Health & Welfare Plans Newsletter

March 18, 2020

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[Guidance Overview]

Top Health & Welfare Plan Compliance Issues Due to the COVID-19 Outbreak

"HIPAA allows PHI to be disclosed without an individual's authorization when disclosed to appropriate authorities engaged in public health activities.... However, these provisions for disclosure are rarely applicable to health plans.... GINA prohibits an employer from asking an employee whether a family member has tested positive for coronavirus or exhibited symptoms.... [I]ndividuals covered by [an HDHP] will not fail to be eligible individuals for HSAs merely because of the provision of those health benefits for coronavirus testing and treatment.... HHS released a set of FAQs on essential health benefits and the coronavirus."

Frost Brown Todd LLC

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The COVID-19 Pandemic: Recommendations for Employers

"[I]nforming employees of what senior leadership in your company is doing and thinking is an important step in easing minds and allaying employee concerns.... Employers should make sure to review their policies and any applicable collective bargaining agreements to comply with any obligations they may have to provide paid time off or continuation of payment during a possible business closure.... Ensure compliance with FMLA and PFL obligations ... Consider travel restrictions or warnings ... Be aware of the EEOC's guidance on pandemics ... Plan for alternative work arrangements."

Bond, Schoeneck & King

Key Considerations for Designing a COVID-19 Emergency Leave Policy

"San Francisco may be the first to implement 'shelter in place' requirements, but they are unlikely to be the last. A number of employers are considering implementing an emergency leave policy. What are the key ingredients of such a policy? Here are the top four provisions to consider: [1] What will the emergency leave policy provide? ... [2] How long will the policy last? ... [3] How does the policy vary by type of employee? ... [4] How will emergency leave be administered?"

Mercer

House Passes Technical Corrections to COVID-19 Relief Bill

"The technical corrections added a parenthetical clarifying that plans would be required to provide 'coverage, and shall not impose any cost sharing' for telehealth services related to COVID-19 testing.... [This] creates a number of questions, including: [1] If a plan does not currently offer a telehealth option, will it be require to add a telehealth service? [2] If a plan presently covers telehealth through a contracted stand-alone vendor ... will it be required to also cover telehealth visits with traditional providers (e.g., primary care physicians)? [3] If a plan expands coverage to offer telehealth for medical services relating to COVID-19 screenings, is it required, under the MHPAEA, to also offer telehealth services for mental health or substance abuse counseling?"

Seyfarth

Last-Minute Changes to HR 6201 Reduce Scope of Paid Sick Leave

"The bottom line is that pending federal legislation to provide paid leave to employees out of work for COVID-19 related reasons is changing by the day. Employers should continue to plan now for the likelihood that some form of leave expansion will be enacted. In addition, employers should monitor state and local activity, as some jurisdictions are adopting or expanding mandated leave entitlements for workers to cover COVID-19 related circumstances."

Ballard Spahr LLP

Pending Coronavirus Legislation May Impact FMLA and Paid Leave

"Because the Senate version will likely differ from the current House bill, a detailed analysis of the bill and its provisions is premature. For employers, key parts of the bill are those concerning expansion of the Family and Medical Leave Act (FMLA) and the provision for paid leave. The Emergency Family and Medical Leave Expansion Act is Division C of the FFCRA, and the Emergency Paid Sick Leave Act is Division E. Other aspects of the FFCRA, including those concerning partial tax credits for the paid leave, can be found here."

Jackson Walker

Puerto Rico Bill to Provide Emergency Leave for Pandemic Illness Revised to Require Paid Leave

"The Puerto Rico Senate has revised House Bill 2428 to replace the provision of 20 days of unpaid emergency leave due to diagnosis of a pandemic illness with five days of paid emergency leave.... The Senate amendments also provide that the five days of paid emergency leave can be used after other leaves have been exhausted."

Jackson Lewis P.C.

Employee Benefits Considerations Under the Proposed 'Families First Coronavirus Relief Act'

"The FFCRA is a bill that has not yet been signed into law, and the bill has a substantial amendment. It is comprised of a number of separate pieces all of which have names of individual acts ... In addition, the FFCRA also amends a number of other federal laws and provides tools for individuals and employers to use to ride out the impact of the Coronavirus, or COVID-19, outbreak.... [It] is important to remember that it is only a proposal at this time; it is not law[.]"

