Ever wonder what all those letters mean in your firm’s business insurance coverage policies and why they are so important to the ongoing operation of a law firm? Our own Kelley Milks, AHERN Executive Vice President, will demystify what types of insurance your firm should have, determining the correct amount of coverage you should carry, and will update you on new happenings in the business insurance arena. You will come away with the tools and information to be confident at your next renewal meetings and perhaps even be able to throw those acronyms right back!

                                  TITLE: The ABC’s and 123’s of Insurance
                                  PRESENTER: Kelley L. Milks, CIC, CRM, RPLU
                                  DATE: Thursday, June 18, 2020
                                  TIME: 9AM to 10AM PST
                                  COST: FREE for BASF Members ($30 for Non-Members)

In this FREE webinar, you will learn more about:

• Property and Casualty Insurance for Law Firms
• Professional Liability Insurance for Law Firms
• What is trending in the insurance world?
• Open Q&A session at the end of the program

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Kelley Milks, an Executive Vice President at AHERN Insurance Brokerage, has worked in the insurance  industry for over 35 years, specializing in the risks of  law firms for over 20 years. In her role with AHERN,  Kelley provides clients with expertise in all exposures: professional liability, employment practices, workers’ compensation, fiduciary, commercial property and casualty. She holds the designations of Certified Insurance Counselor, Certified Risk Manager and Registered Professional Liability Underwriter. Her responsibilities also include developing new business. Kelley has actively supported the Association of Legal Administrators by providing seminars at national, regional and local events. She has also provided educational classes on the local level for the Certified Legal Managers designation.

Last month, another major cyberattack on a law firm made headlines once again. A cybercriminal ring stole a huge cache of data from a major media and entertainment law firm. The hacker group initially demanded a $21 million dollar ransom for the stolen private documents, which then doubled to $42 million. This was a law firm with on-site IT support and sophisticated safe guards that now has their name splashed across the news creating a publicity nightmare, reputational free-fall and sleepless nights for all of their clients.

While blockbuster data breaches against household names tend to make the news, attacks against smaller organizations are now so frequent that they are no longer newsworthy. In the most recent Verizon Data Breach Investigations Report, for example, 58% of victims were categorized as small businesses.

Cyber threats are rapidly evolving and there are a plethora of ways in which attackers can access networks. As protectors of sensitive information, it’s important that law firms are conscious of IT security and take steps to protect themselves from threats.

                          TITLE: Cyber Threats: How to Make Your Firm Resilient to Cyber Risk
                          PRESENTER: Adam Abresch, CIC, CCIC, CLCS
                          DATE: Thursday, June 25, 2020
                          TIME: 12PM to 1PM PST
                          COST: FREE for SDCBA Members ($25 for Non-Members)

In this FREE webinar, you will learn more about:

• The Numbers behind Cyber Risk
• What’s at Risk for your firm
• The Cost of a Cyber Breach
• The Solution

You will also receive a Cyber Risk Exposure Scorecard to better understand where you may be vulnerable to the new reality of cyber criminals.

Cyber awareness and protection is becoming essential for law firms of all sizes and areas of practice. We hope you can join us for a very informative hour!

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As the Cyber Risk Practice Leader at Acrisure, Adam is responsible for designing custom Cyber, Crime and Technology solutions for Acrisure clients across the globe. Adam is also a guest lecturer at Fordham University, Hofstra University and leads Cyber Liability education for over 250 Acrisure Partner Agencies throughout the country.

Adam is a frequent speaker and thought leader on Cyber Risk, including featured presentations at NetDiligence, the Professional Liability Underwriters Society (PLUS) Cyber Conference and the New Jersey and New York City Bar Associations. Adam graduated from the University of North Carolina at Chapel Hill and maintains a Certified Insurance Counselor designation (CIC), Cyber COPE Insurance Certification from Carnegie Mellon/Chubb and was the recipient of NetDiligence’s 2019 Toby Merrill Rising Star Award.

