren’t very expensive and in the long rung the employer saves money.”  The rules and what is offered varies state by state.

For many small businesses footing the bill for a medical bridge policy isn’t an option, but they can offer it as a supplemental choice for employees. According to Nancy Thompson, senior vice president and director of sales at CBIZ Benefits and Insurance, employers who are providing high deductible plans can also offer the option of hospital indemnity and critical illness insurance, which will defray some of the costs associated with the high deductible plan. While it will cost employees more money, albeit not a lot, in exchange they’ll get one-on-one counseling with a benefits consultant, so they are making the right choices when it comes to their healthcare.

“Employees are going to experience gaps in coverage that they haven’t in the past,” says Thompson. “The right supplemental product is paramount when you go to a high deductible plan.”

Hand in hand with offering high deductible plans is providing the ability for employees to use pretax dollars for medical costs, which is where health savings accounts come into play. With a health savings account, funds contributed aren’t taxed and the money accumulated can be rolled over to the next year. Some employers who contribute to health savings accounts can increase their contribution to offset any bad feelings from offering a high deductible plan, says Sloane.

Another option, according to Richard Mann, Chief Product Officer at PlanSource, is offering a defined contribution toward benefits. Basically it’s a predetermined amount the employer agrees to contribute to each employee’s benefits spending.

“This helps employers control spending because the amount is fixed, but allows employees to use the amount in whatever way they think is best,” says Mann.

At the end of the day, knowledge may be the best way a small business owner can help their employees with their health-care costs. The whole idea behind these high deductible health plans is to get people to think before they get that test done or have blood drawn.

According to Sloane, arming employees with all the information about the plan, ensuring they know which doctors are in network and out of network, and all the benefits associated with the plan (including preventive care), can go a long way in keeping out of pocket costs down. It’s also a good idea to give employees access to the actual costs of health-care services, adds Mann. Knowing, for example, that the cost of a MRI can vary by as much as $1,000 will make employees more savvy consumers of health care, he says.

“It’s very valuable for the business to make an investment in the HR department and educate their staff as to how to keep claims down,” notes Sloane. “People need to pay more attention to health care. It’s not as simple as it used to be.”

Employer Mandate Repeal Won’t Relinquish Employers From ACA Compliance

Originally posted May 13, 2014 by Melissa A. Winn on

Eliminating the Affordable Care Act’s employer mandate would not significantly reduce the number of insured Americans, according to a recent analysis by researchers at the Urban Institute in Washington. But, it would also not eliminate your employer client’s need to maintain an ACA-compliant plan, one industry expert notes.

Completely abandoning the employer shared responsibility rule would reduce the number of people in 2016 with health insurance from 251.1 million to 250.9 million, a decrease of just 200,000 people, the report says, adding that it would also eliminate labor market distortions in the law and lessen opposition to the law from employers.

Regardless of whether the mandate is eliminated, however, work will remain for benefit advisers helping employers meet ACA compliance, says Jessica Waltman, senior vice president of government affairs for the National Association of Health Underwriters.

“Maintaining an ACA-compliant plan requires a lot of other components,” she says. “Employers have to comply with all of the market reforms and notice requirements and offer all of the benefit mandates, as well,” requirements brokers and agents can assist employers with, she says.

“There are significant penalties for not maintaining ACA compliance” with other requirements of the health law, such as limits on mandatory waiting periods, she adds.

Also, employer-sponsored health plans will not go away if the employer shared responsibility rule is eliminated, she says, noting that the value of benefit advisers will remain there, as well. “The vast majority of businesses affected by the mandate offered coverage before the mandate.”

The authors of the analysis — Why Not Just Eliminate the Employer Mandate? — agree. About two thirds of American workers now have offers of employer coverage when there is no mandate to do so, they write. “Most employers would not drop coverage if the penalties were eliminated,” the report says.


Ending the employer responsibility rule would, however, eliminate the federal revenue expected from penalty payments that employers would pay under the law, which the authors estimate at just less than $4 billion in 2016. Slight increases in Medicaid and marketplace subsidies due to the elimination of the employer requirement would also cost the government about $46 billion between 2014 and 2023.

Alternative sources of revenue would have to be found to compensate for the federal loss of penalties, the analysis notes.

The Internal Revenue Service in February issued final guidance saying that employers with fewer than 100 employees won’t have to provide health insurance coverage until Jan. 1, 2016.

Previously, on July 2, 2013, the Obama administration delayed the need for all employers with 50 or more employees to provide health insurance coverage until Jan. 1, 2015.

Employers Eye Moving Sickest Workers To Insurance Exchanges

Originally posted May 7, 2014 by Jan Hancock on

Can corporations shift workers with high medical costs from the company health plan into online insurance exchanges created by the Affordable Care Act? Some employers are considering it, say benefits consultants.

