Human Resources

The Washington Report

September 22, 2021



Departments Release ACA Final Rule: Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond Final Rule; Annual Enrollment Period Also Extended 30 Days
On September 17, 2021, the Departments of Health and Human Services (HHS) and the Treasury (the Departments) released a final rule on the Affordable Care Act (ACA) that sets forth revised 2022 user fee rates for issuers offering qualified health plans (QHPs) through federally facilitated Exchanges and state-based Exchanges on the federal platform; repeals separate billing requirements related to the collection of separate payments for the portion of QHP premiums attributable to coverage for certain abortion services; expands the annual open enrollment period and Navigator duties; implements a new monthly special enrollment period for qualified individuals or enrollees, or the dependents of a qualified individual or enrollee, who are eligible for advance payments of the premium tax credit (APTC) and whose household income does not exceed 150 percent of the federal poverty level, available during periods of time during which APTC benefits are available such that certain applicable taxpayers’ applicable percentage is set at zero, such as during tax years 2021 and 2022 under Section 9661 of the American Rescue Plan Act of 2021; repeals the recent establishment of a Direct Enrollment option for Exchanges; and modifies regulations and policies related to Section 1332 waivers.

In this final rule, the Departments “finalize standards for issuers, Marketplaces, and Navigators. This rule is a continuation of the recent rulemaking process, as seen in Parts 1 and 2 of the Notice of Benefit and Payment Parameters for 2022 final rule, published on January 19 and May 5, 2021, respectively. Overall, the rule expands access to health insurance coverage through the Marketplaces by lengthening the annual Open Enrollment Period, restoring and expanding Navigator duties, and minimizing burden and confusion for consumers.” (The final rule extends the Marketplace open enrollment period from November 1, 2021, to January 15, 2022, for states using Enrollment previously ended on December 15.)

The news release is available here.

The Fact Sheet is available here.

The final rule is temporarily available here.
(From the Notice: This HHS and Treasury-approved document has been submitted to the Office of the Federal Register (OFR) for publication and has not yet been placed on public display or published in the Federal Register. The document may vary slightly from the published document if minor editorial changes have been made during the OFR review process. The document published in the Federal Register is the official HHS and Treasury-approved document.)



Agencies Seek Public Comment on Proposed Revisions to Form 5500; EBSA Releases Proposed Rule on Revisions to the Annual Information Return/Report Forms Under SECURE Act
On September 14, 2021, the Employee Benefits Security Administration (EBSA), the Internal Revenue Service, and the Pension Benefit Guaranty Corporation (the Agencies) jointly announced proposed revisions to the Form 5500 Annual Return/Report forms filed for employee pension and welfare benefit plans. The EBSA simultaneously published a proposed rule to implement the proposed forms changes under ERISA. The proposals are intended to implement changes to the Form 5500 annual reporting under the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) including changes necessary for reporting for Pooled Employer Plans. The Agencies are also proposing certain changes to improve reporting on single-employer and multiemployer defined benefit pension plan funding, enhance Form 5500 financial reporting and make the data collected more usable, improve tax compliance reporting, and improve reporting of participating employer information by multiple employer welfare arrangements. Comments on both the proposed rule and forms revisions are due by November 1, 2021. The rules are proposed to be effective for plan years beginning on or after January 1, 2022.

The news release is available here.

A Fact Sheet is available here.

The proposed rule is available here.

The notice of proposed forms revisions is available here.

Other HR/Employment


DOL Announces Extension of Effective Date of Joint Employer Rule to October 5, 2021
On September 20, 2021, the Department of Labor (DOL) released a final rule announcing the extension of the effective date of a final rule to rescind an earlier rule, “Joint Employer Status under the Fair Labor Standards Act (FLSA),” that took effect in March 2020. The original September 28, 2021, effective date of the rescission is now October 5, 2021.

On March 12, 2021, the DOL issued a notice of proposed rulemaking proposing to rescind the March 2020 Joint Employer Rule. After reviewing the comments submitted in response to the Notice of Proposed Rulemaking, the DOL decided to finalize the rescission of the rule. The DOL “believes that the rule narrowed the test for vertical joint employment improperly and conflicted with decades of department interpretation, the text of the Fair Labor Standards Act, and congressional intent.” Under the FLSA, an employee can have more than one employer for the work they perform. Joint employment applies when — for the purposes of minimum wage and overtime requirements — the DOL considers two separate companies to be a worker’s employer for the same work.

The rescission will result in the removal and reserving of Part 791 of Title 29 of the Code of Federal Regulations in its entirety. The DOL will continue to consider legal and policy issues relating to FLSA joint employment before determining whether alternative regulatory or sub-regulatory guidance is appropriate. The DOL also stated that until the effective date of the rescission of the Joint Employer Rule, Part 791 of Title 29 of the Code of Federal Regulations remains in effect.

The news release is available here.

The final rule delaying the effective date is available here.

For additional information, please see “Final Rule: Joint Employer Status Under the Fair Labor Standards Act” on the DOL website, available here.

DOL Announces Annual Update to Minimum Hourly Wage Rate for Federal Contract Workers
On September 15, 2021, the DOL published a Notice announcing its annual update to the current Executive Order (EO) 13658 minimum wage for workers performing work on or in connection with covered contracts. In 2014, President Obama signed EO 13658, “Establishing a Minimum Wage for Federal Contractors,” which established a minimum wage rate for certain federal contractors that is adjusted annually based on inflation. As announced in the Notice, the EO 13658 minimum wage rate will increase from $10.95 to $11.25 per hour effective January 1, 2022. The new rate must generally be paid to workers performing work on or in connection with covered contracts. The Notice also states that, beginning January 1, 2022, employers must pay tipped employees performing work on or in connection with covered contracts a minimum cash wage of $7.90 per hour.

Covered contracts that are entered into on or after January 30, 2022, or that are renewed or extended on or after January 30, 2022, will be generally subject to a higher minimum wage rate of $15 per hour established by EO 14026, “Increasing the Minimum Wage for Federal Contractors,” signed by President Biden on April 27, 2021.

The news release is available here.

The Notice is available here.

EO 13658, “Establishing a Minimum Wage for Contractors: Annual Update,” is available here.

EO 14026, “Increasing the Minimum Wage for Federal Contractors,” is available here.

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