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OSHA Reporting Deadline Approaching

November 29, 2017


The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has extended the deadline for submitting OSHA 300 form information, required under the Improved Tracking of Workplace Injuries and Illnesses rule.

The new enforcement date of December 15, 2017 is quickly approaching. The Injury tracking Application (ITA) is accessible from the ITA launch page. This application is where you can provide OSHA the required elements of your 2016 OSHA forms.

As a reminder, establishments with 250 or more employees who are required to keep record of injuries and illnesses and establishments with 20-249 employees in high hazard industries must participate in this new rule. If you have 250 or more employees you must submit your OSHA 300 log, 300A summary and associated 301 forms for 2016. If you have 20-249 employees in a referenced high hazard industry you must only submit your 300A summary for 2016. Moving forward, employers will be required to submit their information each year by July 1st.

You can access detail directions and frequently asked questions regarding this new rule on the ITA launch page or feel free to contact the Loss Control Department at

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OSHA Extends Deadline for Submission of Form 300A information

November 28, 2017


OSHA has delayed the requirement for employers to submit their 2016 recordkeeping information until December 15th. You can read the full details here, and as always, if you have any questions regarding this information please reach out to the J.W. Terrill Loss Control Department at

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OSHA Delays Deadline for Crane Operator Certification

November 13, 2017


OSHA announced they are delaying the deadline for employers’ to ensure that crane operators are certified to operate cranes.  The deadline for the certification of operators has been postponed by one year until November 10, 2018. You can find all the details here.

Contact the J.W. Terrill loss control department at with any questions or concerns.

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Employer Mandate Penalties

November 7, 2017


The Affordable Care Act’s (ACA) employer mandate imposed many new requirements on employers. One that has been particularly cumbersome is the IRS reporting requirement and the 1094 & 1095 forms used to complete it. Although Applicable Large Employers (ALEs) have been completing these forms since 2015, the IRS has not assessed the shared responsibility payments (aka employer mandate penalties) to non-compliant companies. According to recent updates to the IRS employer mandate web page, however, that is about to change.

As this client-alert indicates, the IRS will begin notifying employers who owe penalties in 2015 “in late 2017” using Letter 226J. It will contain an itemized explanation of the proposed penalty by month, a list of employees who received subsidized marketplace coverage and a description of the steps an employer should take to appeal the proposed penalties. Employers will likely have 30 days to respond.

We will share more information as it becomes available and we will cover this in greater detail in our Healthcare Reform Update on December 15, where we will also discuss the 1094 / 1095 reporting for 2017. Click here to register.

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Navigating Silica-Don’t be Caught in the Dust

October 24, 2017


As we have been discussing these last few months, the new silica standard in construction establishes an 8-hour time weighted average (TWA) permissible exposure limit of 50 µg/m3 and action level of 25 µg/m3. OSHA has been enforcing the standard since September 23rd, but, for the first 30 days OSHA was offering compliance assistance in lieu of enforcement for employers making good faith effort to comply. Effective October 23rd OSHA began fully enforcing all provisions of the standard. Until a compliance directive becomes available OSHA Compliance Safety and Health Officers (CSHOs) are using interim enforcement guidance. This document demonstrates how the CSHO will check for compliance of the new silica standard in the field. The interim guidance will expire when the compliance directive becomes effective and available to the field CSHOs.

In addition, due to the new requirements silica exposures, OSHA has revoked their national emphasis program on crystalline silica. However the inspection procedures for both general industry and maritime will remain unchanged until the compliance date for these industries begin on June 23, 2018.

Materials like stone, asphalt and concrete contain crystalline silica. Activities such as abrasive blasting, cutting, sanding or drilling these materials can result in exposure to respirable crystalline silica dust. It is highly recommended to use controls available for some of these tasks outlined in Table 1 of the silica standard. The enforcement guidance states that if the employer fully and properly implement the engineering controls, work practices and respiratory protection listed in the table, it is not required for the CSHO to conduct exposure assessments of the work environment.