"It's all over the marketplace," said Todd Yates, a managing partner at Hill, Chesson & Woody, a North Carolina benefits consulting firm. "Employers are inquiring about it and brokers and consultants are advocating for it."

Health spending is driven largely by patients with chronic illness such as diabetes or who undergo expensive procedures such as organ transplants. Since most big corporations are self-insured, shifting even one high-cost member out of the company plan could save the employer hundreds of thousands of dollars a year -- while increasing the cost of claims absorbed by the marketplace policy by a similar amount.

And the health law might not prohibit it, opening a door to potential erosion of employer-based coverage.

"Such an employer-dumping strategy can promote the interests of both employers and employees by shifting health care expenses on to the public at large," wrote two University of Minnesota law professors in a 2010 paper that basically predicted the present interest. The authors were Amy Monahan and Daniel Schwarcz.

It's unclear how many companies, if any, have moved sicker workers to exchange coverage, which became available only in January. But even a few high-risk patients could add millions of dollars in costs to those plans. The costs could be passed on to customers in the form of higher premiums and to taxpayers in the form of higher subsidy expense.

Here's how it might work. The employer shrinks the hospital and doctor network to make the company plan unattractive to those with chronic illness. Or, the employer raises co-payments for drugs needed by the chronically ill, also rendering the plan unattractive and perhaps nudging high-cost workers to examine other options.

At the same time, the employer offers to buy the targeted worker a high-benefit "platinum" plan in the marketplaces. The plan could cost $6,000 or more a year for an individual. But that's still far less than the $300,000 a year that, say, a hemophilia patient might cost the company.

The employer might also give the worker a raise to buy the policy directly.

The employer saves money. The employee gets better coverage. And the health law's marketplace plan --required to accept all applicants at a fixed price during open enrollment periods -- takes on the cost.

"The concept sounds to[o] easy to be true, but the ACA has set up the ability for employers and employees on a voluntary basis to choose a better plan in [the] Individual Marketplace and save a significant amount of money for both!" says promotional material from a company called Managed Exchange Solutions (MES).

"MES works with [the] reinsurer, insurance carrier and other health management organizations to determine [the] most likely candidates for the program."

Charlotte-based consultant Benefit Controls produced the Managed Exchange Solutions pitch last year but ultimately decided not to offer the strategy to its clients, said Matthew McQuide, a vice president with Benefit Controls.

"Though we believe it's legal" as long as employees agree to the change, "it's still gray," he said. "We just decided it wasn't something we wanted to promote."

Shifting high-risk workers out of employer plans is prohibited for other kinds of taxpayer-supported insurance.

For example, it's illegal to induce somebody who is working and over 65 to drop company coverage and rely entirely on the government Medicare program for seniors, said Amy Gordon, a benefits lawyer with McDermott Will & Emery. Similarly, employers who dumped high-cost patients into temporary high-risk pools established by the health law are required to repay those workers' claims to the pools.

"You would think there would be a similar type of provision under the Affordable Care Act" for plans sold through the marketplace portals, Gordon said. "But there currently is not."

Moving high-cost workers to a marketplace plan would not trigger penalties under the health law as long as an employer offered an affordable companywide plan with minimum coverage, experts said. (Workers cannot use tax credits to help pay exchange-plan premiums in such a case, either.)

Half a dozen benefits experts said they were unaware of specific instances of employers shifting high-cost workers to exchange plans. Spokespeople for AIDS United and the Hemophilia Federation of America, both advocating for patients with expensive, chronic conditions, said they didn't know of any, either.

But employers seem increasingly interested.

"I have gotten probably about half a dozen questions about it in the last month or so from our offices around the country," says Edward Fensholt, director of compliance for the Lockton Companies, a large insurance broker and benefits consultant. "They're passing on questions they're getting from their customers."

Such practices could raise concerns about discrimination, said Sabrina Corlette, project director at the Georgetown University Center on Health Insurance Reforms.

They could also cause resentment among employees who didn't get a similar deal, Fensholt said.

"We just don't think that's a good idea,” he said. "That needs to be kind of an under-the-radar deal, and under-the-radar deals never work," he said. Plus, he added, "it's bad public policy to push all these risks into the public exchange."

Hill, Chesson & Woody is not recommending it either.

"Anytime you want to have a conversation with an employee in a secretive, one-off manner, that's never a good idea," Yates said. "Something smells bad about that."

Measuring leaves of absence in concert with the ACA

Originally posted May 7, 2014 by Ed Bray, J.D. on

I can unequivocally say that administering employee leaves of absence has been the most challenging responsibility of my HR career. Why? For every employee leave you must ensure that an orchestra of different people, laws, and systems play in perfect concert with each other.  Not an easy task when you consider the following:  trying to determine who and when employees are on leave; often abiding by multiple, complex leave laws; and dealing with HRIS tracking shortcomings (if you even have a tracking system).

