Determining Employee FMLA Use for Chiropractic Care

Posted July 31, 2017 by Megan DiMartino

Question: Is a chiropractor considered a health care provider under the FMLA? And are there any special rules that apply to them?

Answer: Yes, to both. Chiropractors are considered health care providers to a certain extent. Per 29 C.F.R. § 825.125 (b)(1), a chiropractor’s work with a patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.”

In order for FMLA to be considered through a chiropractor, two factors have to exist:

  1. The chiropractor must actually have taken an x-ray of the back; and
  2. The x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.

These two factors must be present in order for a chiropractor to be considered a “health care provider.” This means that treatment and any time off, whether it be continuous or intermittent, due to incapacity from the misalignment of the spine is covered by the FMLA.

There aren’t too many cases involving chiropractors and FMLA, but a few have come up on how courts have dealt with such situations:

  • No X-Ray = No FMLA Leave – In Olsen v. Ohio Edison Co., the employee requested FMLA for treatment with a chiropractor, but there were no x-rays taken at the time he completed medical certification. Since the chiropractor hadn’t taken x-rays yet, the court determined that he was not acting as a health care provider per the regulations stated above. So the FMLA claims ended up being dismissed.
  • Davison v. Roadway Express – In this case, the court determined that the employee could be entitled to FMLA leave as he was able to show that the chiropractor took x-rays prior to treatment of his subluxation. The employee needed continuous leave to treat flare ups due to his back condition.

Confirm the following through medical certification in regards to allowing FMLA leave in situations involving chiropractic care:

  1. Whether an x-ray of the back was taken.
  2. Whether the chiropractor has found and is treating for subluxation of the spine.
  3. Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave.

Anything short of the above is not protected by FMLA.

Source: FMLA Insights | FMLA FAQ: Can a Chiropractor Certify FMLA Leave for the Chronic Bad Back? And Are There Limits?

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HSA Mid-Year Change Status and its Impact on Contributions

Posted July 25, 2017 by Megan DiMartino

Health Savings Account (HSA) contribution amounts can be changed at any time during the plan year. But, when it comes to changing your status within the year, whether it be from individual to family or vice versa, HSA owners are left a little confused.

During 2017, HSA owners can contribute the following maximum amounts to their accounts:

  • Individual – $3,400
  • Family – $6,750

These limits can change though, when a person’s status changes.

Under the Full-Contribution Rule (IRS Notice 2008-52), the annual HSA contribution limit can increase, but not decrease, due to a change in status. The “greater of” provision of the rule allows for higher amount options out of the following two options for an HSA-eligible individual who has a mid-year status change:

  1. The maximum annual contribution limit based on his or her actual HDHP coverage (individual or family) for each month of the tax year, calculated monthly, combined and then divided by 12; or
  2. The maximum annual contribution limit for the tax year based on his or her actual HDHP coverage (individual or family) as of December 1 of that year.

From Family to Self-Only Coverage
As an example of an individual moving from family coverage to self-only coverage – Said individual has family coverage for the 2017 plan year and plans on contributing the maximum amount of $6,750 to their HSA account. But half way through the year, they switch to self-only coverage which has a $3,400 maximum annual contribution limit.

Under the Full-Contribution Rule, their new contribution limit for 2017 comes out to $5,075 per Option #1 above. For the first half of the year they could contribute $6,750 (annually), but for the second half of the year they could contribute $3,400 (annually). So out of the two options listed above, Option #1 is the “greater of” with a new rate of $5,075 (determined from the average of the 6-month periods) compared to Option #2 where the new rate would be just $3,400.

Here’s the breakdown for Option #1:

Month 2017 Annual Contribution Limit
Based on Coverage Level
 January   $6,750
 February   $6,750
 March   $6,750
 April   $6,750
 May   $6,750
 June   $6,750
 July   $3,400
 August   $3,400
 September   $3,400
 October   $3,400
 November   $3,400
 December   $3,400
 Total for all months   $60,900
 Annual Limitation
(divide the total by 12)

From Self-Only to Family Coverage
This one is easier to calculate since the family coverage offers a larger contribution amount. Option #1 from above would still allow the individual to contribute $5,075 if they switched coverage half way through the year. But Option #2 automatically allows the individual to contribute the maximum family coverage amount of $6,750 which would supersede under the “greater of” provision.

It’s best to become familiar with the mid-year change rules and calculations in case any of your employees are looking to do so.

