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Good News for DC Pension Plans in Ontario

Posted on February 16, 2022February 16, 2022 by Benefit Advisors Network

Good news! As of February 11, 2022, pension fund audits are no longer required for Defined Contribution Pension Plans in Ontario. You can find the official regulatory change here.

We note that this applies somewhat retroactively, so for example a DC pension plan with a December 31, 2021 year-end that would have filed their audit by June 30, 2022, falls under these new rules and doesn’t need to get an audit done. DC plans will simply need to file a copy of the unaudited pension fund financial statements going forward.

Note that FSRA can still order an audit be performed in exceptional circumstances – presumably if they’ve lost faith in the pension plan administrator/custodian/recordkeeper – so everyone still needs to be doing a good job even if not audited!

Also, Statements of Investment Policies and Procedures (SIPPs) are no longer required for member-directed DC pension plans in Ontario.

Feel free to reach out if you have any questions.

Thanks,
Jason.

Jason Vary, FCIA, FSA
President

Straight Talk: It’s Not Just Verbal

Posted on February 16, 2022February 16, 2022 by Bobbi Kloss, BAN Director of Human Capital Management

The HR buzz today is around having a company culture that attracts and retains quality employees. We
talk about performance management, succession planning, training, and development, all devised
upon supporting the short-and long-term success of the employee. We support holistic wellbeing
strategies focusing on programs for the physical, emotional, social, and 􀀠financial wellbeing of our employees which in turn strengthens the long-term health of the organization. We seek to have an effective communication strategy that is an essential value for our organizations and evidence of a distinctive culture in the workplace promoting our HR and health and welfare strategies.

Traditionally, we define communication in the workplace by how we talk to each other. Books are
written, trainings held, we subject applicants and employees to workplace personality assessments, all
telling us who we are and how we need to be communicated with in order to co-exist peacefully and
productively in the workplace. Yet, every day, in a variety of industries and companies ranging from small to large, private to public, for-profit and non-profit, we see where miscommunication, lack of communication, and just plain bad communication results in turnover, social media memes, and fodder for the comic strips.

“The Economist Intelligence Unit conducted a survey on turnover and found that “44 percent of U. S.
respondents believe communication barriers lead to project delays, failures, and cancellation. Low morale
was cited because of communication barriers by 31 percent of respondents, while a quarter said that
communication barriers result in missed performance goals.” Are we though just talking about verbal
communication?

Environmental Communication
When as employers we think about communication, we should understand that verbal communication
is not the only form of communication that represents the value an organization places on its employees.
Communication comes in all formats from the company website to the job placement and branding of an
open position, to the of􀀠ice’s physical environment.

Physical location – when an applicant drives up to the company offices, can they picture themselves
going to that of􀀠ice day after day? Are there cigarette butts all over the driveway and in the grass? Is the
building clean and inviting, or old, dingy, and smelly? Are historical records stored in boxes surrounding the cubicles? Are cabinets over􀀠lowing and set-up side by side as long dark pathways down the halls?
In considering the of􀀠ices and cubicle areas, are the desks, chairs and tables piled high with papers that
no one has looked at since COVID started when everyone was sent home to work remote? Yet, when walking back in the office they continue to be left about. Is the paint on the walls chipped and dirty? Do the offices have poor lighting and unwashed windows (if there are windows at all)? Do employees 􀀠fight over the temperature because shared spaces have one area that is too hot and another area that is too cold?

These may sound like working conditions that are far and few between. However, these are many of
the mainstream local businesses that we invite candidates into and allow employees to work within or to
create themselves.

Employee Engagement
Why is it so important that we keep a clean, inviting office? For a couple of very important reasons. First
from a compliance standpoint. The Occupational Safety and Health Act (OSHA) requires an employer under the General Duty Clause to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” We want to ensure that we are providing a safe workplace, preventing accidents from occurring, and keeping health and safety costs to a minimum.

Secondly, from an employee productivity standpoint, a survey conducted by Stratus Building Services
64% of participants responded when asked “How Much Is Your Productivity Compromised By A Dirty
And/or Disorganized Of􀀠ice?” that they cannot focus, their productivity is ruined, it makes the day a struggle, and depending upon the day, it is a problem.

We all want employees engaged and productive. So do the employees. The Future Workplace Wellness
Study has shown that air, light, and temperature have an influence on employee engagement.

Do we spend too much time thinking of wellbeing in relation to work-life balance, gym memberships, and
paid time off policies? Not to say that we should not, however, are we being strategic and looking at all
opportunities to improve the wellbeing of our employees? We should listen to what the employees are
saying. In fact, in the same Workplace Wellness study, only 16% of employees surveyed rated fitness facilities as a priority while 58% prioritized air quality as their top influencer as a performance enhancer.