For contractors performing tasks outside of Table 1, OSHA has outlined alternative control measures to protect employees from silica exposure. If you are performing a task that falls outside of Table 1, and the compliance officer feels there is potential exposure, they will review your sampling data and control plan.  In addition, they will perform their own exposure assessment to determine the 8-hour TWA for the operations.

For both control measures, Table 1 or alternative controls, there are other requirements of the standard that include:

  • Establishing and implement a written exposure control plan which identifies task and procedures to restrict access to work areas were high exposure may occur.  Per the enforcement guidance document OSHA compliance officers are required to review the written plan along with any other related programs such as a hazard communications program and a respiratory protection plan.
  • Designate a competent person to implement the written exposure control plan.  It should be noted that employees working onsite should be familiar with who this competent person is if asked.
  • Offer medical exams that include chest x-rays and lung function test. This must be performed every three years for workers who are required to wear a respirator for 30 days or more per year.
  • Train workers on operations that result in silica exposures and what is the limit exposure.
  • Keep records of workers’ silica exposure and medical exams.

As always if additional assistance is needed please reach out to the J.W. Terrill Loss Control department at


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Cost-Share Subsidies: Back Again?

October 17, 2017


*UPDATE: After announcing and praising – just yesterday – the deal struck by Republican Senator Lamar Alexander and Senator Patty Murray, the President tweeted this morning:

Continued uncertainty surrounding the payment of the cost share subsidies will likely drive premiums higher and frustrate insurers participating in the public exchanges. Which may be the point, as the President has repeatedly tweeted about watching the ACA implode after Congress failed to repeal the law this summer:


Last week, President Trump announced that his Administration would not pay the cost-share subsidies to insurance companies offering plans on the public exchanges. Today, however, the President announced a bi-partisan Senate deal that he said would fund the cost-share subsidies for “a year or two years.” The deal reportedly gives states “more flexibility in the variety of choices they can give to consumers.” It would also reportedly restore $106 million in ACA outreach funding that was cut by President Trump.

The deal would still need to be approved by Congress, which is not a given. It may face opposition in the House. House Speaker Paul Ryan, in particular, praised the President’s decision to end the subsidies last week.


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Discontinuation of Cost-Sharing Subsidies in the Marketplaces

October 13, 2017


Also on October 12, the Trump Administration indicated it will stop paying cost-sharing subsidies immediately to insurance carriers in the Marketplace.

The cost sharing subsidies are available to individuals making 250% or less of the Federal Poverty Level (FPL). They are designed to fund lower out of pocket cost for these lower-income individuals.  Insurance carriers that offer a silver plan in the Marketplace are required to offer 3 variations of that plan for individuals that qualify for cost sharing subsidies. The variations have lower cost-sharing than the standard silver plan option. This is required by the ACA.  The government reimburses the insurance carrier for the cost associated with the lower cost payments in the form of subsidies.

The Trump administration ended the subsidies, but insurance carriers are still obligated to offer the 3 other plans with lower cost sharing.  Carriers anticipated the loss of these subsidies and submitted two sets of rates for approval by the Marketplace. The rates assuming no cost-sharing subsidies are approximately 20% higher.

It is important to note, the premium subsidies are unaffected.  If an individual qualifies for a premium subsidy, the cost for coverage under the second lowest cost silver plan is set a percentage of the individual’s household income.  The Federal government pays the remaining premium.  The 20% premium hike will be paid by taxpayers for those that receive premium subsidies.  Accordingly, the by ending the cost-sharing subsidies, the Federal government will likely pay more to supplement the individual’s premium, rather than splitting the difference with the insurance companies. Approximately eighty-five percent of individuals purchasing coverage in the Marketplace receive a premium subsidy. Premium subsidies can still trigger employer mandate penalties.

The cost-share offsets are authorized by statute but payments are not appropriated annually, which was challenged by former Speaker of the House John Boehner in a lawsuit that is still ongoing. That lawsuit is currently being appealed, and several states have intervened and defended the subsidies. Those states will likely argue that the Trump Administration’s decision to stop paying the subsidies is invalid. Additionally, State Attorneys General from Kentucky, Massachusetts, Connecticut, California and New York have filed a separate lawsuit challenging the Administration’s decision.