Source: DataPath | How a Mid-Year Change of Status Affects HSA Contributions

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Repeal & Replace Efforts Fail Again

Posted July 20, 2017 by Megan DiMartino

Less than five days after the Senate released the second version of its Better Care Reconciliation Act (BCRA), GOP efforts to repeal and replace the Affordable Care Act (ACA) have failed once again.

If the BCRA had any chance of passing, Republicans could lose only two votes. With this difficult number to maintain, there was doubt that the BCRA would have the necessary votes to pass, since two senators, Rand Paul (R-KY) and Susan Collins (R-ME), publicly stated they would vote against BCRA-2 from its onset. In addition, rumors surfaced that at least eight, if not ten, other Republican senators had serious concerns about this latest bill and would vote against it as well. Dwindling support for the bill, followed by the Congressional Budget Office (CBO) postponing the release of its analysis of the bill and the announcement to delay a vote this week while Senator John McCain (R-AZ) recuperated after surgery, was most certainly a sign the end may be near.

The proverbial nail in the coffin of the BCRA came earlier this week when two additional senators, Jerry Moran (R-KS) and Mike Lee (R-UT), announced their opposition to BCRA-2. These senators’ public denunciation of the bill spurred Senate Majority Leader Mitch McConnell to publish the following statement on Twitter, “Regretfully, it is now apparent that the effort to repeal and immediately replace the failure of Obamacare will not be successful.”

Reports today swirled around a bill that would completely repeal Obamacare now, with the possibility of a replacement plan sometime in the future. This type of proposal has been very unpopular with both parties, and would likely need 60 votes in the Senate to pass. Already, three Republican senators have announced they will not vote for a procedural step to take up the bill, should it move forward.

As far as we know, McConnell is still planning to hold the procedural vote on the repeal bill, perhaps before the Senate adjourns for a recess August 11th, even though it doesn’t appear he’s got the votes needed for such a bill to pass. From there, it’s unclear what may happen next.

We will continue to monitor all ACA repeal and replace efforts and will keep you updated as new information is released.

Should you have any questions or concerns, please contact your Account Manager or Executive.

Source: AssuredPartners Compliance Observer Alert | Repeal & Replace Efforts Fail Again

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HRCI & SHRM Pre-Approved Crawford Advisors Webinar Series | Drug Deals: Understanding the Intricacies of PBM Contracts, Language and Opportunities

Posted July 17, 2017 by Megan DiMartino

Pharmacy Benefit Management contracts are notorious for being confusing and vague, yet, extremely important. Join Crawford Advisors’ Director of Data Analytics, Scott Mayer, for this complimentary, one-hour, HRCI* and SHRM** pre-approved webinar as he discusses how PBM contracts can vary, even within the same PBM. With pharmacy spend now accounting for 20-25% of total healthcare spend, and growing, understanding these details has become more important than ever.

Topics include:

  • Contract Definitions
    • Generics
    • Single Source Medications
  • How to Determine Rebate Values
  • True Costs & Available Discounts
  • And More!

Webinar Details:

  • Thursday, July 27, 2017
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Paid Leave Laws and Their Future

Posted July 12, 2017 by Megan DiMartino

We’ve blogged on several paid leave law topics already this year and it seems that more and more states and cities are adapting their own laws. But this presents many compliance challenges for employers with employees in multiple jurisdictions. The variances between municipalities and their states have created turmoil as to which jurisdiction has authority over the other. This may now force the federal government to get involved to set a national standard.

Family and Medical Leave Act (FMLA)
Private large employers (employers with 50 or more employees) have complied with FMLA for almost 25 years now. FMLA mandates that employers provide up to 12 weeks of unpaid leave (offering paid leave is voluntary) during a 12-month period to their employees to care for a newborn, adopted or foster child, to care for a family member, or to attend to their own serious medical health condition.

States are also able to expand upon the standards of the FMLA which federal law has already set into place. States which have their own family leave laws include California, Connecticut, District of Columbia, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. These states have different requirements which include eligibility, who is a covered employer and the amount of leave available. Employers must comply with all requirements of the federal, state and local laws, and employees get the benefits of all the laws which apply.

Paid Family Leave
In the last several years, a handful of states have rolled out paid family leave programs funded through employee-paid payroll taxes. California, New Jersey and Rhode Island currently mandate paid family and medical leave.

Paid Sick Leave
The only states that require private sector employers to provide paid sick leave to their employees are California, Connecticut, Massachusetts, Oregon and Vermont. But other states, cities and counties are quickly adopting their own requirements.

