Health & Welfare Plans Newsletter

March 30, 2020

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View Coronavirus (COVID-19) News and Resources
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[Official Guidance]

Text of DOL Q&As on FFCRA, Including Clarifications and New Q&As

Questions 1-37 have been revised (see prior version).  Questions 38-59 have been added, including:

  • Assuming I am a covered employer, which of my employees are eligible for paid sick leave and expanded family and medical leave?
  • What do I do if my employer, who I believe to be covered, refuses to provide me paid sick leave?
  • Do I have a right to return to work if I am taking paid sick leave or expanded family and medical leave under the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act?
  • I am a public sector employee. May I take paid sick leave under the Emergency Paid Sick Leave Act?
  • I am a public sector employee. May I take paid family and medical leave under the Emergency Family and Medical Leave Expansion Act?
  • Who is a "health care provider" who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
  • If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

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

[Guidance Overview]

DOL Publishes Third Round of FAQs on Paid Leave Law: Total Leave Entitlement, Return to Work, Help for Small Employers, Excludes Health Care Providers

"In this latest round of FAQs, DOL gave critical guidance that employers need to know, including the following: [1] Employers under 50 employees (which currently are not covered by the FMLA) are exempt from the [paid FMLA leave (FMLA+)] and from one provision of [emergency paid sick live (EPSL)], but not all of the provisions (FAQ #58-59). [2] Employees can take no more than 12 weeks of FMLA, which includes any leave taken under FMLA+ (FAQ #44). BUT two Weeks of EPSL could be used in addition to the 12 weeks of FMLA+ (FAQ #45). [3] Health Care Providers and Emergency Responders (and pretty much anyone who works with them) are excluded from protection under the EPSL and FMLA+ (FAQ #56-57). [4] Small Employers (24 or fewer Employees) Get Some Relief When it Comes to Restoration (FAQ #43 and 58-59)."

FMLA Insights

[Guidance Overview]

DOL Issues Third Batch of FFCRA Q&As and Revises Prior Guidance

New Q&As (#38-59) address: [1] Small business (fewer than 50 employees) exemption for school closures / childcare clarified.... [2] Broad definition of health care provider & emergency responder for employee exception.... [3] Health care provider who can certify need for leave unchanged.... [4] Total FMLA leave a "hard 12' but total FFCRA leave could be 14.... [5] State or local leave in addition to EPSL and FMLA+.... [6] 'Full-time" more clearly defined.... [7] Job restoration rights expand & contract.... [8] Definition of child.... [9] Emergency leave counts toward health coverage eligibility.

Previously issued Q&As (#1-37) revise and clarify: [1] Business size requires a 'live' calculation.... [2] Eligibility of public employees for FFCRA.... [3] Regular rate.... [4] Documentation of qualifying need for FFCRA leave.... [5] Topping up & tax credits.

Littler

[Guidance Overview]

Editor's Pick DOL Publishes Second and Third Round of FAQs on FFCRA, Answers Burning Employer Questions

"[We] now know that: [1] You can and should require employees to submit appropriate documentation to verify the need for EPSL and EFMLA leave; [2] If you agree to it, teleworking employees can take intermittent leave in increments of less than a day for any of the EPSL or EFMLA qualifying reasons; ... [3] Employees on furlough or temporary layoff are not eligible for EPSL or EFMLA leave regardless of whether the furlough or temporary layoff occurred before or after April 1, 2020; [4] Employees are not entitled to supplement EPSL or EFMLA pay with preexisting PTO or vacation unless you agree, and if you do agree, you will not receive a tax credit for the supplemental amounts; ... [5] You make the decision about the small business exemption on a case-by-case basis and defend it later."

Bradley

[Guidance Overview]

DOL's FAQs Provide More Details About Small Employer Exception Under FFCRA

"Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL). As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice. Therefore, to the extent employers rely upon these, before the DOL issues official regulations, they should check to make sure they are reviewing the current version and print a copy of the DOL's website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes."

Jackson Lewis P.C.