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President Trump’s Executive Order on Health Care

October 13, 2017


On October 12, 2017, President Trump signed an Executive Order addressing some provisions of the Affordable Care Act (ACA). The Order was described as “Promoting Healthcare Choice and Competition Across State Lines.”

The Order is comprised of seven sections. Generally speaking, it directs various administrative entities to issue guidance related to the topics covered. The Order itself contains a only high level view of the goals to change specific aspects of the ACA.  Once the regulations are drafted and released, employers will have a better sense of how these changes may impact the market.  In addition, legal challenges to this Executive Order are anticipated.


The Order states that it should be the policy of the Executive Branch to the extent consistent with law, to facilitate the purchase of insurance across state lines. The Executive Branch should also facilitate the development and operation of a health care system that provides high quality care at affordable prices for the American people.

The Trump Administration will prioritize three areas of improvement in the near term:

  1. Association Health Plans (AHPs)
  2. Short-term Limited Duration Health Insurance
  3. Health Reimbursement Arrangements (HRAs)

The Administration will also focus on promoting competition in health care markets and limiting excessive consolidation throughout the healthcare system. To the extent consistent with law, government rules and guidelines affecting the U.S. healthcare system should:

  • Expand the availability of and access to alternatives to expensive, mandate-laden ACA insurance including AHPs, Short-term Limited Duration Health Insurance and HRAs
  • Re-inject competition into the healthcare markets by lowering barriers to entry, limiting excessive consolidation, and preventive abuses of market power
  • Improve access to and the quality of information that Americans need to make informed healthcare decisions, including data about health care pricing and outcomes, while minimizing the reporting burdens on affected plans, providers and payers

The policy section outlines near term goals of the Trump administration to improving healthcare access and affordability.

Expanded Access to Association Plans

The Order directs the Secretary of Labor to consider, within 60 days, proposing regulations or revising guidance in accordance with the law to allow more employers to form AHPs. The Secretary should also consider expanding the conditions that would define an employer under ERISA as well as ways to promote the AHP formation on the basis of common geography or industry.

The goal of promoting AHPs is to allow smaller employers to overcome the competitive disadvantage with large employees who are able to spread the risk among a larger pool of members. The Order also states securing coverage through an AHP will allow employers to avoid many of the costly requirements of the ACA.  However, the Order does not detail which specific requirement AHPs will avoid.

The Order does not provide details on expansion of AHPs. More details will like be included in the proposed regulations or revised guidance.

Expanded Availability to Short-Term Limited Duration Insurance

The Order directs the Secretaries of Treasury, Labor and Health and Human Services to consider, within 60 days, proposing regulations or revising guidance in accordance with the law to expand access to Short-Term Limited Duration Insurance (STLDI). The Secretaries should consider allowing these policies to cover longer periods of time and to be renewed by insureds.

The goal is to offer an appealing and affordable alternative to Marketplace coverage. The ACA regulations limit the coverage period under these plans to three months.

The EO did not include the details on the expanded availability of these plans. The details on this provision will significantly matter to insurance carriers.  STLDI policies are not obligated to comply with ACA coverage mandates.  This will allow policies to be sold that don’t have to coverage essential health benefits.  These policies may also be permitted to include annual and dollar lifetime maximums.

The effects of this provision of the Order are unclear. Depending the details, healthier individuals may gravitate to STLDI policies, while sicker individuals will remain in the comprehensive Marketplace policies. Insurance carriers could struggle to stay in the Marketplace as rates will increase to reflect poor experience.  Many carriers may choose to exit Marketplaces over concerns they will not be able to operate profitably with a split risk pool.

Expanded Availability and Permitted Use of Health Reimbursement Arrangements (HRAs)

The Order directs the Secretaries of Treasury, Labor and Health and Human Services to consider, within 120 days, proposing regulations or revising guidance in accordance with the law to increase the usability of HRAs. The guidance should expand an employer’s ability to offer HRAs to their employees and allow HRAs to be used in conjunction with non-group coverage.