COVID-19 Guidance for Section 125 Mid-Year Election Change Rules
On May 12, 2020, the IRS released Notice 2020-29, which provides temporary flexibility for mid-year election changes under a Section 125 cafeteria plan during calendar year 2020. The changes are designed to allow employers to respond to changes in employee needs as a result of the COVID-19 pandemic.

This guidance relates to mid-year elections for:

  • Self-insured and fully insured employer-sponsored health coverage;
  • Health flexible spending arrangements (health FSAs); and
  • Dependent care assistance programs (DCAPs).

A plan may permit any of the election changes described in the notice, regardless of whether they satisfy existing mid-year election change rules.

Please click here to continue reading our Compliance Bulletin which summarizes the additional mid-year election changes.

Annual Increases to Health FSA Carryover Limit
On June 24, 2019, President Trump issued an executive order that required the IRS to issue guidance that would increase the health FSA carryover limit. On May 12, 2020, the IRS issued Notice 2020-33 to increase the maximum $500 carryover amount for a plan year to an amount equal to 20 percent of the maximum salary reduction contribution for that plan year. Thus, the maximum unused amount from a plan year starting in 2020 allowed to be carried over to the immediately following plan year beginning in 2021 is $550 (20 percent of $2,750, the indexed 2020 contribution limit).

As a general rule, an amendment to a Section 125 cafeteria plan to increase the carryover limit must be adopted on or before the last day of the plan year from which amounts may be carried over and may be effective retroactively to the first day of that plan year. However, there is a special amendment timing rule for the 2020 plan year. Employers that implement indexing of the maximum carryover amount for 2020 may adopt an amendment to their Section 125 cafeteria plans by Dec. 31, 2021, effective retroactively to Jan. 1, 2020, provided that the employer informs all individuals eligible to participate in the cafeteria plan of the changes to the plan.

CARES Act Provisions Affecting FSAs, HSAs and/or HSAs
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law March 27, 2020 contains important provisions that affect HSAs, HRAs and FSAs. The following provisions are effective immediately:

  1. HSA-qualified health plans can now cover tele-health and other remote care service expenses below the HDHP statutory deductible limit, or at no or low-cost sharing, without affecting an account holder’s ability to continue contributing to their HSA. This provision will last until December 31, 2021.
  2. Over-the-counter (OTC) medications now can be paid for or reimbursed through an FSA, HRA or HSA without a doctor’s prescription. Ordinarily, individuals are precluded from using FSA funds to pay for OTC drugs without a prescription. The Act eliminates this prohibition, which frees up these funds to purchase over-the-counter medications (Tylenol, Advil, Zyrtec, etc.) and further recognizes menstrual care products as FSA-eligible expenses.  These items are eligible for reimbursement beginning January 1, 2020.

Please click here to read our Benefits Bulletin: IRS Provides Temporary Flexibility for Cafeteria Plans, Health FSAs, and DCAPs.

If we can answer any questions or be of any assistance, please do not hesitate to contact us at AIBBenefits@AhernInsurance.com.

As COVID-19 continues to spread throughout the United States, there has been a massive upheaval of the American workplace. Employers have found themselves drafting and implementing policies and procedures addressing a wide array of issues including remote work, layoffs, furloughs, pay cuts, workplace conditions and many more. Not surprisingly, the uncertainty wrought by COVID-19 has left employers at an increased risk of exposure to employment-related claims alleging wrongful termination, discrimination, retaliation and many others.

This HR Insights piece will serve as a guide to the most common potential causes of action related to COVID-19 that may lead to employment-related litigation. As is the case with all inherently legal issues, employers are strongly recommended to seek the guidance of legal counsel when faced with any of the claims discussed herein.

Workplace Health and Safety

There have already been a multitude of safety violation claims filed under the Occupational Safety and Health Act (OSHA) and state equivalents. These safety violations typically allege that an unsafe workplace has caused sickness and/or death due to COVID-19, or that an employer failed to take appropriate measures to reduce COVID-19 exposure and spread within the workplace. Such “appropriate measures” might include failure to provide hand-washing stations, sanitizers, masks or adequate protective gear on location. Other claims have alleged that employees have been unable to practice social distancing due to the nature of their jobs.

