President-elect Trump’s new administration will be in place in just two months. Employers wonder about what the incoming administration will do with respect to workplace laws that impact them. In the Employee Benefits and ERISA (Employee Retirement Income Security Act) world, what comes to mind immediately are the Affordable Care Act and the Department of Labor’s expanded definition of a “fiduciary” (which an effective date of April 10, 2017).
We do not know how quickly the new administration might dismantle or replace the ACA or fiduciary definition, but we know is that a mere two days after Election Day 2016, President-elect Trump named J. Steven Hart (an accountant, a lawyer, and a lobbyist all in one) to lead the Labor transition team. As a lobbyist, Hart focused on benefits and tax policy. In the government, Hart worked on the White House Office of Management and Budget on ERISA issues and in what is now known as the Employee Benefits Security Administration at the Department of Labor. The DOL’s EBSA is tasked with enforcing ERISA rules. The immediate naming of someone who has had regulatory and enforcement experience on and drill-down understanding of employee benefits, retirement plan, and tax issues might signal that the undoing of both the ACA or fiduciary rules might come early in the 2017 year.
For now, we advise clients to continue to conform with the ACA and to be aware of the fiduciary rule that is slated to go into effect. Specifically, we note that, if clients were thinking of altering their group health plans to address ACA rules (including financial incentives, flex credits inside of cafeteria plans, Tricare, Medicare, coordination with Service Contract Act/Prevailing wage issues, etc.), those plans should be suspended until we get more direction on what may or may not remain of the ACA.