Health & Welfare Plans Newsletter

March 27, 2020

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[Official Guidance]

Text of DOL Q&As: Families First Coronavirus Response Act

37 Q&As address implementation of Paid Sick Leave and Expanded Family and Medical Leave under FFCRA.  Questions include:

  • As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?
  • If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
  • What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
  • What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?
  • When am I able to telework under the FFCRA?
  • If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?
  • May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?
  • If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?   
  • If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
  • If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?
  • I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?
  • Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?

Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

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[Guidance Overview]

DOL Publishes Second Round of FAQs on Paid Leave Law

"Required documentation ... Telework still a bit murky  ... Increments of leave  ... Intermittent leave is limited  ... Shelter in place and business closure orders do not likely support the need for leave  ... Paid leave not available for furloughs and temporary layoffs ... 'Topping off' paid leave is prohibited unless both sides agree ... A word about group health benefits ... There still is much to be addressed by DOL."

FMLA Insights

[Guidance Overview]

DOL Releases FFCRA Employee Rights Notice

"[DOL FAB 2020-1] suggests that employers have until April 17, 2020, to comply fully with the FFCRA provided they are making reasonable, good faith efforts to do so, e.g., making necessary payroll modifications, completing calculations for coordinating leave accruals with FFCRA leave entitlements, etc. However, the Bulletin strongly implies that employers will have to remedy and make employees whole for any noncompliance between April 1 and April 17, 2020. After April 17, 2020, the DOL will begin fully enforcing violations of the FFCRA."

Liebert Cassidy Whitmore

[Guidance Overview]

DOL Provides FFCRA Model Notice and Issues Paid Leave Guidance for Employers

"[T]he DOL will look to the 'integrated employer test' to determine whether two or more entities will be treated as a single employer for purposes of determining covered employer status under the EFMLEA.... The guidance confirms that paid leave an employer provided prior to April 1, 2020 for reasons covered under the FFCRA will not count towards the new paid leave requirements."

Jackson Walker

[Guidance Overview]

DOL Issues FFCRA Guidance and Poster with a New April 1 Effective Date

"The paid leave provisions 'apply to leave taken between April 1, 2020 and December 31, 2020' and this leave is not retroactive. This may indicate that an employer who grants this leave before April 1 may not be able to take advantage of the tax credit.... Little guidance is provided for the small business (under 50 employees) exception. Instead, DOL instructs these small employers to maintain records as to why they cannot meet the FFCRA's requirements and look for additional regulations to come."

Bradley

[Guidance Overview]

Where to 'Hang a Poster' When Employees Work from Home (PDF)

"[A] poster in the break room cannot effectively inform employees of their rights and obligations. In light of this concern, the DOL has provided that an employer may satisfy the posting requirement by emailing or directly mailing the poster to its employees or by posting the notice on an employee information internal or external website."

Sherman & Howard

[Guidance Overview]

DOL Issues Initial Guidance on the Families First Coronavirus Response Act

"[T]here are still open questions: [1] Whether local, state or federal 'stay at home' or 'business closure' orders could, under any circumstances, be considered 'quarantine' or 'isolation' orders allowing an employee to qualify for benefits under the paid sick leave law in any circumstance ... [2] Application of the integrated employer test to the paid sick leave provisions; [3] Whether FFCRA leave may be used intermittently; and [4] How employers with fewer than 50 employees will effectively demonstrate that compliance will jeopardize the viability of their business. (Note: The [DOL] has already indicated that it will be issuing criteria on this point.)"

Duane Morris LLP

[Guidance Overview]

COVID-19: One Page Q&A on the Expanded FMLA

"How much does an employer need to pay an eligible employee under the leave? ... How does an employer determine an employee's normal hours of work if the employee's schedule varies? ... How are employers supposed to be able to afford these payments?"

Health Care Attorneys P.C.

[Guidance Overview]

COVID-19: One Page Q&A on the Emergency Paid Sick Leave Act

"How much Sick Leave is an employer responsible to pay an employee? ... How much does an employer need to pay an eligible employee under the Sick Leave provision? ... How are employers supposed to be able to afford these payments?"

Health Care Attorneys P.C.

[Guidance Overview]

New Jersey Amends Family Leave and Benefits Laws Amid Coronavirus Concerns

"Employees may now use their paid sick leave in expanded circumstances, including: [1] the closure of a school or workplace due to a state of emergency; [2] if the presence of the employee or their family member would jeopardize the health of others; or [3] if the employee must be isolated or quarantined or care for a family member in quarantine because of exposure or suspected exposure to a communicable disease."

ReedSmith

[Guidance Overview]

New York State Issues FAQs Regarding the New COVID-19 Paid Sick Leave Law

"According to the FAQs, the number of paid sick days required by the law is calendar days -- not work days. So, the five days of paid sick leave that an employer with 11-99 employees is required to provide is not a full work week of paid sick leave.... Similarly, the 14 days of paid sick leave that a public employer or a private employer with 100 or more employees is required to provide is essentially two calendar weeks of paid sick leave.... The FAQs also provide some guidance regarding the rate at which the sick leave must be paid under the law."

Bond, Schoeneck & King

COVID-19: Benefits FAQs for Health and Welfare Plans

"[1] Can an employer provide a 'premium holiday?' ... [2] Are there ways to further extend coverage for employees who are terminated or furloughed? ... [3] Does COBRA apply to employees who are furloughed, and when? ... [4] We use the look-back method to determine full-time employees for [ACA] employer mandate purposes. What should we be aware of if we furlough employees or reduce their hours? ... [5] Might the furloughed employee be eligible for short-term disability? what factors would be important to review to make that judgment?"