[Guidance Overview]

FFCRA Updates: DOL Issues Guidance and Congress Passes CARES Act with Amendments

"Some issues remain unanswered by the DOL's limited guidance. Employers are wondering how to treat spouses employed by the same employer -- are they entitled to one leave entitlement or two? Another common question is whether the FFCRA creates a new FMLA entitlement, or are employees entitled only to the balance of their pre-existing 12-week entitlement under the employer's leave year rules? What happens to eligibility for FMLA-Public Health Emergency Leave when the school year ends (or on school holidays, like Memorial Day)?"

Ballard Spahr LLP

[Guidance Overview]

CARES Act Provisions for Health and Welfare Plans: Implications for Employers

"Employers need to amend their health plans to provide COVID-19 testing with no cost-sharing and must communicate the change to employees through a Summary of Material Modifications (SMM) within 60 days. Because this provision went into immediate effect with the enactment of FFCRA, the deadline for distributing the SMM to employees is May 17, 2020."

Warner Norcross & Judd LLP

[Guidance Overview]

COVID-19 Guidance and Legislation for Employer-Sponsored Group Health Plans

"The [CARES Act] specifically addresses items relating to testing, vaccines, health savings account (HSA) issues, and HIPAA protected health information.... [T]he Act [repeals] the requirement that over-the-counter medical and health items must be prescribed by a physician to be reimbursable under a health plan. This provision applies to both health flexible spending accounts (FSAs) and HSAs."

Eversheds Sutherland

[Guidance Overview]

CARES Act Boosts Telehealth, Makes Other Health, Paid Leave Changes

"The CARES Act [1] allows HDHP participants with HSAs to receive telemedicine free of cost sharing for plan years beginning on or before Dec. 31, 2021.... [2] eliminates the ACA's ban on pretax reimbursement of the costs for OTC drugs not prescribed by a physician.... [3] set[s] standards for determining reimbursement rates for COVID-19 testing and related items and services.... [4] requires group health plans and health insurance issuers to provide no-cost coverage for 'qualifying coronavirus preventive services,' including vaccines."

Mercer

[Guidance Overview]

CARES Act Clarifies Telehealth Coverage for High Deductible Health Plans

"All telehealth visits may be covered prior to the HDHP deductible.... The CARES Act 'safe harbor' is effective through December 31, 2021 (for calendar year plans).... Periods after December 31, 2021 would revert to prior law (unless the safe harbor is extended).... 'Telehealth and Other Remote Care' is not defined."

Kilpatrick Townsend

[Guidance Overview]

Editor's Pick COVID-19 Triggers New State and Local Paid Leave Benefits, Guidance

"[S]ome state and local authorities have begun to implement new paid leave requirements. Other jurisdictions are modifying existing leave laws or benefit programs ... This [article] provides brief summaries of new state and local paid leave benefits, as well as guidance addressing how current paid leave benefits apply during the COVID-19 pandemic."

Mercer

[Guidance Overview]

New Jersey Expands Earned Sick Leave and State Benefits

"On March 25, 2020, Gov. Phil Murphy signed a bill that expands the scope of two existing New Jersey employment laws -- Earned Sick Leave (ESL), the Family Leave Act (FLA) -- as well as Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI). These expansions seek to make benefits available for those impacted by the coronavirus[.]"

Fox Rothschild LLP

[Guidance Overview]

New York State to Provide Paid Sick Leave, Other COVID-19 Protections for Workers

"[The new law] mandates that New York employers offer paid sick leave and job protections for workers quarantined as a result of the coronavirus outbreak.... Telecommuting employees without symptoms ... Job-protected leave & anti-retaliation measure ... Integration with local sick leave laws ... Coexistence with newly enacted federal law: ... Separate provisions for employees who recently returned from non-business travel."

Mintz

[Guidance Overview]

Los Angeles Supplemental Paid Sick Leave Ordinance Allows Up to 80 Hours of COVID-19 Paid Sick Leave

"The L.A. City Council just passed a COVID-19 Supplemental Paid Sick Leave law which provides up to 80 hours of supplemental paid sick leave to employees who work within the City of Los Angeles. This ordinance brought under an 'urgency clause' is unique in that it goes into effect immediately upon publication. It will remain in effect until December 31, 2020 unless the Los Angeles City Council decides to extend it. Notably, employees cannot waive their supplemental paid sick leave protections unless they are covered by a collective bargaining agreement that is bilaterally modified."