  • Arizona: Employers will be required to provide earned paid sick leave to employees starting July 1, 2017.
  • Chicago and Cook County: Cook County, IL, will mandate paid sick leave for employers, including Chicago employers, effective July 1, 2017. Employees will be eligible for paid sick time if they work 80 hours within 120 days. They will accrue one hour of paid sick leave for every 40 hours worked, up to 40 paid sick leave hours per year and up to 20 of those hours can be rolled over to the next year. Chicago’s sick leave ordinance covers all employers that maintain a business facility within city limits or are subject to one or more of the city’s licensing requirements. Several municipalities within Cook County, though, have opted out of the county’s ordinance, so the law will not apply in those jurisdictions.
  • Georgia: Effective July 1, 2017, certain workers in Georgia who receive sick leave from their employers will be entitled to use up to five days of leave per year to care for family members. But the law does not require Georgia employers to provide sick leave at all.
  • Maryland: The governor vetoed a bill that would have required employers with 15 or more employees in the state to provide most employees with up to five days of paid sick leave per year, but a task force has been charged with making recommendations for new legislation.
  • Minneapolis and Saint Paul: The Minneapolis sick leave ordinance requires employers with at least six employees to provide paid sick and safe time leave to employees who work in the city. Employees accrue one hour of sick leave for every 30 hours worked, up to 48 hours of sick leave per year. The Saint Paul sick leave ordinance is similar, but applies to all employers regardless of size.
  • Nevada: Earlier in June, a bill requiring certain employers to offer paid sick leave was vetoed by the governor. The legislation would have required businesses with 25 or more employees to provide paid sick leave to full-time employees. Employers would have been required to award one hour of sick leave per 40 hours of work for a total of 40 hours per year.
  • New York: Paid family leave starts on January 1, 2018, with eight weeks of leave and with a four-year phase-in to 12 weeks of at least partially paid family leave when fully implemented.
  • Pittsburgh: Pittsburgh’s paid leave law was blocked by a court in 2015. An appellate court in May 2017 agreed that Pittsburgh was not vested with the authority from Pennsylvania to enact the legislation. The law would have required businesses with 15 or more employees to provide upward of 40 hours of paid time off to their workers per year. Employers with fewer than 15 employees would have had to provide upward of 24 hours annually under the measure.
  • Washington: A law pending in Washington State would require employers to offer workers at least one hour of paid sick leave for every 40 hours worked.

Even though cities are allowed to enforce their own requirements, such states as Minnesota and Pennsylvania are considering laws to bar cities from passing paid leave laws.

Future of Paid Leave Laws
In February, President Trump addressed Congress to work to “ensure new parents have paid family leave.” The White House then presented in May a budget request that included a paid parental leave concept that would involve the creation of a federal and state paid parental leave program to start in 2020. The benefit would provide six paid weeks of leave to new parents.

But rumors state that House Republicans will introduce legislation that will shield employers from the state and local paid leave laws if they offer a certain amount of paid leave to their employees for family and medical reasons. This would be a good deal for employers that don’t care to deal with the varying and ever changing paid leave laws at the state and local levels.

Other pending bills would establish a national paid family and medical leave insurance program funded by contributions from employers and employees or would offer tax incentives to employers that provide paid family and medical leave.

Source: Fox Rothschild LLP | Paid Leave Wars: The Battles Intensify

06/07/17 CA Blog: Governor Vetoes Maryland Paid Sick Leave Law in Hopes of a Fair Act
02/15/17 CA Blog: Finalized Paid Family Leave Law – Washington, D.C.
02/07/17 CA Blog: Is Paid Parental Leave Right for Your Company?

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

2nd Quarter Compliance Update

Posted July 7, 2017 by Megan DiMartino

A small preview of our 2nd Quarter Compliance Update…

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Fourth of July Trivia – American Flag Edition

Posted June 30, 2017 by Megan DiMartino

1. What is the name of the blue area on the upper left side of the American flag which contains the stars that represent the 50 states?
a. Old Glory
b. Grand Union
c. Union Jack
d. Key Stone

2. When a new state is added to the union, a star gets added to the American flag. On what day of the year are new stars always added?
a. June 14th – Flag Day
b. July 4th – Independence Day
c. Memorial Day
d. November 11th – Veterans Day

3. How many times has the American flag changed due to the addition of new states?
a. 17
b. 50
c. 31
d. 26

4. True or False: The designer of the current 50-star flag was a high school student.

5. What is the name of the first American flag which featured 13 stars and 13 stripes?
a. The Stars and Stripes
b. Betsy Ross Flag
c. Star-Spangled Banner
d. Cowpens Flag

6. According to the U.S. Department of State, what are the names given to the American flag’s colors?
a. American red, white and American blue
b. Red, white and blue
c. Grand red, star white and Continental blue
d. Old glory red, white and old glory blue

