Relief Granted: Issuers and TPAs Can Satisfy Website Posting Requirement

By: Jennifer Berman, CEO, MZQ Consulting

On Friday, August 19, 2022, the Departments of Labor, Health and Human Services, and Treasury (the Departments) issued updated FAQs addressing the No Surprises Act and the Transparency in Coverage Rules.  These FAQs directly address an issue related to the Transparency in Coverage Rules (the TiC Rules) that has been causing consternation for employers across the country—are they really required to post a link to their machine-readable files on their public websites?  The new guidance allows this requirement to be shifted to insurance carriers and TPAs in all cases.  This welcome news for plan sponsors is caveated, though—a detailed summary of the new relief, including the requirements to take advantage of it, is provided below.

Beginning on July 1, 2022, the TiC Rules require that non-grandfathered health plans post information on a public website regarding in-network rates and out-of-network allowed amounts and billed charges for covered items and services.[1]  This information is contained in machine-readable files that are not intended to be understood by plan participants.  Starting January 1, 2023, plans must also provide a tool designed to help plan participants understand their actual costs for the 500 most common items and services.  This requirement expands to apply to all covered items and services on January 1, 2024.

The Link Requirement

Many employers have been concerned about the requirement to post a link to the machine-readable files on their websites, as the information: (1) does not generally relate to their core business and (2) is not currently intended to be understood by individuals who may wish to review it.  Nevertheless, many compliance experts, including the team at MZQ Consulting, have advised employers that it was necessary to post such a link based on language in the regulations.  The regulations state that while a plan sponsor may contract with a third party to post the required files, if a plan chooses not to host the file on its own website, “it must provide a link on its own public website to the location where the file is made publicly available.”[2]  The new FAQs clarify that the Departments will interpret this requirement more liberally.

Specifically, the FAQs provide that if a plan sponsor has delegated responsibility to a third party for the machine-readable file requirement, the plan sponsor DOES NOT have to post a link to those files on the website for their business.  Instead, the guidance interprets that the requirement for the plan sponsor to post a link to the files only applies if the plan sponsor maintains a public website for the health plan itself.  The guidance also clarifies that plan sponsors are not required to create a public website for their health plan merely to post these links.

Delegating the Posting Requirement

The conversation around whether a plan sponsor needs to post a link to its TiC disclosure presumes that the plan sponsor has appropriately delegated responsibility for posting the machine-readable files to an insurance carrier or third-party administrator.  The rules around delegating this responsibility vary slightly based on the plan’s funding status:

  • Fully Insured Plans—A plan satisfies the requirement if it requires the insurer to provide the information “pursuant to a written agreement.”  The rule goes on to provide that if the insurer and the plan sponsor “enter into a written agreement under which the [insurer] agrees to provide the information…” and the insurer fails to do so, the insurer, not the plan sponsor, is in violation of the TiC Rules.  The guidance does not address whether a written statement from a carrier that it will handle the necessary disclosures on behalf of its groups constitutes a “written agreement” for this purpose. 
  • Self-Funded Plans—A plan can satisfy the requirement by entering into a written agreement with a third-party administrator to provide the required information.  However, if a self-funded group enters into an agreement with a third party to provide the information, and that third party fails to meet the requirements of the TiC Rules with respect to the disclosure, the plan sponsor is deemed to have violated the TiC Rules. 

Thus, self-funded plan sponsors have an affirmative obligation to monitor the disclosures provided by their TPAs to ensure compliance.  Penalties for failure to comply with this rule can be up to $100 per day (adjusted annually), per violation, per affected individual. 

Next Steps

Any employer that has contracted with its carrier or TPA to facilitate compliance with the TiC Rules can remove any link to the machine-readable files currently posted on that employer’s public website.  The link requirement only applies when a public website is maintained for the health plan itself.  All plan sponsors relying on their carrier or TPA to meet the requirements of the TiC Rules should ensure that they have a written agreement documenting this delegation of responsibility.  Finally, self-funded plan sponsors should implement a process to ensure their TPAs are, in fact, meeting the requirements of the TiC Rules.

