"Employers can avoid a 2020 partial plan termination by increasing participant counts by March 31, 2021.... The Qualified Disaster provisions in the CAA are optional.... Plan sponsors of multiemployer plans in the building and constructions industry may allow in-service distributions at or after age 55."

"The HEROES Act extends student loan assistance under IRC Section 127 for five years.... [E]mployers may now pay employees up to $5,250 per year towards qualified educational expenses, student loan repayments (both principal and interest), or a combination of both -- tax free -- until December 31, 2025."

"[T]he ADA can be avoided altogether if the employee gets vaccinated by a third party provider who is not under a contract with the employer to administer the vaccine because the medical pre-screening questions are not attributed to the employer under this scenario. Thus, an employer could structure its wellness program to provide a financial incentive to participants to receive a vaccine from a third-party vendor, not under contract with the employer (e.g., a local pharmacy chain), without running afoul of the ADA."

"The retirement plan relief provisions in the CAA are divided between [1] qualified disaster relief (including actions Congress has historically taken to relax normal retirement plan distribution and withdrawal rules in light of a natural disaster) and [2] separate COVID-19 relief (including new rules for retirement plans in light of the ongoing COVID-19 pandemic). These retirement plan provisions are permissive, meaning that a plan sponsor is not required to adopt the provision."

"Given these minor retirement provisions, the Coronavirus Relief Bill is likely more notable for what was NOT included, rather than what was -- namely, the extension to any CARES Act deadlines for coronavirus-related distributions, loan repayments, and waivers of Required Minimum Distributions (RMDs). With none of these deadlines extended past year-end, plan participants can no longer take advantage of CARES Act features in 2021."

"When tackling FFCRA in 2021, keep in mind two critical principles: FFCRA has always provided for a maximum of 2 weeks/80 hours of emergency paid sick leave (EPSL) and a maximum of 12 weeks of emergency paid FMLA (EFML) between April 1, 2020 and March 31, 2021. No more. As of January 1, 2021, FFCRA effectively has become a tax credit statute. Its substantive provisions no longer are enforceable."

"Flexible Spending Account carryovers and grace period extensions permitted for plan years ending in 2020 and 2021.... Health care FSA reimbursements for terminated participants.... Carry-forward opportunity for aged-out dependents.... Surprise medical billing.... Safe harbor to avoid a partial plan termination.... Coronavirus related distributions permitted from money purchase pension plans.... Non-COVID related disaster distributions."

"[B]etween February and June 2020, 7.7 million workers lost jobs with ESI, and the ESI of these workers covered 6.9 million dependents, for a total of 14.6 million affected individuals. [An] Urban Institute report in July concluded that, on average from April to December 2020, 7.3 million workers and their dependents would lose ESI as a result of the recession.... A direct estimate from the BlueCross BlueShield Association suggests that only 3.1 million people lost ESI between March and September."

"The new law does include retirement plan tax breaks for non-COVID-19 disaster declarations, like fires or hurricanes. Those breaks are the same breaks Congress provided in prior disaster relief legislation and in the CARES Act for CRDs.... The legislation also includes the same relief for plan loans made on account of a covered disaster that we saw in prior legislation.... [N]one of this relief applies to COVID-related distributions or loans taken in 2021. The new law also does not extend the waiver of required minimum distributions (RMDs) into 2021."

"[1] Relief from partial plan termination rules ... [2] Money purchase plan coronavirus related distributions ... [3] Relief for overfunded pensions with a current 420(f) election ... [4] Limited relief regarding in-service distributions for certain building trade multiemployer plans ... [5] Disaster provisions ... [6] Qualified disaster distributions ... [7] Recontributions of hardship withdrawals for purchase or construction of home ... [8] Plan loan provisions."

"Whether employers elect to continue offering EPSL or EFML, they should keep in mind the interplay with paid COVID-19-related leave under state and local law, as well as paid and unpaid leaves available under the [FMLA] ... Where state and local laws provide paid leave for reasons that overlap with the FFCRA, it makes sense for employers to continue to offer EPSL and EFML in order to obtain the payroll tax credit that is not available when leave is provided only under state or local law. Employers should be sure to designate the leave as EPSL/EFML in such circumstances, and properly document it."

"On December 29, 2020, the [DOL] issued two guidance documents addressing: [1] telemedicine visits as qualifying treatment visits under the Family and Medical Leave Act (FMLA), and [2] satisfaction of FMLA workplace posting requirements through electronic notifications. The new requirements reflect the evolving workplace landscape, support social distancing and infection control efforts, and facilitate the availability of health care."

