Health & Welfare Plans Newsletter

April 2, 2020

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Webcasts, Conferences

Benefits Issues Arising from the COVID-19 Crisis
April 3, 2020 WEBCAST
Baker Botts

Employee Benefits Hot Topics: COVID-19, the SECURE Act, CARES Act and More
April 14, 2020 WEBCAST
Bar Association of Metropolitan St. Louis [BAMSL]

Annual Education Conference
May 7, 2020 in GA
Southeast Benefits Education Network [SBEN]

ERISA Basics Series 1: ERISA Basics Concepts - Statutory Overview
June 15, 2020 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

ERISA Basics Series 4: Benefit Claims: Administrative Procedures & Litigation Overview
June 16, 2020 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

ERISA Basics Series 5: Remedies
June 17, 2020 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

ERISA Basics Series 6: ERISA Ethical Issues and Concerns
June 17, 2020 WEBCAST
American Bar Association Joint Committee on Employee Benefits [JCEB]

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View Coronavirus (COVID-19) News and Resources
View Coronavirus (COVID-19) Webcasts

[Official Guidance]

Text of DOL Updated Q&As on Families First Coronavirus Response Act (FFCRA)

Answers to questions 7, 31, 32 and 33 have been revised. See prior version.

  • Q7: As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?
  • Q31: As an employee, may I use my employer"s preexisting leave entitlements and my FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?
  • Q32: If I am an employer, may I use the paid sick leave mandated under the EPSLA to satisfy paid leave entitlements that an employee may have under my paid leave policy?
  • Q33: If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?

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

[Official Guidance]

Editor's Pick Text of HHS OCR Notification of Enforcement Discretion for Business Associates and HIPAA (PDF)

"Current regulations allow a HIPAA business associate to use and disclose protected health information for public health and health oversight purposes only if expressly permitted by its business associate agreement with a HIPAA covered entity.... [E]ffective immediately, the HHS Office for Civil Rights (OCR) will exercise its enforcement discretion and will not impose potential penalties for violations of certain provisions of the HIPAA Privacy Rule against covered health care providers or their business associates for uses and disclosures of protected health information by business associates for public health and health oversight activities during the COVID-19 nationwide public health emergency."

U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

Health Plan Continuation for Those Taking EPSLA or EFMLEA Protected Leave

"DOL temporary regulations ... on the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA) require employers to continue an employee's group health plan coverage during the protected leave.... DOL confirmed that this continuation of health plan coverage applies to all employers subject to the EPSLA and EFMLEA and not just to those that are normally subject to the FMLA (i.e., this applies to all employers with fewer than 500 employees and not just those with 50 or more employees)."

Graydon

[Guidance Overview]

FFCRA and CARES Act Paid Leave Rules and Healthcare Mandates: Action Items for Employers

"This alert summarizes what we know today about new paid leave requirements, as well as healthcare plan mandates and related opportunities for employers to assist their employees. Each section ... includes an 'action items' list[.]"

Lockton

[Guidance Overview]

New Coronavirus Legislation and Its Impact on Health Plans

"The new IRS FAQs [on FFCRA tax credits] are very helpful, but they leave some questions unanswered. For example, can an employer claim a QHPE with respect to its contributions to a multiemployer plan or an association health plan? ... [C]an the administrative fees of third party administrators and pharmacy benefit managers be included? What about stop-loss premiums? ... [M]ust the employer try to actually track which days the employee performed services? ... The CARES Act sets a rate which the insurer or plan must pay, ... These provisions are rather ambiguous."

Quarles & Brady LLP

[Guidance Overview]

FFCRA Updated to Include CARES Act Provisions

"Paid sick leave and paid family and medical leave is available to eligible employees on April 1, 2020. Any wages required to be paid under the Sick Leave Act and the FMLA Expansion Act will not be considered wages for purposes of the employer's portion of the social security tax.... Guidance already issued from the [DOL] includes a notice that must be posted in a conspicuous location (e.g., with other labor law posters)."

The Wagner Law Group

[Guidance Overview]

New Jersey Expands Family Leave for COVID-19-Related Reasons

"In addition to the existing bases for sick leave, employees may now use earned sick leave if unable to work because of any of the following: [1] Closure of the employee's workplace, or the school or daycare of the employee's child, because of COVID-19. [2] A determination by a health care provider or public health authority that the employee's presence in the community, or the presence of a family member of the employee, would jeopardize the health of others. [3] The employee is undergoing isolation or quarantine, or caring for a family member in quarantine, due to suspected exposure to COVID-19."

Thompson Hine

[Guidance Overview]

City of Los Angeles Enacts New Sick Pay Ordinance

"The Ordinance seeks to ensure individuals who work for employers with more than 500 employees or more receive two weeks of paid COVID-19-related leave, after the [FFCRA] extended those protections only to employers with less than 500 employees."

Thompson Coburn LLP

[Guidance Overview]

COVID-19: District of Columbia Expands FMLA to Include 'Declaration of Emergency' Leave

"On March 17, 2020, the District of Columbia amended the D.C. Family and Medical Leave Act to create a new category of protected leave, called 'Declaration of Emergency Leave.' This amendment affects every employer with at least one employee who works in D.C.... The D.C. FMLA generally provides greater eligibility and leave rights than the FMLA."