[1] This requirement also applies to covered prescription drugs, but the effective date of that component of the rule has been postponed pending additional guidance.

[2] 29 CFR 2590.715-2715A3(b)(4)(iii)

ACA Affordability Percentage Decreased Significantly for 2023

One of the most well-known components of the Affordable Care Act (ACA) is that it requires applicable large employers (ALEs) to either offer affordable, minimum value medical benefits to their full-time employees or pay tax penalties.  The ACA defined a plan as being affordable if the lowest-cost, employee-only option costs less than 9.5% of the employee’s household income.  However, the percentage of income for this purpose is adjusted annually for inflation.  Recent guidance from the Internal Revenue Service (IRS) decreases the affordability percentage significantly from 9.61% for 2022 to 9.12% for 2023.

Thus, for plan years beginning in 2023, employer-sponsored coverage will be considered affordable if the employee’s required contribution for self-only coverage under the lowest-cost available plan does not exceed 9.12% of the full-time employee’s income.

The 2023 affordability percentage is the lowest that the IRS has released since the ACA’s inception.  Most notably, it even falls below the statutory 9.5% affordability threshold upon which the annual inflation adjustments are based.  This significant affordability percentage decrease for 2023 means that many employers will need to increase the amount that they contribute towards employee coverage to continue to meet the affordability standard.  To avoid penalty exposure, ALEs should carefully analyze affordability in advance of open enrollment for their 2023 plan year.

Tougher Enforcement of the Contraception Mandate on the Horizon

By: Jennifer Berman, CEO, MZQ Consulting

On July 28, 2022, the Departments of Labor, Health and Human Services, and Treasury (the “Departments”) issued new FAQs clarifying their interpretation of the ACA’s requirement that non-grandfathered health plans provide contraception to participants at no cost. The new FAQs were issued in response to President Biden’s recent Executive Order on reproductive health. In addition to providing more detail regarding the requirements themselves, this publication announces that the Departments “are committed to ensuring consumers have access to the contraceptive benefits, without cost sharing, that they are entitled to under the law, and will take enforcement action as warranted.”  The detailed new guidance on the contraceptive mandate is explained below.

Requirements Related to Categorization of Contraceptives

Covered plans are required to automatically cover a least one form of contraception in each of the categories below without applying medical management.

Sterilization Surgery for WomenSurgical Sterilization via Implant for WomenImplantable Rods
Copper Intrauterine DevicesIntrauterine Devices with Progestin (all durations and doses)Shot or Injection
Oral Contraception (combined pill)Oral Contraception (progestin only)Oral Contraception (extended or continuous use)
Contraceptive PatchVaginal Contraceptive RingsDiaphragms
Contraceptive SpongesCervical CapsFemale Condoms
SpermicidesEmergency Contraception (levonorgestrel)Emergency Contraception (ulipristal acetate)

Other types of contraceptive services or products approved by the FDA must also be covered, even if they do not fall into one of the categories listed above. Medical management is only permitted if multiple, substantially similar services or products are available.

Medical Management

Strict limitations apply to medical management in this area. First, medical management is only permitted within a specific category of contraception. When this is the case, plans must automatically cover at least one option within a given category. Medical management may then be used for other options in that category, provided: (1) the techniques used are reasonable, and (2) the exceptions process discussed below is followed.

The FAQs specifically note that the following techniques would be considered “unreasonable” for this purpose:

  • Denying coverage for particular brand name options where a participant’s attending provider determines and communicates to the plan that the use of such brand is medically necessary.
  • Requiring a participant to fail first using other options within the same category before covering a service or product deemed medically necessary by the individual’s attending provider.
  • Requiring a participant to fail first using other options in other categories.
  • Imposing an age limit on contraceptive coverage.
  • Requiring a participant to use the plan’s claims and appeals procedures to obtain an exception.