7. How many American flags have been planted on the moon?
a. 6
b. 11
c. 2
d. 1

8. The Star-Spangled Banner, which flew at Fort McHenry and was the inspiration for Francis Scott Key’s poem, was originally how large?
a. 4 feet by 5 feet
b. 30 feet by 42 feet
c. 30 feet by 34 feet
d. 14 feet by 17 feet

9. What is an expert on flags and their history called?
a. Campanologist
b. Indologist
c. Piphilologist
d. Vexillologist

10. True or False: The pledge of allegiance was also written by Francis Scott Key.

1. c. Union Jack
2. b. July 4th – Independence Day
3. d. 26
4. True – Robert G. Heft was a 17-year old high school student when he designed the current American flag in 1958. He was only awarded a B- for the sewing project, but President Dwight D. Eisenhower chose his design out of 1,500 entries. Needless to say, Heft’s teacher raised his grade after his design won the contest.
5. b. Betsy Ross Flag – Betsy Ross claims to be the seamstress and creator of the first American flag, but there is no evidence to support this claim.
6. d. Old glory red, white and old glory blue – The HTML codes and Pantone equivalents can be found on the Department of State’s style guide.
7. a. 6 – All from Apollo missions (11, 12, 14, 15, 16 & 17)
8. b. 30 feet by 42 feet – This was the original size of the 15-star and 15-stripe American flag, but it is now 30 feet by 34 feet and is displayed at the Smithsonian’s National Museum of American History in Washington, D.C. Over 200 square feet of the flag, as well as one of the stars, was given away as souvenirs to veterans, government officials and other honored citizens in the late 1800s.
9. d. Vexillologist
10. False – Key wrote the Star-Spangled Banner, but Francis Bellamy wrote the pledge of allegiance.

Wishing everyone a happy and safe holiday weekend and July 4th!

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Senate GOP’s Better Care Reconciliation Act – Updates

Posted June 23, 2017 by PHaynes

Senate Republicans released their health reform overhaul today after weeks of intrigue.

The fight going forward is going to be over the reoriented subsidies and Medicaid. There is nothing explicit that allows states to waive out of anything new but the general waiver requirements process has been expanded.

The greatly anticipated (and robustly debated) Senate Republican health reform overhaul – the “Better Care Reconciliation Act of 2017” – has finally been released.  The politics of the legislation are unclear, as GOP leaders have virtually no margin for error in a vote that Majority Leader Mitch McConnell intends to push by the end of next week. They may lose only two votes, assuming Vice President Mike Pence will cast the deciding party-line vote.

Employers and Plan Sponsors will be pleased to note that the legislation leaves the employer/employee “exclusion” from taxation on group health benefits untouched.  Taxing employee premiums is a major threat during this process as Congress looks to increase revenue for the measure.  We’re also gratified that the “Cadillac Tax” on high cost health plans would continue to be delayed until 2025.

The House-passed American Health Care Act also included a provision that would delay implementation of the tax until 2025 (from the current law which would implement the tax in 2018).


  • Zeros out individual and employer mandates.
  • Modifies but keeps the individual credits; ties credits to age bands (5) and reduces eligibility to families under 350% of poverty line (from 400 before), but if you have access to employer coverage, you are ineligible with no requirement that the employer coverage be “affordable.”
  • Eliminates small business tax credit regime for health care insurance after 12/31/19 AND between now and then small business health plans are ineligible for the credit if they cover abortion services.
  • Generally repeals all of the taxes in effect after 12/31/17. The Medicare excise tax does not go away until after 12/31/2022, but net investment tax goes away effective 12/31/16.
  • ACA HSA and FSA limits repealed so back to the $5,000 caps.
  • Other HSA reforms are the same as in AHCA – increases the maximum contribution (to be equal to the plans out of pocket limits); allows spousal and catch-up contributions; and allows expenses incurred within 60 days of establishing an HSA to be covered. Does not deal with on-site medical clinic or telemedicine issue.
  • Eliminates federal MLR rebate regime after next year, but requires each State to establish its own MLR regime with rebates.
  • Most Significant Development: allows for the establishment of association health plans as large group plans for small businesses/individuals. These plans would be exempt from the community rating and essential benefit requirements imposed on small group and individual plans.

A chart comparing the Affordable Care Act to the House and Senate bill is available here for your reference.  Should you have any questions or concerns, please contact your Account Manager or Executive.

Legal Reasons to Draft and Update Job Descriptions

Posted June 23, 2017 by Megan DiMartino

Federal labor laws may not require HR professionals to write up job descriptions, but in the best legal interest of your company it’s wise to create job descriptions for each position.

