EEOC Disavows Former General Counsel’s Letter on Abortion Travel Benefits

We understand a former general counsel of the Equal Employment Opportunity Commission (EEOC or Commission), Sharon Fast Gustafson, recently sent a form letter to various employers alleging that providing abortion-related travel benefits to their employees could result in unlawful discrimination. Specifically, Gustafson’s letter avers that offering abortion travel benefits without also offering travel benefits for other health conditions may constitute several types of discrimination, including pregnancy and childbirth discrimination under Title VII of the Civil Rights Act of 1964, disability discrimination under the Americans with Disabilities Act and religious discrimination.

The letter does not actually threaten any litigation and appears designed to advance Gustafson’s personal agenda. However, recipients may be concerned that Gustafson’s views could be conflated with those of the EEOC, since the letter’s opening paragraph describes Gustafson as a “recent General Counsel of the Equal Employment Opportunity Commission (EEOC) with 31 years of experience practicing primarily employment law.”

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Navigating Open Enrollment Notice Requirements

Fall open enrollment is upon us, and plan sponsors and administrators are preparing to provide their employees with the required notices related to their health and welfare plans. Notice and disclosure obligations for health and welfare plans have become increasingly complex, with some information being required at initial enrollment and others required annually. Although insurers and third-party administrators may prepare or distribute these notices, ultimately the responsibility for compliance often rests with the plan sponsor or plan administrator.

Some of the notices routinely included in open enrollment materials are listed below.

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IRS Extends Temporary Relief from “Physical Presence” Requirement Through December 31, 2022

The IRS recently issued Notice 2022-27, providing a six-month extension of the temporary relief from the physical presence requirement for certain plan elections (including spousal consents) required to be witnessed by a plan representative or notary public. Issued in response to the COVID-19 pandemic, the IRS provided initial relief from the physical presence requirement for the period January 1through December 1, 2020, provided initial extended relief through June 30, 2021, and extended relief for a second time through June 30, 2022. Most recently, Notice 2022-27 extends the relief through December 31, 2022.

The temporary relief from the physical presence requirement applies to any participant election witnessed by a notary public of a state that permits remote electronic notarization or by a plan representative, if certain requirements are satisfied. We discussed those requirements in a prior blog post on this topic.

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IRS Pilots Pre-Examination Compliance Program for Retirement Plans

In its recent June Employee Plans newsletter, the Internal Revenue Service (IRS) announced the launch of a 90-day pre-examination compliance pilot program. Under the program, the IRS will notify a plan sponsor that its retirement plan has been selected for pre-examination. The notification will provide the sponsor with 90 days to review retirement plan documents and operations to determine compliance with current tax law. If the sponsor does not respond within 90 days, the IRS will contact the sponsor to schedule an examination.

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