Where access is limited by the plan to any FDA-approved contraceptive method, the plan must provide a “reasonably accessible, transparent, and sufficiently expedient exceptions process that is not unduly burdensome on the individual or their provider.”  Whether this standard is met is based on the relevant facts and circumstances. However, in any case, to meet this standard, the plan must provide documentation showing:

  • That the exception process is accessible without initiating an appeal through the plan’s internal claims and appeals procedures;
  • The types of information required as part of the exception request; and
  • The contact information for a plan representative who can answer questions related to the exceptions process.

This documentation must be included and prominently displayed in relevant plan documentation such as the Summary Plan Description and any other plan materials that describe the contraceptive coverage available under the plan (such as a prescription drug formulary). 

The Departments also recommend that plans develop a standard exception form with instructions. To this end, they indicate that the Medicare Part D Coverage Determination Request Form would be a good model for this purpose.

Specific Required Benefits 

The FAQs also specifically note that the following items/services are included in the definition of contraception and, therefore, must be covered without cost sharing:

  • Items and services integral to furnishing a recommended preventive service, such as anesthesia for a tubal ligation procedure or pregnancy tests needed before the provision of an intrauterine device.
  • Clinical services, including patient education and counseling needed to provide any covered contraceptive product or service.
  • Counseling and education about fertility awareness-based methods, including lactation amenorrhea.
  • Over-the-counter emergency contraception when prescribed by a treating physician, even when such products are prescribed before the need for their use arises. Plans are also permitted to cover such OTC products without a prescription. If an individual’s plan does not cover OTC emergency contraception, an HSA, health FSA or HRA may be used to cover such expenses.

The Departments also “encourage” plans to cover a 12-month supply of contraceptives at one time.

Conflicting State Laws

The guidance also clarifies that the federal mandate will control if there is a conflict between the federal contraception mandate and a state law. Thus, for example, if a state were to ban emergency contraception (commonly referred to as the morning after pill), such a ban would be invalid under federal law. The guidance goes on to specify that in such a case, the Department of Health and Human Services will take direct action to enforce these federal rules.


The FAQs also answer how the DOL will enforce the contraception mandate moving forward. When violations are identified, the DOL will ensure that necessary changes are made and require that improperly denied benefits be re-adjudicated. Further, DOL investigators will work directly with third-party administrators and other plan service providers to obtain corrections across blocks of business (instead of on a plan-by-plan basis). In these circumstances, actions will also be taken to ensure benefits are provided per applicable rules going forward. Similar principles are set forth for how CMS will enforce the contraception mandate for governmental plans exempt from ERISA. Finally, the guidance reiterates that violations of the contraceptive mandate can carry penalties of up to $100 per impacted participant per day.

Religious and/or Moral Objections

The FAQs described in this article follow years of litigation and regulatory debate about the applicability of the contraception mandate to religious organizations. Historically, a complicated set of rules has been applied to these circumstances. Among other things, the historical approach introduced an accommodations structure under which certain employers could opt out of the contraception mandate, but employees remained eligible to receive contraception free of charge through the plan’s third-party administrator. To qualify for such accommodations, which are still available, organizations must either self-certify their eligibility or notify HHS in writing of their religious objection. Under new interim final regulations effective in 2019, the accommodations approach is no longer required for non-church entities wishing to opt out of the contraception mandate.

Today, most employers, including publicly held for-profit companies, can opt out of the contraception mandate based on a sincerely held religious belief. Most employers other than publicly held for-profit companies can also opt out based on deeply and sincerely held moral objections. Entities wishing to take advantage of these opportunities are permitted to self-certify or notify the government of their eligibility. Such certifications are not legally required but remain prudent considering the potential penalties for failing to comply with the contraceptive mandate discussed above.

Final Thought

Many plan sponsors providing contraception at no cost to participants will be surprised to realize that their benefits do not meet the contraception mandate as explained by these FAQs. In particular, plans will need to work with their service providers to ensure the abovementioned requirements are met. Detailed attention should be paid to (1) formulary designs, (2) ensuring coverage is automatically available in each contraception category without medical management, and (3) compliant exception processes are in place.