Healthy Environment = Healthy Business
What does it say to our employees when we do not place a value on the environment in which they are
working? That they are not worth the time, and the investment to us? As HR professionals, CEO’s and other business owners, we walk around and really see our office environment. You could be surprised. And remember, increased productivity means increased revenue.

The Great Resignation Culture

Posted on February 16, 2022February 16, 2022 by Bobbi Kloss, BAN Director of Human Capital Management

Raise your hand, or just groan, if you are having problems with finding candidates these days.

Read the full article

Agencies Issue Additional Guidance on OTC COVID-19 Tests

Posted on February 15, 2022February 15, 2022 by Stacy Barrow

On February 4, 2022, federal agencies released additional FAQs related to coverage of over-the-counter (“OTC”) COVID-19 tests by group health plans and health insurance carriers. The FAQs are intended to clarify the previous FAQs released on January 10, 2022.

Prior Guidance

On January 10, 2022, the agencies released initial guidance for plans and carriers, which required them to cover FDA-approved at-home, OTC COVID-19 tests without cost-sharing, prior authorization, or medical management, and without the need for a prescription or recommendation of a health care provider. These requirements apply during the COVID-19 public health emergency. Notably, plans and carriers are not required to cover OTC COVID-19 tests purchased or used for workplace testing/employment purposes.

Plans and carriers may reimburse participants for their purchase upon submission of a claim or by reimbursing the entity who sold the test directly. The guidance provided for two safe harbors, which permit plans and carriers to:

limit reimbursement to the lower of the actual price or $12 per test if the plan arranges for direct-to-consumer coverage of OTC COVID-19 tests that meet the FFCRA criteria through both its pharmacy network (or another entity designated by the plan or carrier) and a direct-to-consumer shipping program; and
limit coverage to no less than eight (8) tests per Individual for a 30-day or one month period.

In order to limit reimbursements for tests purchased from non-preferred providers, plans must ensure there are an adequate number of retail locations (in-person and online) with access to OTC COVID-19 tests and communicate necessary information about the direct coverage program, including when it is available and which retail pharmacies are available.

New Guidance

The guidance issued on February 4, 2022 (which is generally effective prospectively for purposes of the first 5 bullets below), helps clarify some of the requirements in the initial guidance, and provides the following:

Plans and carriers have flexibility in how they provide access to OTC COVID-19 tests under the first safe harbor. As such, generally the safe harbor applies if the plan provides access to at least one direct-to-consumer shipping mechanism and at least one in-person mechanism. Direct coverage could include the following (and the methods used by the plan must be communicated to participants):
1. Direct-to-consumer shipping that allows orders to be placed by phone or online;
1. directly through the plan’s or carrier’s pharmacy network retailer;
1. other non-pharmacy network retailers (including through distribution of coupons to receive tests from certain retailers without cost-sharing); and
1. alternative OTC COVID-19 test distribution sites such as a standalone drive-through or walk-up distribution site (even if the site operates independently of a pharmacy or retailer).
Whether access to OTC COVID-19 tests is adequate is still determined based on all relevant facts and circumstances, including locality, which tests are covered, utilization, and communication of where tests can be purchased.
Not all OTC COVID-19 tests are required to be covered by the direct coverage program. Depending on the facts and circumstances, plans can limit the number of test manufacturers, such as those with whom the plan has contracted.
Reasonable shipping costs for direct-to-consumer shipping must be covered by the plan.
Plans won’t be penalized for supply chain shortages. Where there is a shortage of tests, the plan may still be able to limit reimbursement to the lower of $12 or the cost of the test for tests purchased outside the direct coverage program if all other requirements under the safe harbor are met.
Reimbursement is intended for tests that can be read by participants at home, not those that are intended to be read by a laboratory or health care provider. Tests that are not approved to be self-administered and self-read are not covered by this guidance; however, they may still be required to be covered by the plan if they are FDA approved and ordered by a health care provider.
Plans can curtail fraud and abuse by limiting coverage of OTC COVID-19 tests that are purchased without involvement of a health care provider to those purchased from established retailers that would typically be expected to sell OTC COVID-19 tests. This means, they could prohibit reimbursement of tests purchased from private individuals (in person or online) or from a seller that uses an online auction or resale marketplace. Further, the plan could require reasonable documentation of proof of purchase that clearly identifies the product and seller, such as a UPC code or other serial number, original receipt from the seller of the test. It is important for plans and carriers to communicate these limitations to participants, and that they do not utilize onerous processes or processes that result in delaying coverage of or access to OTC COVID-19 tests.
Finally, while coverage of OTC COVID-19 expense is a Section 213(d) medical expense which can be reimbursed under an HSA, health FSA or HRA, participants cannot be reimbursed more than once for the same medical expense. Therefore, the cost (or the portion of the cost) of OTC COVID-19 tests paid or reimbursed by a plan cannot also be reimbursed by an HSA, health FSA or HRA. Plans are encouraged to communicate this to participants and to discourage them from using a health FSA or HRA debit card when purchasing the OTC COVID-19 test if they will be seeking reimbursement from the health plan.