Fisher Phillips

[Guidance Overview]

City of San Francisco Rolls Out Paid Sick Leave Program

"The program is available to all San Francisco employers with full-time or part-time employees who work in San Francisco. It does not apply to remote employees. The City will reimburse employers $15.59 per hour (San Francisco's minimum wage) for up to 40 hours of sick leave (maximum of $623 per employee) after all other sources of sick leave are exhausted, including what is offered by the employer and any state or federal programs or policies."

Constangy, Brooks, Smith & Prophete LLP

[Guidance Overview]

Student Loan Relief Incentive Provided by CARES Act

"[E]mployers can now provide a student loan repayment benefit of $5,250 to employees tax-free for 2020 through an education assistance program.... [T]he relief is limited and for many employers it may not be feasible to incur additional benefit costs this year. Not only is this new benefit temporary, but to offer this benefit, the employer must have a formal education assistance program."

Graydon

Rx Management: A Pharmacist's Perspective on COVID-19 and Prescription Drug Plans

"Numerous PBMs and health plans have already implemented procedures to allow for early, or emergency refills of prescription drugs. Mail order pharmacies are also on high alert to ensure medications are delivered safely, efficiently and without delay to their members."

CBIZ

Planning and Implementing a Temporary Layoff in the Age of COVID-19

"[E]mployers may want to keep employees who are placed on unpaid leave or who have a reduction in hours on the group health plan as active employees, and the employer should consider whether to subsidize the coverage.... [S]ome insurers and stop-loss providers are not allowing employees on unpaid leaves to stay on the group health plan, because they are not 'actively employed.' Accordingly, some employers have temporarily laid off employees (i.e., terminated the employees) to avoid potential penalties under the ACA."

The Wagner Law Group

[Opinion]

Accidental Death Ruling Highlights Flaw in ERISA Deference

"The Arruda case exposes an even greater problem that few ... are aware of: Life, health and disability benefits are too important to leave the decisions about who receives such benefits in the hands of self -interested parties whose determinations are largely immune from judicial review. It is well past time for a serious discussion of the continued viability of the arbitrary and capricious standard. A widow lost life insurance indemnity in the Arruda case. Next time, a denial of critical health benefits will result in an unnecessary death." [Arruda v. Zurich American Ins. Co., No. 19-1247 (1st Cir. Feb. 24, 2020)]

DeBofsky Sherman Casciari Reynolds P.C.

Benefits in General

[Guidance Overview]

Editor's Pick Impact of the CARES Act on Employee Benefit Plans

"The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was enacted on March 27, 2020 and contains many provisions that affect employee benefit plans. The chart [in this article] summarizes these features and provides some preliminary comments regarding how they will affect employers."

Vorys

[Guidance Overview]

Employee Benefits-Related Provisions in the CARES Act

"The minimum funding contribution that was due for calendar year 2020 will now be due on January 1, 2021, but ... the amount of such minimum required contribution must be increased by the interest accruing between the original due date of the contribution and the actual payment date  ... The CARES Act requires group health plans and health insurance issuers to cover without cost sharing any qualifying coronavirus preventive service."

Jackson Walker

[Guidance Overview]

Employee Benefits Provisions of the CARES Act

"Key employee benefit plan-related provisions of the [CARES Act] include: [1] Temporary changes for retirement plans: including waiver of 10% penalty for early withdrawals and increase in loan limits for individuals affected by COVID-19; waiver of required minimum distributions in 2020; and extension of the contribution deadline for defined benefit plans. [2] Changes for group health plans: including flexible spending account plan coverage of over-the-counter medications; clarifications regarding high-deductible health plan (HDHP) deductibles and telehealth services; and coverage mandates for diagnostic testing and preventive services for COVID-19-related conditions. [3] Employer contributions of up to $5,250 toward repayment of an employee's student loan (for higher education) tax-free to the employee."

McCarter & English

Press Releases

Upcoming Events About Health & Welfare Plans

Mar. 31
Webcast
Intermittent FMLA Leave: Curbing Abuse
Business Watch Network
Mar. 31
Webcast
Free
What Employers Need to Know About the Families First Coronavirus Response Act (FFCRA)
Davis Wright Tremaine
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 Q&As: Families First Coronavirus Response 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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