Recent Federal Efforts to Affirm Access to Reproductive Healthcare Services

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, there have been two notable federal efforts to establish or reaffirm access to women’s reproductive healthcare services. First, the Departments of Health and Human Services, Labor and the Treasury (collectively, the Departments) released a letter at the end of June reiterating health plan responsibilities surrounding access to contraceptives under the ACA. Then, on July 8, President Biden signed an executive order intended to promote the protection of access to reproductive healthcare.

Interdepartmental Letter on Access to Contraceptives

The letter that the Departments recently released reminds insurance carriers and employers with non-grandfathered group health plans of their obligations under the ACA’s preventive service requirements to cover, at no cost to the participant, at least one form of contraception within each of the 18 contraceptive categories that the U.S. Food and Drug Administration (FDA) has identified. This requirement for cost-free coverage also applies when an individual’s medical provider recommends an FDA-approved, cleared or granted contraceptive product that does not fall within one of the identified categories. 

The Departments have included two additional “reminders” in their letter:

  • That carriers and group health plan sponsors are required to cover clinical services needed to supply contraception, including patient education and counseling; and
  • That employers and insurance carriers must establish “an easily accessible, transparent and sufficiently expedient exceptions process” to ensure participants can receive cost-free coverage for any contraceptive product their healthcare provider deems “medically appropriate” for them, even if that product is not covered under the plan.

The guidance states that it is being released because regulators are concerned that plan sponsors and carriers are not currently complying with the ACA’s coverage requirements. This is a strong signal that enforcement action in this area is forthcoming and that now is the time to make any necessary adjustment to comply with these rules.

President Biden’s Executive Order on Reproductive Healthcare

As noted above, on July 8, 2022, President Biden signed an Executive Order regarding access to reproductive healthcare services in direct response to the Supreme Court’s Dobbs ruling. There are three main components to this order, which are together designed to promote federal protections for those who seek or provide abortions and other reproductive healthcare services.

Among other things, the executive order directs HHS to: (1) protect access to prescription-based abortions, (2) ensure that pregnant women and those experiencing pregnancy loss have access to all rights provided for under the Emergency Medical Treatment and Labor Act, and (3) protect access to contraception.

The Biden administration’s position on this issue makes it clear that there will be forthcoming legal battles resulting from conflict between state and federal rules. Plan sponsors will need to maintain awareness of developments in both state and federal law over the next several years to ensure they remain in compliance.

Supreme Court Rules Employers Can Limit Benefit for Dialysis

By: Megan Diehl, Manager, Compliance Consulting, MZQ Consulting

The Supreme Court has been the focus of a great deal of the national discourse over the past several weeks.  In addition to the cases making headlines, the Court also issued a 7-2 ruling in a case directly related to employer sponsored health plans, Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.  In this case, the Supreme Court rejected dialysis provider DaVita’s claim that charging high out-of-pocket costs for dialysis treatments is in violation of Medicare’s Secondary Payer (MSP) rules.

The self-insured medical plan in question was designed to treat all dialysis providers as out-of-network, and consequently reimburse such treatments at a very low rate.  DaVita argued that the lack of any access to less costly in-network dialysis providers, in conjunction with the fact that nearly all end-stage renal disease (ESRD) patients in need of dialysis also qualify for Medicare, leads to discrimination against individuals with ESRD.  This, they argued, is a violation of the MSP rules that prohibit plans from discriminating against ESRD patients.

While the original ruling from the 6th U.S. Circuit Court of Appeals found that this plan design was discriminatory, and therefore in violation of the Medicare Secondary Payer Act, the Supreme Court’s ruling reversed this decision.  In their majority opinion, the Supreme Court found that because the plan provides the same dialysis benefits to all participants, whether or not they are eligible for and/or actually enrolled in Medicare (and regardless of whether participants have ESRD), the plan does not differentiate between individuals with ESRD and other participants in a way prohibited by the MSP rules.