OK, so what’s my point?  Thanks to the Affordable Care Act, many organizations’ leave of absence orchestras are going to need to start sounding like the London Symphony Orchestra in the next few months.

Organizations that are required to follow the shared responsibility (play or pay) rules that use the look-back measurement period to determine whether variable hour, seasonal, or part-time employees are eligible for employer health insurance benefits must ensure each employee’s average hours of service are calculated accurately for the initial and standard measurement periods.   A key component of the average hours of service calculation is the impact of any employee special unpaid leave (FMLA, leave under USERRA, and jury duty) during the respective measurement period.

The final regulations for the employer shared responsibility rules state that “special unpaid leave” may be defined as unpaid leave under the Family and Medical Leave Act of 1993, the Uniformed Services Employment and Reemployment Rights Act of 1994, or jury duty.  When calculating hours of service for a look-back measurement period, the employer must treat special unpaid leave in one of two ways:

▪       Determine the employee's average hours of service by excluding any periods of special unpaid leave during the measurement period and applying that average for the entire measurement period, or

▪       Impute hours of service during the periods of special unpaid leave at a rate equal to the average weekly hours of service for weeks that are not part of a period of special unpaid leave.

That said, it is critical that each employee’s average hours of service calculation accurately reflects any “special unpaid leave” as any employees that average under 30 hours of service per week or 130 hours of service per calendar month for the respective measurement period do not need to be offered employer-sponsored benefits.  Many employees not offered benefits will be significantly affected as they will be required to enroll in some form of minimum essential coverage or else face a penalty under the ACA individual mandate. In addition, they may feel their hours of service calculation is incorrect and call the Department of Labor to express their concerns.

I recommend organizations focus on making three key business decisions as they prepare for the shared responsibility rules, effective in 2015 for employers with 100 or more full-time employees, including full-time equivalents (FTEs), and in 2016 for some employers with 50-99 full-time employees, including FTEs (certain conditions apply):

▪       How to accurately track employee leaves of absence.

▪       How to handle unpaid state and company leaves of absence for purposes of the measurement period calculations.

▪       Determine which ACA “special unpaid leave” process to use.

Ensure accurate leave of absence tracking

First meet with executive management to make them aware of the shared responsibility rules and noncompliance penalties plus gain support for doing what is necessary to ensure accurate leave of absence tracking. This includes the following (at a minimum):

▪       Making managers and employees aware of the importance of communicating employee leaves of absence to the HR department as soon as they learn about or need them;

▪       Meeting with the IT department to see if they can: 1) accurately track leaves of absence; 2) track different types of leaves; and 3) provide reporting of such leaves during the initial and standard administrative periods. If not, develop a leave of absence tracking mechanism within the HR department.

Handling unpaid state and company leaves of absence for purposes of the measurement period calculations

The federal government has stated its position with regards to three special unpaid leaves, but what about state or company unpaid leaves of absence? How should they be treated under the look-back measurement period calculations?

Given the fact that there is legal uncertainty regarding the answer to this question and handling such a situation incorrectly could have significant ramifications for your organization, I recommend consulting legal counsel to determine the answer for your organization.

Determine which ACA special unpaid leave process to use

I recommend selecting the ACA special unpaid leave process that is going to be the least administratively challenging given all of the new responsibilities associated with the leave of absence tracking process. To date, I have seen more employers select the exclusion method.

So, start tuning up your leave-of-absence orchestra because the effective dates for the shared responsibility rules are right around the corner.

Protecting the next generation of workers with voluntary benefits

Originally posted May 1, 2014 by Andrea Davis on

As the Affordable Care Act continues to make its presence felt, and as employers look for new ways to control their health care costs and shift more of the responsibility for benefit decision-making on to employees, the role of voluntary benefits is changing. Once viewed as a nice-to-have benefit, some say voluntary benefits should now be advertised and heavily promoted to employees as an important component in their overall portfolio of benefits.

“It’s part of a trend sweeping the industry,” says Chris Hill, CEO of Spotlite, an online enrollment technology company. “This level of [benefits] engagement has never really been required before.”

Rewind a few years to benefit plans with low deductibles and rich benefits and “these supplemental products [were] less relevant,” he says. “Now you’re asking employees to meet a $2,500 or $5,000 deductible and they have to understand how the [health savings account] or [flexible spending account] works with that and why an accident plan, for example, may be complementary to the high deductible plan.”

Millennials in particular can benefit from education about voluntary benefits. While they may view themselves as invincible, they actually have a lot to protect. “They’re not really thinking about all those what-ifs, but probably more than any other generation, they have something to protect,” says Alison Daily, second vice president of clinical and vocational services at The Standard. “They’re very highly educated. A third of them have four-year college degrees, but that comes with a big price tag for them. The average millennial has $29,000 in student loan debt alone.”