Leave Claims (FMLA and FFCRA)

In addition to traditional paid and sick leave, COVID-19 spurred the passing of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The FFCRA requires employers with 500 or fewer employees to give employees expanded paid family and medical leave, and emergency paid sick leave.

Without analyzing the unique provisions of the FFCRA, it must be noted that the Act expressly incorporates existing Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) remedies provisions. This means that an employee who is wrongfully denied expanded leave or not paid during the leave will have a cause of action to recover damages (lost wages, salary, benefits and other compensation) or actual monetary losses resulting from the denial of leave (e.g., the costs of child care), with interest. Likewise, employers that fail to comply with the Expanded Paid Sick Leave Act will be made liable to remedy provisions under the FLSA.

Given the extensive exposure, employers should consider speaking with legal counsel in order to update and implement leave-related policies. Employers might also consider training their managers and supervisors on updates to the policies and laws, as they will be on the front lines when dealing with leave-related issues.

Wage and Hour Claims

With employees being asked to work from home, and employers restructuring their workforce (including salaries and compensation) to fit their current needs, it’s vital to remember that this reshuffling can give rise to claims under the FLSA and applicable state laws related to salary and hours reductions. Altering work arrangements and compensation structure may be necessary to keep some organizations afloat, but such changes may inadvertently alter the classification status of their workers. Such classification issues may lead directly to an FLSA claim.

Discrimination Claims

Numerous federal and state laws protect employees from discrimination based on protected class characteristics. Laid-off or furloughed employees may bring claims under federal and state anti-discrimination laws, challenging the purported reason they were selected for an adverse employment action. Employers should be careful to use objective means when deciding which employees to lay off or furlough. They will also want to retain records of the criteria used, and, in certain instances, evaluate whether any disparate impact may result from the decision.

Employees might also bring a claim based on an employer’s failure to reasonably accommodate employees with a bona fide disability related to COVID-19. Such claims might even be based on a denial of a request to allow an employee to work from home.

Retaliation Claims

Most state and federal laws contain provisions that make it unlawful for employers to retaliate against employees who exercise their protected legal rights or oppose unlawful employer actions. For instance, there have already been numerous claims that allege retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace. Other retaliation claims may arise out of an employee complaint that the employer wrongfully denied a request for leave.

The most important practice in insulating your business from a retaliation claim is documentation. Extensively documenting the employer’s reasoning behind their employment decisions can be the difference between a successful retaliation defense and a costly judgment.

Wrongful Termination Claims

With the major increase in employee furloughs and layoffs, it is no surprise that there has been an increase in wrongful termination claims. Wrongful termination claims can arise out of a multitude of COVID-19-related issues. One example is a claim that the employee was terminated for complaining about a lack of personal protective equipment. Another example would be a claim that the employee was terminated for lodging a complaint about co-workers with COVID-19 symptoms reporting to work.

To mitigate the potential for a wrongful termination claim, employers should proceed carefully upon receiving employee complaints. Employers should also maintain meticulous records of complaints, the investigation process and the ultimate reasoning behind the termination.

Disclosure of Confidential Information Claims

Because the Centers for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spreading of COVID-19 and issued precautions, employers have been allowed to measure employees’ body temperature. However, this newly expanded testing capability exposes the employer to an array of privacy-related issues.

In order to maintain the privacy of COVID-19-related medical documents, the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that they have the disease or suspect they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

Conclusion

These are just a few examples of the most common types of claims that may arise as a result of COVID-19. It is imperative

that employers are aware of these potential issues and proceed accordingly. Moving forward, employers should consider the following:

  1. Develop a return-to-work plan that contemplates federal and local safety guidance (e.g., CDC, OSHA and state health authorities) on personal protective equipment, workspace hygiene, social distancing measures and many others.
  2. Consult with legal counsel when implementing (or updating) policies and procedures to ensure compliance. Ensure counsel is also present when undergoing recall, rehire and job offers, as this stage is the epicenter for multiple employment-related claims.
  3. Ensure that those policies and procedures are implemented in a fair and equal manner.
  4. Ensure proper communication to all employees, particularly the line managers who will be responsible for implementation.
  5. Maintain the confidentiality of all medical-related information provided by employees in compliance with federal and state guidance.
  6. Train managers and supervisors on new policies and procedures drafted in the wake of COVID-19.
  7. Regularly monitor new federal, state and local guidance, as well as legislative enactments.