Davis Wright Tremaine LLP

Have You Considered Extending the Run-Out Period for Your Dependent Care FSA in Light of COVID-19?

"Most DC FSA plans run on a calendar year and a very common run-out period is either 90 days or until March 31st. In other words, many run-our periods for 2019 are expiring this week. Right now, many of the child care facilities are shut down. This may be creating an obstacle for your participants in getting the receipts to submit for substantiation. To provide relief to employees, a plan sponsor could change this run-out period temporarily."

Graydon

Providing Tax-Free Benefits During the COVID-19 Emergency

"Code Section 139 provides that individuals may exclude 'qualified disaster relief payments' from gross income.... So, what do these expenses include?"

Poyner Spruill LLP

Providing Disaster Relief Payments or Charitable Assistance to Employees During COVID-19

"Because of specific disaster declarations made by the President, the COVID-19 pandemic is a 'qualified disaster' in Washington, California, New York, Iowa, Louisiana, Texas, Florida, and North Carolina. Thus, employers may make section 139 disaster relief payments to employees located in those states."

Holland & Hart LLP

Upcoming Health Plan Compliance Deadlines and Reminders for Second Quarter 2020

"[R]eporting and disclosure obligations wait on no person (although some are now being deferred), and plan sponsors should be aware of upcoming reporting and disclosure responsibilities."

Lockton

Taking Public Sector Retiree Medical to the Next Level

"Faced with the sobering reality of more than $1 trillion in unfunded retiree healthcare liabilities, public sector employers across the country are seeking a sustainable retiree health benefit solution.... One solution that is just starting to be used is to work with state legislatures and make benefit changes that allow public sector employees to convert unused sick leave into retiree health insurance credits."

Findley

[Opinion]

America Will Dramatically Change the Way It Provides Health Care by 2030

"America will have a much more socialized health care system over the next decade.... The growth of ICHRAs will be akin to the shift we have seen in retirement plans over the past four decades.... Larger and more sophisticated employers with younger or healthier workforces will be able to offer a better benefit platform through referenced-based-pricing (RBP).... The fallout of COVID-19 is likely to be the final surge needed for proponents of universal health care."

ThinkAdvisor

Benefits in General

[Guidance Overview]

How the CARES Act Affects Employee Benefits

"The CARES Act: [1] expands on the types of testing that plans must cover without cost-sharing  ... [2] provides that for plan years beginning on or before December 31, 2021 (i.e., for a calendar plan year, the 2020 and 2021 plan years), HDHPs can provide first-dollar coverage for telehealth or other remote care services ... [4] permanently eliminates the ACA rule that requiring that over-the-counter medicines and drugs (other than insulin) be prescribed to be eligible HSA/FSA/HRA expenses.... [5] The 10% early withdrawal tax will not apply to any 'coronavirus-related distribution' (CRD) up to $100,000 for any year.... [6] For individuals who are eligible for a CRD, the cap on 401(k) plan loans is increased from $50,000 to $100,000, and employees may take up to the full balance of their account within that limit."

ABD Insurance & Financial Services

[Guidance Overview]

How the Stimulus Bill Would Impact Employee Benefit Plans

"The CARES Act provides qualified individuals with a one-year extension to repay qualified retirement plan loans if the due date occurs between the enactment of the CARES Act and December 31, 2020.... For the period between the enactment of the CARES Act and January 1, 2021, employer payments of principal or interest on any qualified education loan of an employee will not be included in the gross income of that employee. These payments may be made to the employee or to a lender."

Ballard Spahr LLP

Temporary Benefit Strategies to Immediately Help Workers: Benefits Guidance in the Time of COVID-19

"Qualified disaster relief payments.... Coronavirus act paid sick and family leave ... Childcare and elder-care stipends ... Commuting assistance benefits ... On-premise meals ... 401(k) plan hardship distributions ... Home office expenses ... Leave donation programs ... Charitable emergency funds ... Health insurance."

Epstein Becker Green

Press Releases

Upcoming Events About Health & Welfare Plans

Mar. 31
Webcast
Intermittent FMLA Leave: Curbing Abuse
Business Watch Network
Mar. 31
Webcast
Free
COVID-19 Town Hall
ERISAfire
Mar. 31
Webcast
Free
Healthcare Litigation Trends to Watch in 2020 and Beyond
Manatt
Apr. 2
Webcast
Impact of Coronavirus on Employee Benefits and the Workplace: What Employers Need to Know
American Law Institute Continuing Legal Education Group [ALI CLE]
Apr. 2
Webcast
Navigating New Federal Paid Leave Laws in the Wake of COVID-19
Clear Law Institute
Apr. 2
Webcast
Free
Benefit Plans and COVID-19 - Legislative and Regulatory Update
Groom Law Group
Apr. 2
Webcast
Health Reimbursement Arrangement Plans Update
Lorman Education Services
Apr. 2
Webcast
Free
Washington update briefing
Mercer
Apr. 2
Webcast
Free
Washington Update Briefing
Mercer
Apr. 2
Webcast
Free
Going Viral: COVID-19's Impact to Employee Benefits Plans
Southeast Benefits Education Network [SBEN]

Most Popular Items in the Previous Issue

Text of DOL Posters and FAQs: Families First Coronavirus Response Act (FFCRA)
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

Text of DOL FAQs: COVID-19 and the Family and Medical Leave Act
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
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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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