The goal of this expansion is to allow employees, especially ones that work for small businesses, more options for financing their health care. Small employers, however, can take advantage of Qualified Small Employer Health Reimbursement Arrangements (QSEHRA), which were included in the 21st Century Cures Act passed by the Obama Administration in 2016.

The Order does not include the details of this expansion of the HRA rules. HRAs are funded solely by employers and provide tax-favored funds to pay for eligible expenses not covered by the insurance plan.  The ACA has instituted significant limits on the use of HRAs.  In general, an HRA should only be provided to employees that are covered under the employer’s medical plan.  Loosening these rules may allow employers to fund HRAs that employees can use to purchase individual insurance coverage.

Bottom Line

The Order, by itself, does nothing to change existing law. It directs several federal agencies to consider and propose specific policy changes that, if implemented, would significantly change existing law. To change or implement new regulations, agencies must follow a notice and comment period. Agency regulations are subject to court review and a number of challenges to this Executive Order and any subsequent agency regulations should be anticipated.

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Telemedicine and Health Savings Accounts

October 12, 2017


As health care costs continue to rise, so does the demand for cost-control strategies. One such strategy is telemedicine. Telemedicine is a service offered through many health insurance plans by which patients can consult with a doctor over the phone or through videoconference. Telemedicine doctors can often prescribe medication, thus eliminating the need for a trip to the doctor’s office. The trend has been gaining popularity in recent years and many anticipate continued improvements and evolutions of the service in the near future.

But how is telemedicine a cost-control strategy? Telemedicine can eliminate the need for visits to the emergency room, urgent care or the doctor’s office – which could save up to $6 billion annually by one estimate. Without the typical costs associated with in-person consultations such as rent, overhead, nursing staff, etc., telemedicine uses readily available technology to deliver consultations at a fraction of the cost.

How that reduced cost is paid, however, depends on the health plan offering telemedicine service. For a traditional preferred provider organization plan (PPO), co-pays are typically used to offset the cost of a doctor visit. Co-pays for telemedicine consultations would also be appropriate. The rules for high deductible health plans (HDHP), however, are very different.

A HDHP allows subscribers to contribute to a tax-advantaged health savings account (HSA). To be eligible to participate in an HSA, participants in a HDHP cannot receive any employer payment – directly or indirectly – for medical expenses before the deductible is satisfied. Indirect payments would include cost-sharing in the form of co-payments for consultations. The IRS has not directly addressed the issue of HSA eligibility and telemedicine. However, its guidance suggests that an employer offering a HDHP with an HSA and a telemedicine option should require the participants to pay fair market value of the telemedicine consultation. What is the fair market value of a telemedicine consultation? Who knows? It’s likely more than a co-pay but less than the network rate of a doctor’s office visit. Additional IRS guidance on this topic would be helpful, but until it’s issued, employers with HDHPs should be wary of “free” or co-pay telemedicine services.

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Coordinating Leave Benefits

October 2, 2017


If you were unable to attend our webinar on September 20, 2017 (or the encore presentation on September 29), you can view the presentation by clicking this link. The slides are available here.

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Construction Safety Update: Crystalline Silica Standard

September 25, 2017


Recently a memo was released from Thomas Galassi, Acting Deputy Assistant Secretary, regarding the enforcement of the new Silica Regulatory Standard which became enforceable on September 23, 2017 in the construction industry.

You can find the memo here-

In summary, OSHA will take into consideration all good faith efforts taken by contractors to attempt to meet the new requirements.  OSHA will work with employers to ensure the use of all aspects of the Table 1 requirements in the field and provide guidance as needed to reach full compliance with the standard.  OSHA will only pursue citations if it appears that the employer is not taking efforts to implement controls.

For any questions or concerns regarding compliance with this silica standard please contact J.W. Terrill’s Loss Control Department at:

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Health Care Reform Update

September 8, 2017


The slides from this morning’s webinar on Health Care Reform are available here.

Thanks to all who attended!

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