Contact AHERN Insurance Brokerage today for more guidance.

This HR Insights is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. © 2020 Zywave, Inc. All rights reserved.

We appreciate your trust in AHERN Insurance Brokerage for employee benefit and health care related services and solutions. As we continue to monitor coronavirus (COVID-19) developments closely, the health and well-being of our clients and their employees is of the utmost importance.

As you may have already noted, health insurers are responding to the COVID-19 threat by offering members no-cost screening and diagnostic testing. We know it can be difficult to keep track of information in times like these, so we have published a consolidated summary of each carrier’s COVID-19 enhanced benefits, FAQ’s and resources which you can find here.

In addition, please note the following key resource pages from the Centers for Disease Control and Prevention and the California Department of Public Health:

While we continue to monitor this fluid situation, please do not hesitate to contact us with any questions or concerns.

TOOLS & INFORMATION FOR CLIENTS

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. Governments, municipalities and employers are taking various measures to help contain the spread. To assist you, this page includes information regarding potential insurance coverage implications and additional resources to monitor this evolving situation.

 

Potential Coverage Implications

 

Webinars

  • COVID-19 Compliance Considerations: Returning to Work Series | Human Resources

Agenda & Topics:

    • Families First Coronavirus Relief Act (FFCRA)
    • Wage and Hour Concerns
    • Discrimination and Harassment
    • Talent Acquisition
    • Management Training

Webinar Link
Handouts Link

COVID-19 Compliance Considerations: Returning to Work Series | Employee Benefits

Agenda & Topics:

    • New Federal Guidance
    • Affordable Care Act
    • HIPAA Implications
    • Section 125 Plans
    • ERISA Obligations
    • Next Steps for Employers

Webinar Link
Handouts Link

COVID-19 Compliance Considerations: Returning to Work Series | Health & Safety

Agenda & Topics:

    • Government Recommendations
    • Control and Prevention Practices
    • Hazard Recognition
    • Health and Safety Standards
    • Maintaining a Healthy Workforce
    • Return to Work Action Plan

Webinar Link

  • Family First Coronavirus Response Act | What Employers Need to Know

Learn about the most recent developments affecting employers from a human resources perspective and gain insights into what legislation may be coming later this week.

Webinar Link
Handouts Link

  • COVID-19 | Critical Considerations for Plan Sponsors

Learn about the most recent developments affecting employee benefits and learn what steps employers should be taking to ensure compliance under the new legislation.

Webinar Link
Handouts Link

  • Employee Benefits – Paycheck Protection Program | A New Relief Option for Small Businesses

Listen to an overview of the Small Business Administration’s resources that provide small businesses with working capital loans that can provide vital economic support to small businesses to help overcome the temporary loss of revenue they are experiencing.

Webinar Link
Handouts Link

 

Additional Resources

The following includes a roundup of resources to assist in monitoring the most up-to-date information available:

Benefits and Human Resources

Business Planning and Continuity/Operations

Cyber Risks

Government and Policy Notices

Mental Health and Wellbeing

While we continue to monitor this fluid situation, please do not hesitate to contact us with any questions or concerns. In the meantime, we’d like to thank you for trusting AHERN Insurance Brokerage with your insurance needs.

As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.

Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.

Our latest Compliance Bulletin provides a summary of the compliance issues facing employers in this type of situation. To continue reading the Bulletin, please click here.

If we can answer any questions or be of any assistance throughout the year, please do not hesitate to contact us.

AHERN is excited to present the first edition (January-April) of our webinar series calendar for 2020!