The dissenting opinion released by the Court’s minority indicates that the plan’s design effectively discriminates against participants with ESRD because “outpatient dialysis is an almost perfect proxy for end stage renal disease.”  In other words, though some dialysis patients may not have ESRD, the majority of ESRD patients will require dialysis, to which end providing no in-network options for treatment is discriminatory.

Employer-sponsored plans do not need to take any action in light of this ruling.  However, the decision does create the opportunity for employers to explore new cost-containment measures around dialysis coverage. 

Implications of Abortion Decision for Employee Benefit Plans

By Jennifer Berman, CEO, MZQ Consulting

On Friday, June 24, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization finding that the United States Constitution does not guarantee a right to abortion access.  This decision effectively overturns its prior decisions in Roe v. Wade and Planned Parenthood v. Casey.  The decision will result in near immediate abortion bans in thirteen states.  Those states had previously passed laws providing such bans would go into effect upon a decision by the Supreme Court making such a prohibition legal. 

Last week’s decisions raise many questions for employee benefit plan sponsors that may take months or even years to fully resolve.  However, existing law does help to answer certain key questions:

How is it determined if fully insured plans cover abortion?

The benefits available through fully insured plans are generally prescribed by state law.  Under previously existing state laws, abortion is not covered under such policies.  In some such states, employers are permitted to purchase riders providing for abortion coverage, but in others there is no option to cover abortion in the fully insured market.  Conversely, other states require that all fully insured plans issued in the state cover abortion.  A map showing which states have laws limiting or requiring coverage is available here.

How is it determined if self-funded plans cover abortion?

Employer plan sponsors can generally decide if their plans cover abortion.  Self-funded plans are generally not subject to state laws prescribing benefits because ERISA preempts such laws.  However, a self-funded plan cannot pay for a procedure that is illegal in the location in which it is performed.  Therefore, plans that continue providing for abortion coverage will only be able to pay for such procedures when performed legally.

It is also worth noting that in recent years there has been litigation surrounding the extent to which state laws seeking to regulate self-funded health plans are preempted.  In a 2020 decision, the Supreme Court ruled that an Arkansas state law regulating pharmacy benefit managers was not preempted by ERISA because it did not govern “a central matter of plan administration or interfere with nationally uniform plan administration.”  It is likely that certain states will pass legislation attempting to limit the autonomy of self-funded plans to determine the extent to which they cover abortions and/or travel out of state for the purpose of obtaining an abortion.

Can an employer provide a benefit covering the cost of travel to obtain an abortion?

Generally, yes, but this will create certain legal risks.  Existing tax law includes travel expenses incurred “primarily for, and essential to, receiving medical expenses” in the definition of medical expenses that can be paid for on a pre-tax basis through a medical plan.  Thus, it appears that employers will be able to amend their self-funded plans to pay for such expenses.  However, plans are still subject to criminal laws, and such coverage may not be permissible if provided to a participant living in a state where it is illegal to assist a state resident in traveling to obtain an abortion.

Employers wishing to provide a travel benefit outside their health plan risk such a benefit being deemed to provide medical care.  Any employer program providing medical care is by definition a group health plan.  If such a plan only provided for travel benefits, it would raise its own set of compliance issues (e.g., failure to comply with the ACA, COBRA, HIPAA, etc.).

Other Considerations

As demonstrated above, even for established rules, the implications of the Dobbs ruling are broad and complex.  Other open issues that will need to be addressed moving forward include how to:

  • Design and administer plans operating in multiple states in light of competing state laws;
  • Handle prescription drug benefits for medications that can induce medical abortions; and
  • Apply illegal act coverage exclusions.

Delaware Passes Mandatory Paid Leave Law

By: Jennifer Berman, CEO, MZQ Consulting

On May 10, Delaware Governor Carney signed the Healthy Delaware Families Act establishing a mandatory paid leave program, making Delaware the eleventh state to enact such a program. Contributions towards the program will begin on January 1, 2025.  Benefits will be available starting January 1, 2026.