Plans and carriers can use this additional guidance to tailor their OTC COVID-19 test coverage, and employers are encouraged to work directly with their carriers and TPAs to ensure they are adequately communicating their OTC COVID-19 testing coverage requirements to participants.

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About the Authors. This alert was prepared by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act. Contact Stacy Barrow or Nicole Quinn-Gato at sbarrow@marbarlaw.com or nquinngato@marbarlaw.com.

This notice is a service to our clients and friends. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.

Benefit Advisors Network and its members are not attorneys and are not responsible for any legal advice. To fully understand how this or any legal or compliance information affects your unique situation, you should check with a qualified attorney.

U.S. Supreme Court Stays OSHA’s ETS for Private Employers with 100 or More Employees; Upholds CMS’ Interim Final Rule for Health Care Workers

Posted on January 13, 2022January 26, 2022 by Stacy Barrow

On January 13, 2022, the United States Supreme Court released its much anticipated opinions in the ongoing challenges to OSHA’s November 5, 2021 Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to either mandate employees be vaccinated or submit to weekly testing and mask mandates, and CMS’ November 5, 2021 Interim Final Rule requiring health care workers working at facilities that receive funding from Medicare or Medicaid to be vaccinated unless they are eligible for a medical or religious exemption.

OSHA ETS

In a 6 to 3 majority, with only Justices Kagan, Breyer, and Sotomayor dissenting, the Supreme Court held that the petitioners (various states and private businesses) were likely to succeed on the merits of their claims that OSHA’s ETS exceeds OSHA’s statutory authority and is otherwise unlawful.

Among other things, the majority recognized that OSHAs statutory authority is limited to occupational hazards, and a global pandemic extends well beyond the workplace, such as creating risks in schools, at home, in churches, and in recreational facilities. Therefore, OSHA has no statutory authority to regulate workplaces with a public health mandate using such a broad stroke; however, the Court recognized OSHA may have the authority to address COVID-19 risks in the workplace for specific, targeted industries, such as workplaces where research on COVID-19 is being conducted.

Accordingly, the OSHA ETS is stayed for private employers with 100+ employees while the issue is fully reviewed and briefed in the 6^th Circuit and any resulting petitions for writ of certiorari to the U.S. Supreme Court, if any, are resolved. Therefore, OSHA cannot enforce its ETS at this time, and may not be able to do so for months, if at all.

CMS Interim Final Rule

On the other hand, the Court upheld the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule, which added a new requirement to existing conditions of participation in Medicare and Medicaid, that requires facilities to ensure that their staff who work on site are vaccinated against COVID–19 unless a staff member is exempt for religious or medical reasons. This requirement was successfully challenged by two groups of states in two separate federal courts; however, the United States Supreme Court held that CMS has the statutory authority to, among other things, impose conditions on entities that receive funding from Medicaid and Medicare that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Further, vaccine mandates for health care workers are not a new concept and many health care workers are already required to receive a number of other vaccines, subject to the same medical and religious exemptions applicable to the COVID-19 vaccine mandate.

Accordingly, the Court lifted the stay for the remainder of the appeals pending in the 5^th Circuit Court of Appeal and the 8^th Circuit Court of Appeal, as well as any resulting challenge upon writ of certiorari presented to the United States Supreme Court. Therefore, health care facilities/employers subject to the CMS Interim Final Rule may require employees to be vaccinated unless a medical or religious exemption applies.

What Does This Mean for Employers?

Employers with 100+ employees who are not subject to the Health Care rule are not required to move forward with developing a plan to implement a vaccine mandate or weekly testing and mask mandate for their employees at this time. This would only change if OSHA is successful on the underlying merits of the case pending before the 6^th Circuit, which may take months to conclude, and the U.S. Supreme Court upholds that decision. In essence, OSHA has a very steep uphill battle ahead of it should it wish to continue pursuing the ETS. For employers/facilities subject to the CMS Interim Final Rule, they must comply with the vaccine mandate for employees who are not eligible for an exemption for religious or medical reasons.

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