And yet millennials are either unaware of voluntary benefits or reluctant to purchase them. Sixty-nine percent of employees age 25-29 don’t own any voluntary benefits, while 71% of those under age 25 don’t own any voluntary products, according to statistics from Eastbridge Consulting Group. Among older age groups, 60% of 45-49-year-olds own some type of voluntary product.

Still, there’s evidence that millenials value voluntary benefits and that the availability of these products may increase employees’ loyalty to the company. According to MetLife’s 12th Annual U.S. Employee Benefit Trends Study, 86% of Generation Y value having benefits personalized to meet their individual circumstances and age.

The challenges of engaging this tech-savvy group are well-known. Millennials have high expectations when it comes to technology and the overall online purchasing process. This is a group that “sends thousands of text messages on a monthly basis,” says Hill. “You’ve got to compete for their limited attention span so those communications need to be highly relevant.”

But for all the talk about how different Millennials are from other generations, Daily believes good communication resonates with everyone, regardless of age. “I think that maybe one of the mistakes people make, or confusion they have, is that the millennials are very different from their non-millennial peers,” she says. “They’re probably not as different as we think.”

Awareness vs. purchase

Still, there are tactics employers can use to better engage millennials in their voluntary benefits, starting with separating the process in their own minds between initial education and purchase.

“You have the initial communication about benefits – what the benefits are, here’s why you should care,” says Hill. Employers should strive for “concise messaging that drives an action and the action you want to drive upfront is getting the employee to learn about what’s offered to them,” he says.

He encourages employers to actively look at email open rates to get a better understanding of subject lines that resonate with millennials. “Relevant information, relevant subject lines, relevant email layouts, relevant electronic communications are going to drive that action,” he says.

Once employers are past that initial awareness phase and on to open enrollment, “you’re adhering to those same principles – how are we going to capture the attention of the user?” says Hill. “Here we actually want to drive decision making about the products.”

It’s that second sale – the actual purchase of voluntary benefits – that gets tricky with millennials, believes Hill, because they tend to say: “I don’t want to call somebody about this product. I want all the information online so I can make a decision. I don’t want to meet with someone or fill out a piece of paper.”

But when it comes to benefits, millennials’ reliance on technology and self-service might be overstated. Face-to-face meetings are still important, even for this generation, says The Standard’s Daily. “I think sometimes [employers] may be thinking it’s got to be glitzy, that they’ve got to text [millennials] or something like that, but really just sitting down with a millennial and going over what these benefits mean … I think it’s the cornerstone to helping them make the right decision.”

The Eastbridge data appear to back up Daily’s assertion. When asked which of several ways they prefer to learn about voluntary benefits, just over half (55%) of employees representing a spectrum of ages chose “speaking with someone in person.” Twenty-one percent, meanwhile, chose “on my own.”

Daily also emphasizes employers shouldn’t feel they have to do all this communication on their own. In fact, she recommends they turn to their benefit brokers and carriers first, before starting any kind of communication program about voluntary. Another tactic, she says, is using peer-to-peer discussions.

“The millennial generation really values recommendations. If you think about looking for a new restaurant you think about Yelp, and the same thing applies to deciding to select disability coverage,” she says. “They’re going to look to their peers to help them make that decision, so having real stories about why colleagues chose to enroll in a benefit may be just what that millennial needs to make that decision to enroll.”

In addition, employers can leverage other successful communication campaigns. “Employers should really think about anything they’ve already done where they successfully communicated to employees and leverage that strategy,” says Daily. “I would look to the leaders of that event and say: ‘What did you do and why did it work?’ Employers may already have some of the skills and they just aren’t thinking about it in that way.”

And while it might seem like a no-brainer, an online enrollment system that facilitates a seamless shopping experience is important for millennials and all employees, for that matter. Not only that, but a mobile site that’s easy to navigate whether employees are using their laptop, iPhone, iPad or Android device.

“If I get an email from Amazon promoting a product I really want and I click on that email and then go on a wild goose chase to find that product, you’re going to lose users and buyers,” says Hill, who also cautions that all the benefit communication in the world is for naught if the buying experience isn’t simple. “If I do a great job communicating these benefits to millennials and then they have to go on to a system that looks like it was built in 1995, and the initial communications are very different than the actual purchase experience, we think that’s really bad. You’re going to lose millennials, who are used to things being easy.”

Among Spotlite’s clients, about 15% of employees use a mobile device to shop for benefits. As mobile devices and smartphones get more sophisticated and make inroads among older generations, Hill only expects this to grow. “Mobile is necessary. It’s something you have to have,” he says. “Enrollment needs to be easy for the end user. So you make it easy by offering it on a computer or a mobile device. It’s a necessary access point for individuals.”