McGuireWoods

[Guidance Overview]

COVID-19 Triggers New State and Local Paid Leave Benefits, Guidance

Article includes summary of new emergency paid leave benefits in California, Los Angeles, San Francisco, Colorado, New Jersey, New York, Rhode Island, and Seattle; along with summary of guidance as to effect of COVID-19 on existing paid leave benefits in Connecticut, Massachusetts, Minnesota, Nevada, Oregon, Philadelphia, Vermont, and Washington.

Mercer

[Guidance Overview]

Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act

"[T]he question of counting student workers for purposes of the 500-employee threshold set by the [FFCRA] is somewhat unsettled.... [S]tudent workers who are telecommuting or working remotely are employees and may be counted. Less clear is the treatment of students who are off-campus and not capable of remote work.... Many students who did not previously meet the definition of eligible employee because they failed to meet the length of service requirements under the standard FMLA may meet this new definition."

Bond, Schoeneck & King

[Guidance Overview]

CARES Act: Health and Welfare Plan Issues

"[C]learly employers can waive all deductibles for traditional telehealth visits, but it is unclear whether it applies to providers outside of the telehealth plan and network who have decided to begin offering remote care services in response to the COVID-19 pandemic. Arguably, it does. Despite this new HDHP flexibility, it is important to note that the CARES Act, like IRS Notice 2020-15, permits but does not require employers to waive deductibles beyond what is required under FFCRA (i.e., COVID-19 testing and items and services that result in COVID-19 testing)."

Snell & Wilmer

COVID-19: Answers to Recent Questions from Employer Clients

"How should an employer with multiple affiliates determine if it meets the '500 employee' threshold for coverage under the Emergency Family and Medical Leave Expansion Act (FMLEA) and the Emergency Paid Sick Leave Act (EPSLA)? ... Is leave under the EPSLA in addition to leave available under applicable state law?  ... Are employees who are temporarily laid off (i.e. 'furloughed') entitled to paid or unpaid leave under the FFCRA?"

Weil Gotshal & Manges LLP

Featured Q&As from Recent COVID-19 Town Halls

"Here are some of the more novel and pressing questions asked during ERISAfire's weekly Tuesday COVID-19 town hall meetings. [This page] is updated weekly."

ERISAfire

Editor's Pick FFCRA Quick-Reference Flow Charts (PDF)

Charts include Emergency FMLA, Emergency Paid Sick Leave, and application of the FFCRA during 2020 to various categories of employees (including Earned Sick Leave and Unemployment Insurance).

VCG Benefits and HR Advisors

Health Plans: What Does New Coronavirus Legislation Mean for Fiduciary Liability Coverage?

"Defense of benefit disputes that might arise from this new legislation are a key protection under your plan's fiduciary liability insurance policy. Several provisions are worth reviewing in advance. [1] Is the coronavirus response legislation covered under your fiduciary policy? ... [2] Coverage for participant benefit or provider claims ... [3] HIPAA compliance."

Euclid Specialty Managers

[Opinion]

Amicus Brief of American Benefits Council in ERISA Preemption Challenge to Arkansas PBM Statute

"The Arkansas statute at issue in this case, Act 900, frustrates Congress's aims by requiring administrators to process claims for prescription-drug benefits under different substantive and procedural rules -- and pay higher amounts -- in Arkansas than in other states, where other members of the same plans reside.... As the court of appeals recognized, these provisions 'interfer[e] with national uniform plan administration' of ERISA plans, and are therefore preempted by ERISA." [Rutledge v. Pharmaceutical Care Mgmt. Assoc., Nos. 17-1609 and 17-1629 (8th Cir. June 8, 2018; cert. pet. granted Jan. 13, 2020)]

American Benefits Council

Benefits in General

[Guidance Overview]

Employee Benefit and Executive Compensation Changes Made by the CARES Act

"What COVID-19 testing and treatment is our company's employer-sponsored group health plan required to cover? ... Can [HDHP] cover costs associated with telehealth without requiring the participant to pay a deductible? ... Does the CARES Act contain any provisions which may be applicable to employer-sponsored group health plans, but are not related to COVID-19? ... My employees are no longer able to make loan repayments on their student loans -- is there anything I can do as an employer to help them? ... Is my [retirement] plan obligated to make required minimum distributions in 2020? ... Does the CARES Act provide any relief for sponsors of defined benefit plans?"

Haynes and Boone, LLP

[Guidance Overview]

Editor's Pick CARES Act Brings Compensation, Benefits, and Payroll Tax Changes

"[This article provides] a summary of the retirement plan, health and welfare, payroll tax and fringe benefit, and executive compensation provisions of the CARES Act, along with ... comments and considerations for businesses evaluating the changes brought about by the new law."

Morgan Lewis

Press Releases

Most Popular Items in the Previous Issue

Text of DOL Temporary Regs: Paid Leave Under the Families First Coronavirus Response Act
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

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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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