Jackson Walker

New Mandate for Paid Sick Leave and Long-Term Leave Probably Coming for Some Employers Due to COVID-19 Emergency

"A revised bill passed by the US House of Representatives on March 16 to address the coronavirus (COVID-19) public health emergency imposes a mandate on all employers with fewer than 500 employees, and on all federal and state employers, to provide paid time off to employees who need leave for reasons connected to the public health emergency. Private sector employers will receive a tax credit equal to 100% of the money they spend on the paid leave. Although tax-exempt employers will not receive a credit, they must also provide paid time off under the bill.... The bill is expected to be passed shortly by the Senate and signed by the president."

Morgan Lewis

Technical Explanation of Division G, 'Tax Credits for Paid Sick and Paid Family and Medical Leave,' of HR 6201, the 'Families First Coronavirus Response Act'

24 pages. "This document ... provides a technical explanation of Division G, 'Tax Credits for Paid Sick and Paid Family and Medical Leave,' of HR 6201, the 'Families First Coronavirus Response Act' as received in the Senate on March 17, 2020.... Explanation of provisions: [1] Payroll Credit for Required Paid Sick Leave (sec. 7001 of the bill) ... [2] Credit for Sick Leave for Certain Self-Employed Individuals (sec. 7002 of the bill) ... [3] Payroll Credit for Required Paid Family Leave (sec. 7003 of the bill) ... [4] Credit for Family Leave for Certain Self-Employed Individuals (sec. 7004 of the bill) ... [5] Special Rule Related to Tax on Employers (sec. 7005 of the bill)."

Joint Committee on Taxation [JCT], U.S. Congress

Behavioral Health Ruling Supports Benefit Claim Appeals

"Prior to the issuance of the Wit decision, most courts simply accepted insurers' arguments that their claim decisions were made in accordance with industry-developed guidelines without examining whether there was a consistency between the insurers' guidelines and generally accepted standards of care and treatment. The impact of the Wit ruling has been profound." [Wit v. United Behavioral Health, Nos. 14-2346, 14-5337 (N.D. Cal. Mar. 5, 2019)]

DeBofsky Sherman Casciari Reynolds P.C.

Benefits in General

Editor's Pick Employee Benefits and Furloughs in the Era of COVID-19

"[K]ey employee benefits issues that employers will need to address as part of a furlough [are:] Health and Welfare Plans: [1] The implementation of an employee furlough does not necessarily mean that health coverage under an employer's group health plan will terminate.... [2] A furlough is not a COBRA qualifying event, unless it results in a loss of group health coverage.... [3] Depending on how long the furlough lasts, employers may need to consider how a furlough in 2020 may affect the determination of full-time employee status for health coverage in the 2021 plan year.... Retirement Plans: ... [1] [To] the extent that employees are not paid during a furlough, they will not be entitled to make pretax, Roth after-tax or traditional after-tax contributions to their retirement plan ... [2] A furlough does not necessarily constitute a severance from employment for retirement plan purposes.... [3] [M]any defined benefit pension plans will experience declines in funded status.... [4] [U]nless and until [IRS] relief is issued, all retirement plans deadlines will continue to apply[.]"

Ballard Spahr LLP

SECURE Act Provides a Tenfold Increase in Penalty for Late Filing of Retirement Plan Annual Report (Form 5500)

"Effective for returns required to be filed after December 31, 2019, the SECURE Act increased the Form 5500 penalty to $250 per day, not to exceed $150,000 for a late-filed form. In addition to the IRS penalty, the [DOL] may assess a civil penalty against a plan administrator in an amount not to exceed $1,100 per day for failure to timely file Form 5500.... Both the IRS and the DOL may waive the late filing penalty if the company can demonstrate that there is reasonable cause for failure to file."

Dickinson Wright

Press Releases

Upcoming Events About Health & Welfare Plans

Mar. 19
Webcast
Free
Expert Q&A: Coronavirus and Employee Health and Wellbeing
Virgin Pulse
Mar. 19
Webcast
COVID-19 and HIPAA, HRA and HSA Workplace Developments: New Challenges and Opportunities for Plan Sponsors and Their Advisers
Worldwide Employee Benefits Network [WEB] - New York Chapter
Mar. 19
Webcast
Free
Is Your Out-Of-Network Savings Solution Out of Date?
Zelis
Mar. 20
Webcast
Free
Preparing Your Workplace to Address Coronavirus
Vedder Price
Mar. 23
Webcast
Free
COVID-19 Updates for Employers: Employee Benefits and Compensation Issues
Ogletree Deakins
Mar. 24
Webcast
Free
Are You Getting Good Data on What is Driving Your Healthcare Costs?
University Conference Services
Mar. 25
Webcast
Free
Tools You Can Use: Prediabetes & Diabetes Management in the Workplace
Midwest Business Group on Health

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2020 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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