[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
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[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
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[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
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[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
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[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
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[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
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[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.
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[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.
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[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
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[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
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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
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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
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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
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[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
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Benefits in General
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[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
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[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
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