Federal Employment Law Update – March 2017
Premium Processing of H-1B Petitions Suspended Temporarily
As of April 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to six months and the USCIS will notify the public before resuming the processing. The USCIS stated that this temporary suspension will help it reduce overall H-1B processing times and enable it to process long-pending petitions, as well as prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.
Since fiscal year 2018 (FY18) cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption. The suspension also applies to petitions that may be cap-exempt. However, this temporary suspension does not apply to other eligible nonimmigrant classifications filed on Form I-129.
Per the USCIS, while premium processing is suspended, any Form I-907 filed with an H-1B petition will be rejected. Additionally, if a petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, both forms will be rejected. The USCIS will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Of note, while premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if the criteria on the Expedite Criteria web page is met.
Read the USCIS Alert
Privacy Training Requirements for Federal Government Contractor Employees
Effective January 19, 2017, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued a final rule amending the Federal Acquisition Regulation to require privacy training for contractors whose employees have access to a system of records or handle personally identifiable information.
The rule ensures that contractors identify employees who handle personally identifiable information, have access to a system of records, or design, develop, maintain, or operate a system of records. These identified employees are required to complete initial privacy training and annual privacy training thereafter. A contractor who has employees involved in these activities is also required to maintain records indicating that its employees have completed the requisite training and provide these records to the contracting officer upon request. In addition, the prime contractor must apply the training requirements to all applicable subcontracts.
The minimal privacy training requirements must include a revised definition for personally identifiable information; the requirement for foundational as well as more advanced levels of privacy training; the requirement for there to be measures in place to test the knowledge level of the employee; and the requirement for role-based privacy training.
Read the New Rule
Proposed Federal Legislation – Preserving Employee Wellness Act Introduced
On March 2, 2017, the Preserving Employee Wellness Act (H.R. 1313) was introduced by the House Committee on Education and the Workforce. Per the committee’s fact sheet, the intent of the act is to reaffirm existing law to allow employee wellness programs to be tied to responsible financial incentives, bring uniformity to the regulation of wellness programs, and clarify that such programs are consistent with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). However, the text of the act is not yet available. The act is in response to the recent federal Equal Employment Opportunity Commission’s (EEOC) wellness program rules, effective January 1, 2017, that provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA, consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act.
The committee asserts that the Preserving Employee Wellness Act would protect employee wellness plans, reassert congressional intent to encourage the development of employee wellness programs, and encourage lower health care costs — all resulting in the promotion of a healthy workforce.
House Ways and Means Committee Releases Affordable Care Act Replacement Option
On March 6, 2017, the U.S. House of Representatives Ways and Means Committee released its proposal to replace portions of the Affordable Care Act (ACA). The proposal, entitled the American Health Care Act, in part, effectively eliminates both the employer and individual mandates, moves the applicable date for the “Cadillac tax” from 2020 to 2025, creates a process to simplify the employers’ reporting for offers of coverage and eliminates the cap for contributions to flexible spending accounts beginning in 2018. The proposed legislation also implements key reforms recommended by President Trump, including significantly expanding contribution thresholds for health savings accounts, providing funding and more flexibility to states in administering health care to low income families, and providing tax credits for certain low and middle income individuals and families. The proposal retains some key patient protection provisions of the ACA, by continuing to prohibit insurers from excluding individuals with pre-existing conditions from obtaining or paying more for coverage and continuing to allow children to stay on their parent’s plan through age 26.
DOL Files Proposed Rule to Delay Start Date of Fiduciary Duty Rule
The U.S. Department of Labor recently proposed a rule to delay for 60 days the applicability date of the fiduciary duty rule. The original deadline to comply was scheduled for April 10, 2017 and, if the proposed rule is finalized, the 60-day extension would extend the applicability deadline to June 9, 2017. The proposed rule includes a comment period related to the extension, which ends on March 17, 2017. In early February, President Trump issued a memorandum to the agency requesting a postponement and re-evaluation of the potential impact of the rule. The proposed rule includes a separate comment period related to this evaluation that ends on April 17, 2017.
Read the Proposed Rule
IRS Issues Transition Relief for QSEHRA Notice – Deadline to Notify Eligible Employees of Qualified Small Employer Health Reimbursement Arrangements Approaching
The 21st Century Cures Act, enacted on December 13, 2016, authorized certain small employers to help employees pay for medical expenses by offering tax-preferred arrangements called qualified small employer health reimbursement arrangements (QSEHRAs) beginning on January 1, 2017. Employers must notify eligible employees about the QSEHRA at least 90 days before the beginning of the year for which it is provided or, for newly eligible employees, by the date he or she is first eligible. However, this year notice is due March 13, 2017 and must include all of the following:
- The amount of the benefit available to eligible employees under the arrangement;
- A statement that eligible employees should notify the Marketplace of the QSEHRA benefit if applying for advance payment of the premium tax credit; and
- A statement that if the eligible employee does not have minimum essential coverage for any month, then they may be liable for an individual shared responsibility payment (“individual mandate” penalty under § 5000A of the IRS Code) for that month and any reimbursements made under the QSEHRA may be includible in gross income.
Employers who fail to timely notify eligible employees may be subject to a penalty of $50 per employee (up to a maximum of $2,500) per calendar year. An exception may apply where the failure to provide timely notice is due to reasonable cause and not willful neglect.
Read the IRS Notice 2017-20