Important Notices

Sunday, June 14, 2020


Weekly Opinion Editorial



by Steve Fair


     State Question #802 will be on the June 30th primary ballot.  It is an initiative petition supported by those who want to expand Medicaid program for low income Oklahomans whose income does not exceed 133% of the federal poverty level.  If passed, it would become a part of the state Constitution. 

     Oklahomans Decide Healthcare is the group supporting SQ #802.  They contend that expansion of Medicaid will make Oklahoma families heathier and the economy stronger.  The Oklahoma Council of Public Affairs(OCPA) opposes SQ #802, partly because federal bureaucrats set the federal poverty level.  Governor Kevin Stitt opposes SQ #802 saying, “If SQ#802 passes, our state agencies will experience deep cuts because the ballot measure offers no mechanism to pay for it.”  Four observations:

     First, health care funding should not become part of the state Constitution.  That is the primary fishhook in SQ #802. There are those who support expansion of Medicaid who oppose having it into the state Constitution.  Having it in the Constitution forces the legislature to fund it, no matter what.  Bad idea.   

     Second, Oklahoma taxpayers can’t afford Medicaid expansion.  With the downturn in the oil and gas industry, gross revenue tax revenue is down.  Unemployment is up in the Sooner state and couple that with the pandemic, it is certain that other sources of revenue will be down as well.  Oklahomans Decide is wrong- putting more tax burden on hurting, struggling people doesn’t strength the economy, it cripples it.

     Third, the federal matching funds are not guaranteed to be there forever.  OCPA says,  "Oklahoma would be obligated to provide medical assistance to adults at or below 138% of the federal poverty level regardless of whether Congress continues to pay a large portion of the costs. Congress would dictate how much money actually leaves Oklahoma’s treasury.”   Congress currently appropriates the federal matching funds for Medicaid, but they can quit at any time.  With SQ #802 in the Oklahoma state Constitution, Oklahoma taxpayers will have to pick up the slack if Congress quit funding the expansion

     Fourth, it is still unclear how many are eligible and will sign up if Medicaid is expanded.  State health officials estimate that 220,000 will be eligible and 180,000 would sign up.  In several states, the actual numbers who signed up for Medicaid expansion was much higher than the estimates and created funding issues. 

     According to the Centers for Medicare and Medicaid Services (CMS), healthcare spending in the US is estimated to grow by 5.4% annually for the next eight to ten years.  Projections indicate health care spending will cost an estimated $6.2 trillion by 2028.  Much of that is due to the aging population in the US. Healthcare will continue to be a topic of discussion for the foreseeable future and Medicaid expansion may be necessary in Oklahoma, but SQ #802 is not the way to do it.

    Vote no on SQ #802 for the following reasons: (1) Healthcare funding should not be a part of the state Constitution, (2) It is an unfunded mandate.  It doesn’t increase taxes to pay for the expansion- it just mandates it, (3) Oklahoma taxpayers simply can’t afford it.   

May 29, 2020

Oklahoma scraps plan to expand Medicaid on July 1

OKLAHOMA CITY (AP) — Oklahoma Gov. Kevin Stitt’s administration is scrapping a plan to expand Medicaid on July 1, citing a lack of state funding.  The state’s Medicaid Director Melody Anthony notified the U.S. Department of Health and Human Services in a letter Thursday that the state was withdrawing its proposal.  The Stitt administration pushed for the expansion in March, but after the Legislature narrowly passed bills to help pay for the state’s share, including one that increased a fee that hospitals pay, Stitt vetoed them.

Stitt said in his veto message that while he appreciated the Legislature’s willingness to help fund his expansion plan, he worried that the rising unemployment rate would dramatically increase the number of people who qualified for Medicaid.

The governor is still pursuing a block-grant-style Medicaid expansion offered by the Trump administration, dubbed the Healthy Adult Opportunity waiver, that would give states more control over Medicaid in exchange for a limit on how much the federal government kicks in. But that proposal wouldn’t take effect until 2021.

Meanwhile, Oklahoma voters will decide on June 30 whether to fully expand Medicaid when they vote on State Question 802. That proposal, if approved, would also take effect next year and would supersede the governor’s plan.

A Medicaid expansion would extend health insurance to low-income adults who earn up to 133% of the federal poverty level, or $16,970 for an individual and $34,846 for a family of four. The Oklahoma Health Care Authority, the state’s Medicaid agency, initially estimated about 220,000 Oklahomans would immediately qualify, at a total cost of about $1.24 billion annually. The federal government would cover about $1.1 billion in annual costs with the state responsible for about $150 million each year.