The available benefits under this program are keyed to employer size.  At companies with more than 25 employees, employees are eligible for all leave types available under the new rules.  At companies with 10 to 24 employees, employees are only eligible for parental leave.  At companies with fewer than 10 employees, none of the benefits created by this program are mandated, but employers may “opt in” to participation.

To be eligible for benefits, an individual must be employed by the company for a full 12-month period before taking leave and must have completed 1,250 hours of work in the 12-month period preceding their leave.  Program benefits include job protection and payments up to 80% of the covered employee’s average weekly wage.  Total benefits are capped at $900/week for 2026 and 2027, and indexed thereafter.  The benefit is available for the following reasons:

  • To care for a child during the first year after the birth, adoption, or placement through foster care;
  • To care for a family member with a serious health condition;
  • Due to a serious health condition that makes the covered individual unable to perform the functions of their job; or
  • Due to a “qualifying exigency” as defined by the FMLA.

Such benefits are available for up to 12 weeks in the applicable year for parental leave and a maximum of 6 weeks in any 24-month period for medical and family caregiver leave.

Program benefits will be made available through a new Family and Medical Leave Insurance Account Fund.  Contributions to this Fund in the form of a 0.8% payroll tax for employers with greater than 25 employees will begin on January 1, 2025.  This contribution amount drops to .32% for employers with 10 to 25 employees that elect to only provide for parental leave.  Employers have the option to pass on up to 50% of the new payroll tax to employees or make the contributions in full on their behalf.  Employers may also elect instead to opt out if they have an established paid leave program that offers comparable benefits.  All such private plans require approval from the Delaware Department of Labor.

We will continue to monitor the implementation of this new program in Delaware and bring you updates as they become available.

Revised Surprise Billing Independent Dispute Resolution Guidance

By: Jessica Waltman, Principal, Forward Health Consulting

The Centers for Medicare and Medicaid Services recently opened the much-anticipated federal Independent Dispute Resolution (IDR) Portal, a component of the No Surprises Act section of the Consolidated Appropriations Act of 2021 (the Act).  The opening of the portal and newly released guidance are part of the implementation of the balance billing protections contained in the Act.  For plan years beginning January 1, 2022, and any date thereafter, the Act prohibits health care providers from charging “out-of-network” rates for emergency care, air ambulance services, and all care from an “out-of-network” provider at an “in-network” facility.  Per the Act, the IDR portal is available to facilitate the resolution of disputes between providers and health plans over claims costs for those “out-of-network” services when the parties cannot otherwise come to an agreement on payment details.  

To support the IDR process, several federal departments jointly released; (1) guidance for IDR entities, those entities that are approved to mediate these billing disputes, (2) updated guidance for health plans and providers who might engage in the IDR process, and (3) FAQs for healthcare providers.

The updated IDR guidance accounts for the late-February 2022 federal court ruling that IDR entities should not rely predominantly on the plan’s qualifying payment amount (QPA), meaning the median rate for a particular “in-network” service, when resolving disputes.  These amounts are one of the components that health plans are required to submit when engaging in the IDR process.  With the exception of air ambulance services, the revised guidance now reflects that the QPA should be considered equally alongside other creditable information in the IDR’s determination process.  Notably, the guidance indicates that IDR entities should continue to rely on QPAs when resolving disputes regarding air ambulance services unless compelling evidence is presented to justify a different approach. 

As these updates underscore, the IDR process continues to evolve.  We will continue to monitor developments and provide relevant updates.

2023 Limits Announced for High Deductible Health Plans and Health Savings Accounts

By: Megan Diehl, Manager, Compliance Consulting, MZQ Consulting

Late last week, the Internal Revenue Service released updates to the maximum annual 2023 contribution limits for health savings accounts (HSAs) under high deductible health plans (HDHPs). These adjustments, which have increased slightly from 2022, apply to both individual and family coverage. The updates also include deductible minimums and out-of-pocket expense limits for HDHPs and an increase to the maximum amount that may be made newly available for excepted benefit health reimbursement arrangements (HRAs).