These webinar programs are valid for one (1) Professional Development Credit towards the SHRM (Society for Human Resource Management) SHRM-CP/SHRM-SCP designations and meets the HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. Please note that these webinars do not qualify for MCLE credit.

We encourage you to take advantage of these free and informative webinars.

Click on the below invitations to register.




Legislative and judicial activities during the week of December 16, 2019 produced significant developments with the Affordable Care Act (ACA). On December 18, the United States Court of Appeals for the Fifth Circuit issued a ruling in Texas v. United States finding the ACA’s individual mandate to be unconstitutional, and on December 19, Congress passed a spending bill that contains the full repeal of three ACA taxes. These developments will have a disparate effect on employers.

Repealed Taxes  

The spending deal approved by Congress and later signed by President Trump provides government funding and addresses numerous policy initiatives. One part of the spending package contains the repeal of three ACA taxes: the Cadillac tax, the medical device tax, and the health insurance tax. While the repeals are unsurprising, they signal a considerable loss of funding intended to help pay for health coverage expansion under the ACA.

Cadillac Tax

Designed to discourage high-cost employer-sponsored health plans, the Cadillac tax imposes a 40% excise tax on coverage in excess of certain premium thresholds. Largely unpopular, implementation of the Cadillac tax was delayed several times, with its most recent implementation date scheduled for 2022. As a result of the passage of the spending bill, the Cadillac tax will be repealed as of January 1, 2020, without ever having taken effect.

Medical Device Tax

The medical device tax is a 2.3% excise tax on the gross sales of medical devices, such as pacemakers, x-ray machines, and other hospital equipment. The tax took effect in 2013 and was shortly thereafter suspended by Congress. The tax has not been in effect since 2016 and will be repealed as of January 1, 2020.

Health Insurance Tax

The health insurance tax applies to health insurers that offer individual and group medical insurance policies, as well as public programs like Medicaid and Medicare. Though the tax applies directly to insurers, most carriers build the amount of the tax into insurance policy premiums, effectively passing the cost on to employers and individuals. Because of this adverse impact on premiums, the tax was twice suspended in 2017 and 2019. Unlike the Cadillac and medical device taxes, repeal of the health insurance tax will not take effect until 2021. Consequently, insurance premiums for 2020 will continue to reflect the cost of this tax.

Appellate Court Decision

In the case of Texas v. United States, the United States Court of Appeals for the Fifth Circuit upheld the district court’s 2018 ruling that the ACA’s individual mandate is unconstitutional. The plaintiffs argued that because the individual mandate penalty was reduced to $0, it is no longer a tax as originally characterized by the U.S. Supreme Court and therefore violates the Constitution.

The appellate court declined to rule on other issues previously raised by the district court, including the question of whether the individual mandate can be severed from the rest of the ACA or whether the entirety of the law will be invalid without it. Instead, the appellate court sent the case back to the district court to determine if any other provisions of the ACA should be struck down along with the individual mandate.

What this Means for Employers

Employers may experience some relief from the repeal of the ACA taxes. Sponsors of insured health plans can anticipate potentially lower premiums beginning in 2021 due to the absence of the built-in cost of the health insurance tax, and sponsors of high-value coverage can continue to offer rich plans free from imposition of an excise tax into 2022.

However, the impact of the court decision in Texas v. United States will take longer to become clear. Though the ruling does deem the individual mandate unconstitutional, all other aspects of the ACA remain in full effect pending further analysis – including the employer shared responsibility provisions and reporting obligations under Internal Revenue Code Sections 6055 and 6056. Additionally, the defendants in the case have signaled that they are prepared to take the unfavorable ruling to the U.S. Supreme Court, which would dramatically lengthen this judicial process.

Importantly, the court’s ruling on the constitutionality of the ACA’s individual mandate has no impact on similar laws enacted by some states, such as California and Massachusetts. Employers (and individuals) in these states should be mindful of the requirements that will continue to be imposed under such laws.

Click here to download this Benefits Bulletin.