But with skyrocketing unemployment in Oklahoma as a result of crashing energy prices and an economic slowdown due to the coronavirus pandemic, the number of people who qualify for Medicaid, and the cost of the program, could be much higher.


March 16, 2020

 Employment and Labor Client Alert 

Employment & Labor Client Alert
The Families First Coronavirus Response Act:  
Employers with 500 Employees or Less Must Offer FMLA and Paid Leave for COVID-19, if Passed
By: Paula Williams, Chris Thrutchley, and James Scears
March 15, 2020

On March 14, the U.S. House passed the Families First Coronavirus Response Act by a vote of 363 to 40. It requires employers with 500 or fewer employees to grant FMLA leave due to COVID-19 and up to two weeks of paid sick leave for absences related to COVID-19. To help employers pay for it, the Act grants employers refundable tax credits. The Act also expands unemployment benefits due to COVID-19. It will sunset at the end of 2020. 


President Trump called it “good teamwork” between Democrats and Republicans, signaling support for the bipartisan bill. Early this next week, the Senate will take up its version and, if passed in a different form, the Act will move through reconciliation.   This Client Alert summarizes key details of the version just passed by the House to help employers prepare for what’s likely to come. GableGotwals' Employment & Labor team is closely monitoring the developments. As soon as President Trump signs a final version, we will notify employers. We will also have policy templates available for employers to use for compliance with the final version of the Act. Employers should stay alert as we monitor updates and changes closely.   Please consider forwarding this Client Alert to anyone you know who handles HR for smaller employers that may be impacted by this Act. 


Emergency Family and Medical Leave Expansion Act
The Act includes the Emergency Family and Medical Leave Expansion Act. The FMLA Expansion extends the FMLA to expand to all employers under 500 employees (with some limited exceptions). Employees who have worked for the employer at least 30 days may take up to 12 weeks of protected FMLA leave for any of the following reasons related to COVID-19: 

•    Quarantine, whether required or recommended based on exposure or symptoms; 
•    Caregiving for an at-risk family member in required or recommended quarantine; or 
•    Caregiving for an employee’s child whose place of care or school has closed due to coronavirus. 

The first two weeks may be unpaid unless the employee chooses to use paid time off benefits. An employer cannot force the use of paid time off benefits. After two weeks, employers must pay for the FMLA leave at no less than two-thirds of the employee’s usual rate of pay. After the leave, employers must restore the employee to the same or equivalent position (with some exceptions for employers with fewer than 25 employees). The Secretary of Labor may issue regulations exempting employers with less than 50 employees when the “requirements would jeopardize the viability of the business as a going concern.” 

Like the FMLA, the FMLA Expansion prohibits retaliation against an employee who either requests to use or uses FMLA-COVID-19 leave. Under the FMLA, not only may an employer be held liable for violations, but also individual managers and supervisors face risk of personal liability. 


Emergency Paid Sick Leave Act
The Act also includes the Emergency Paid Sick Leave Act. The Sick Leave Act requires employers to provide employees (no matter how long they’ve been employed) up to two weeks of paid emergency sick leave in order to: 

•    Self-isolate because of a coronavirus diagnosis; 
•    Obtain a diagnosis when experiencing symptoms; 
•    Self-quarantine based on a public official or healthcare provider recommendation due to exposure or symptoms; 
•    Care for a family member who is self-isolating or experiencing symptoms; or 
•    Care for a child if the school or place of care has closed due to coronavirus. 

Emergency sick leave is in addition to any other sick leave already provided by the employer if the employer’s leave was in place before the date of enactment of the Act. The Act prohibits employers from: 

•    Changing leave policies to avoid the Act; 
•    Requiring employees to use other paid leave before using emergency sick leave; or
•    Requiring employees to find a replacement to cover for them while using emergency sick leave.

Emergency sick leave is capped at 80 hours for a full-time employee. Part-time employees may take the typical number of hours they work in an average two-week period. Unused emergency sick leave does not carry over into 2021.

Tax Credits for Emergency Leave and FMLA Leave
Employers who pay for emergency sick leave or FMLA-COVID-19 leave will be allowed refundable tax credits generally equal to 100% of the amounts required to be paid during each calendar quarter (with certain caps and limitations on the credits available depending on the type of leave being paid and the reason the employee takes leave). These refundable tax credits are allowed against the employer portion of Social Security taxes. Self-employed individuals separately qualify for similar refundable tax credits.