The 2023 limits are summarized below:

Annual HSA Contribution Limits

  • Individual with self-only coverage is $3,850.
  • Individual with family coverage is $7,750.

Annual Minimum Deductibles for HDHPs

  • Self-only coverage $1,500 or more.
  • Family coverage $3,000 or more.

Annual Maximum Out-of-Pocket Expense Limits for HDHPs

  • Self-only coverage may not exceed $7,500.
  • Family coverage may not exceed $15,000.

Plan Year Excepted Benefit HRA Maximum

  • Maximum amount for a plan year may not exceed $1,950.

Maryland Passes Mandatory Paid Leave Law

Jennifer Berman, CEO, MZQ Consulting

On April 9, 2022, the Maryland General Assembly overrode Governor Larry Hogan’s veto of the Time to Care Act of 2022 to establish a mandatory paid leave program. This program will provide for up to 12 weeks of paid leave for all employees in the State who meet minimum eligibility criteria. Such benefits will be provided either through a State-based program known as the Family and Medical Leave Insurance (FAMLI) Program or by private employers who elect to opt out of the FAMLI Program and instead pay such benefits either directly or through an insurance policy.

It will take several years to implement these new leave rules. Outlined below is the key information we know now about how this program will work.

Program Basics:

  • Any employer employing one or more employees in Maryland will be impacted.
  • Benefits must be made available to all “covered employees” in Maryland.
  • A “covered employee” is any individual who worked at least 680 hours in the 12 months immediately before the date leave begins.
  • Both employees and any employer with 15 or more employees must contribute towards the program’s cost.
  • Private employers may opt out of the FAMLI Program. However, if they do so, they must offer an alternative that meets the rights, protections, and benefits provided through the FAMLI Program. Any such private plan must be filed and approved by the Maryland Department of Labor.
  • Employers will be required to provide notice to employees about these new rules. The State will provide model notices.
  • Self-employed individuals may opt-in to the FAMLI Program for an initial term of three years. After that, they can decide each year if they wish to participate.

Program Benefits:

  • Benefits are available for up to 12 weeks per year for covered employees taking leave to:
    • Care for a newborn child or a child newly placed for adoption, foster care, or kinship care with the individual during the first year after the birth, adoption, or placement;
    • Care for a family member with a serious health condition;
    • Attend to a health condition that results in the individual being unable to perform functions of their job;
    • Care for a next-of-kin service member; or
    • Attend to a qualifying event arising out of a family member’s deployment.
  • The definition of “family member” for this purpose is quite broad, including, for example, legal guardians, grandparents, stepfamily members, and foster family members.
  • Leave may be taken on an intermittent basis.
  • The weekly benefit is based on a covered employee’s average weekly salary and can range from $50 to $1,000. 
  • Within this range, the required benefit is calculated using a benchmark equal to 65% of the State average weekly wage. The benefit is calculated as follows:
For employees making the State benchmark or less:90% of average weekly wage
For employees making more than the State benchmark:90% of average weekly wage up to the State benchmark PLUS 50% of remaining average weekly wages
  • Coverage runs concurrently with FMLA job-protected leave, if applicable.
  • The same benefit protection that applies during FMLA applies while an employee is on FAMLI Program leave.

Implementation is anticipated to follow the schedule outlined below:

June 1, 2022Effective date for the Time to Care Act of 2022
December 1, 2022Deadline for the Maryland Department of Labor (MDL) to make a recommendation of rates for participation in the FAMLI Program and the appropriate cost-sharing formula for employers and employees
June 1, 2023Maryland Secretary of Labor must set total contributions and % of the rate to be paid by employers (with > 15 employees) and employees
October 1, 2023Contributions to the FAMLI Program begin
January 1, 2025Benefits from the FAMLI Program begin

Notably, the new FAMLI Program does not supersede or change other existing federal and state laws requiring employers to provide paid and unpaid leave. 

We will continue to carefully follow the implementation of the FAMLI Program and its private employer alternative and provide additional information as it becomes available.

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