  • They help you defend against discrimination claims. Creating job descriptions, which includes qualifications needed for the position, is a good defense in case of a discrimination claim. Applicants may claim that they were rejected based on their race, gender or age, but having the job description can show a court that you rejected them because they didn’t meet all the qualifications needed.
    Note: Should you find yourself in a situation where you have multiple candidates that meet all the qualifications of the position, it is perfectly legal to base your hiring decision on unwritten criteria or a gut feeling. But to be cautious, it is best to base your decisions off of the criteria that is within the job description.
  • They help determine “essential functions” for ADA purposes. ADA lawsuits may arise if an employee can prove that they’re legally disabled and can still perform the “essential functions” of the job. Vague job descriptions can be left open to a court’s random interpretation.
    Break down the essential functions of a position and identify the purpose of the job, the frequency of each function and any consequences if they functions aren’t performed. Not only should the description include the essential functions, but also the nonessential and less-frequent requirements.
    Four-key categories to include:

    • Physical skills (e.g., standing, walking, lifting, bending)
    • Learned skills (e.g., equipment proficiency, industry experience)
    • Job duties (e.g., travel, hours, shifts)
    • Behavioral skills (e.g., communication, leadership, time management)
  • They help you classify employees as exempt or non-exempt. Exemptions from the overtime rule of the Fair Labor Standards Act (FLSA) are determined on job duties, not job titles. Job descriptions need to match the reality of the job, not just what management thinks the job should or would like the job to entail.
    Requiring a master’s degree for a position when a high school diploma will do may unfairly exclude applicants and lead to a discrimination lawsuit. And having it in the description that managers are allowed to hire and fire employees, but not actually giving them that power, could qualify them for overtime pay as a non-exempt employee under the FLSA.

Some common traps to avoid when creating job descriptions:

  • Describing the employee instead of the job. If you describe a position based on a previous employee who occupied the position, then you’ll be on a crazy witch hunt looking for an exact clone of the ex-jobholder.
  • Using imprecise language. Job description language should be direct, clear, short and simple, and should emphasize the skills and purposes of the position. Begin each requirement with an action verb in present tense, such as supervise, inspect, produce, organize, motivate, educate, administer, compose, analyze and repair. And avoid gender-based language, such as “salesman.”
  • Not being specific enough. You should be stating exactly what you want the applicant to do. Incorrect: “Quality control inspectors should inspect finished products.” Correct: “Inspect nuts emerging from production process for burrs. Place nuts with visible burrs in scrap box.”

Source: Business Management Daily | Job descriptions: Top 3 legal reasons why you need them

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

IRS Begins Large Employer ACA Reporting Penalty Process

Posted June 20, 2017 by Megan DiMartino

As the American Health Care Act (AHCA) has not been signed into law yet, the Affordable Care Act (ACA) is still in effect and the IRS is currently issuing notices to large employers to disclose whether they complied with the ACA reporting duties or not.

Large employer ACA reporting was required for 2015 and 2016 (even if transition relief was applied for 2015). Penalties can be up to $500 per each 2015 Form 1095-C statement ($250 for not providing the form to the employee and $250 for not filing with the IRS) and up to $3 million total for an annual penalty liability.

IRS notices referred to as “Request for Employer Reporting of Offers of Health Insurance Coverage (Forms 1094-C and 1095-C)” (aka Letter 5699) are being distributed to employers that failed to provide Form 1095-C and file copies with Form 1094-C regarding reporting for 2015 or 2016. Employers that receive this will have only 30 days to complete and return the form, which contains the following options:

  • Employer already complied with reporting duties;
  • Employer did not comply but encloses required forms with return letter;
  • Employer will comply with reporting duties within ninety days (or later, if further explained in the form);
  • Employer was not an Applicable Large Employer for the year in question; or
  • Other (requiring a statement explaining why required returns were not filed, and any actions planned to be taken).

The letter also states, “If you are required to file information returns under IRC Section 6056, failure to comply may result in the assessment of a penalty under IRC Section 6721 for a failure to file information returns.”

The IRS offers good faith relief from filing penalties for timely filed forms if they are incomplete or incorrect for 2015 or 2016. This relief is only available upon showing “reasonable cause,” which is narrowly interpreted (ex., due to fire, flood, or major illness).

Please contact your Account Manager or Account Executive should you receive Letter 5699 to assist and plan to respond as required within the 30-day limit.

Source: E for ERISA | Waiting for the Other Shoe to Drop: IRS Begins ACA Reporting Penalty Process

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

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