Best Practices to Manage Coronavirus in the Workplace
As the Act unfolds, GableGotwals is committed to helping employers address the many nuances and legal considerations that accompany coronavirus in the workplace. We are developing policy templates for employers who already have an FMLA policy, employers who do not have any FMLA policy but will need to adopt one, and for all employers who will need an emergency sick leave policy to comply with the final version of the Act once it takes effect. We will also provide information for a webinar soon. In the meantime, employers should be doing following now: 

•    Review your current leave-related policies and be prepared to consult counsel quickly to update your policies if needed; 
•    Consider restricting non-essential business travel; 
•    Require that employees comply with CDC quarantine guidance when returning from personal travel to a high-risk area; 
•    Send employees home who exhibit coronavirus symptoms, and require they not return until they are 24-hours symptoms free; 
•    Do not ask employees questions likely to elicit information about a disability unless job related and consistent with business necessity; 
•    Instruct managers and supervisors to promptly notify HR in confidence of any employee who says anything about having a physical or mental impairment so HR can coordinate with in-house or outside counsel to ensure any potential FMLA or ADA issues are handled in the right way; 
•    Make temporary, emergency modifications to remote-work policies; 
•    Be aware of employees with disabilities, such as those who are immuno-compromised, who may require accommodation; 
•    Keep all medical information separate and strictly confidential; and 
•    Request that employees self-report known exposure to the coronavirus. 

If you would like to be added to Gable's Employment & Labor mailing list, please contact Melissa Pasha.

Paula M. Williams
Chris S. Thrutchley
James M. Scears



This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

January 1, 2019

There is no longer an individual mandate penalty for not being insured.  However, when you file your 2018 tax return, in 2019, a penalty still applies to the 2018 plan year.

May 4, 2017


Our email was down the entire day today.  We have no way of recovering emails that you may have sent on this day.  If you emailed us on Thursday, May 4, 2017, please resend your email.

Feb. 20, 2017

Individuals Need Not Report Health Coverage Status on 2016 Tax Returns

Without notice or fanfare, the IRS recently modified its website to report a softening of Affordable Care Act (ACA) enforcement for those filing individual 2016 tax returns. The IRS indicated that because of President Donald Trump's executive order directing agencies to minimize ACA impact (see our Alert), the IRS will not reject an individual tax return (single or joint) that is missing health coverage information (e.g., on line 61 of the Form 1040, line 11 of Form 1040EZ) designed to demonstrate compliance with the ACA's individual mandate. Previously, the IRS had implemented an edit that would have automatically flagged and rejected a tax return missing that information.

This action by the IRS doesn't mean it won't enforce the individual mandate (at least for now; Congress is actively considering the mandate's repeal, perhaps even retroactively). This action simply means the IRS won't reject a taxpayer's return outright if the taxpayer doesn't answer the health coverage question. The IRS reserves the right to follow-up with a taxpayer, at a future date, regarding his or her compliance with the individual mandate, if the person's tax return doesn't provide information about his or her health insurance coverage during 2016.

Lockton comment: What happens, then, if the individual mandate or at least its penalties is repealed? For those individuals who have already filed returns and who may have paid additional penalties for failure to carry health coverage under the individual mandate, we would imagine that the IRS will either (a) automatically reduce a person's tax liability by any individual mandate penalty paid or (b) provide guidance on amending a tax return to obtain a refund of penalties paid.

For those individuals who previously filed without providing health insurance information or who indicated that they did not carry coverage as was required, but did not include the penalty payment, whether the IRS will assess penalties depends on the retroactive nature of the repeal of the individual mandate or its penalties. But even if the repeal isn't retroactive, it may well be that the IRS, pursuant to President Trump's executive order, won't move to assess penalties for past violations of the individual mandate. In addition, if a 2016 return was rejected for failure to provide health insurance coverage information, it is unlikely that the IRS will require an individual to provide this information, and the tax return may be able to be resubmitted without response. We would expect the IRS to offer additional guidance to individuals whose returns had been rejected on this basis.

Lisa Carlson, JD Lockton Compliance Services

Lockton Benefit Group | 444 West 47th Street | Suite 900 | Kansas City | MO | 64112

Call us today on 1-918-747-7788

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