"On January 5, 2021, California's 2021 emergency paid sick leave landscape became clearer as San Jose enacted a revised emergency paid sick leave ordinance, and Los Angeles County directed staff to prepare a proposal to revise its currently expired ordinance. Additionally, officials in Santa Rosa and Oakland have calendared discussions concerning what to do with their expired laws."

"Ultimately it is up to the IRS whether your FFCRA wage payments qualify for the tax credit. This was true in 2020, and not just unique to employers who extend the leave into 2021.... Time spent administering the leave balanced against employee usage  ... Potential for discrimination claims ... Employees using any form of paid leave for an extended period of time have the potential to cause a business disruption to your operations."

"Nearly 60% of respondents took a withdrawal or loan from their retirement accounts in 2020. However, even as the stock market was touching new highs, investment mixes reported in the poll were very conservative. Stocks accounted for just 36% of the average allocation, and cash made up a whopping 24% of portfolios."

"[1] When determining employees' eligibility for FFCRA leaves, consider employees' total use of FFCRA leaves, including leave taken last school year.... [2] Consider intermittent leave options to maximize employee productivity and leave options.... [3] Request documentation to support the qualifying reason for an employee's FFCRA leave, including the employee's statement that his/her child's school was closed for in-person attendance."

"[An] employer will likely be unable to claim a tax credit for paid EPSL provided to an employee in 2021 if that same employee already took 80 hours of EPSL in 2020. Similarly, an employer cannot claim a tax credit for the full 80 hours of EPSL voluntarily provided to an employee in 2021 if the same employee took less than 80 hours of EPSL in 2020 ... The available tax credit for paid EFMLA in 2021 is more complicated ... [and] will likely depend on how the employer calculates the 12-month period under its FMLA policies, and how much FMLA/EFMLA an employee has taken during the 12-month period."

"Covered employers who voluntarily continue to offer FFCRA leave through the first quarter of 2021 will be eligible for the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave. For New York employers, though, their responsibilities under Senate Bill 8091, which guarantees certain leave, benefits and job protections to employees affected by COVID-19, remain in full force."

"D.C.'s COVID-19-leave laws took effect on March 11, 2020, and are set to expire on March 31, 2021. In 2020, employers subject to both the FFCRA and these D.C. laws generally fulfilled their D.C. COVID-19 leave obligations when they provided FFCRA leave to covered employees. Now, employers with workers in D.C. should ensure they provide D.C. COVID-19 leave to covered employees who need it."

"While there may have previously been confusion or uncertainty about whether remote visits to a healthcare provider should be considered as valid 'treatment' that would render an employee eligible for protected time off under federal law, [FAB 2020-08] offers the first definitive word from federal authorities in the wake of the COVID-19 pandemic that this temporary policy will be extended for the foreseeable future. The agency also released [FAB 2020-07] on how employers can satisfy federal posting requirements via electronic communication methods."

Updated on Dec. 31, 2020, to add Q&As 104 and 105:

104. I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020?
105. I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? 

"Most employers created FFCRA paid leave policies that expressly expire on December 31, 2020. If an employer decides to provide extended FFCRA paid leave to employees, it may need to update its FFCRA policy to reflect that it will be in effect through March 31, 2021.... Even if an employer chooses not to provide FFCRA leave in early 2021, some state and local laws may require an employer to provide COVID-19-related paid leave to employees. In addition, many states have general paid leave laws set to go into effect on January 1, 2021[.]"

"[An] employer should not assign any work to employees on FMLA/CFRA leave in order to avoid interference claims. Necessary communications about work assignments should be brief, done sparingly, and not require the employee to travel to the workplace. The employer may also send e-mails to employees, but should not expect employees on leave with remote access to respond prior to returning."

"Covered employers are permitted to extend partially paid FFCRA leave and to claim a payroll tax credit for qualifying leave taken through March 31, 2021. FFCRA rights expire on December 31, 2020, for employees of covered companies who do not voluntarily elect to extend the benefits. Employers must still accommodate employees with disabilities and comply with employee protections mandated by state and local laws."

"Employers with employees who had been on FFCRA leave, which will expire on December 31, 2020, should evaluate the circumstances of continued leave ... Employers allowing employees to continue their FFCRA leave up to the original leave entitlement may claim the payroll tax credit until March 31, 2021. Employers should evaluate what leaves and benefits may be available to employees seeking time off for COVID-19 related reasons, beyond the FFCRA and California COVID-19 Supplemental Paid Sick Leave law."