Health & Welfare Plans Newsletter

April 3, 2020

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[Official Guidance]

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

Updated Apr. 3, 2020, to add Q&As 60-79 to the prior version:

  1. How do I know if I can receive paid sick leave for a Federal, State, or local quarantine or isolation order related to COVID-19? ...
  2. When am I eligible for paid sick leave to self-quarantine? ...
  3. I am an employee. I become ill with COVID-19 symptoms, decide to quarantine myself for two weeks, and then return to work. I do not seek a medical diagnosis or the advice of a health care provider. Can I get paid for those two weeks under the FFCRA? ...
  4. When am I eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order? ...
  5. Can I take paid sick leave to care for any individual who is subject to a quarantine or isolation order or who has been advised to self-quarantine? ...
  6. When am I eligible for paid sick leave to care for someone who is self-quarantining? ...
  7. May I take paid sick leave or expanded family and medical leave to care for my child who is 18 years old or older? ...
  8. What is a "place of care"? ...
  9. Who is my "child care provider"? ...
  10. Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for my child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons? ...
  11. My child's school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it "closed"? ...
  12. May I take paid sick leave to care for a child other than my child? ...
  13. May I take expanded family and medical leave to care for a child other than my child? ...
  14. When am I eligible for paid sick leave based on a "substantially similar condition" specified by the U.S. Department of Health and Human Services? ...
  15. If I am a staffing company, how do I count internal workers and staffed workers under the FFCRA? ...
  16. As an employer, how much do I pay a seasonal employee with an irregular schedule for each day of paid sick leave or expanded family and medical leave that he or she takes? ...
  17. May I take paid sick leave or expanded family and medical leave if I am receiving workers' compensation or temporary disability benefits through an employer or state-provided plan? ...
  18. May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence? ...
  19. Will DOL begin enforcing FFCRA immediately? ...
  20. Does the non-enforcement position mean businesses do not need to comply with the FFCRA from the effective date of April 1, 2020 through April 17, 2020? ...

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

[Guidance Overview]

DOL Publishes Temporary Regs Interpreting FFCRA

"Among the more surprising provisions in the regulations is the [DOL's] expansive interpretation of what constitutes an 'order of quarantine or isolation' for the purposes of an employee qualifying for the two weeks of sick leave ... This is a marked departure from previous law and triggers a careful (and sometimes complicated) factual analysis ... [It] is not the case that every individual working in a jurisdiction subject to a 'shelter in place' order is automatically entitled to two weeks of sick leave under the EPSLA."

Davis Wright Tremaine LLP

[Guidance Overview]

DOL Temporary Rule Provides Definitive Guidance on Small Business Exemption to FFCRA

"Small employers are not exempt from paying up to 80 hours of full or partial sick leave to an employee who requires it for himself or to care for a covered individual due COVID-19 related reasons. The small business exemption is narrow in scope and relates only to sick leave and expanded FMLA necessitated by lack of child care as a result of COVID-19 reasons."

McAfee & Taft

[Guidance Overview]

Temporary FFCRA Regs Clarify FFCRA Leave Rules

"The regulations also emphasize that employees subject to shelter-in-place orders may not take paid sick leave if they are able to telework, provided that there is work for the employee to do, the employer allows the employee to telework and there are no extenuating circumstances that prevent the employee from performing that work."

Fox Rothschild LLP

[Guidance Overview]

DOL Rolls Out FFCRA Regs as New Leave Requirements Go Into Effect

"[An] employee is only entitled to up to 80 hours of leave under the EPSLA, regardless of the number of employers for whom the employee works between April 1 and December 31, 2020. In other words, if an employee takes a portion of the EPSLA leave while working with one employer and then changes employers, the second employer only needs to provide the remainder of the leave to the employee, not the full 80 hours."

Ice Miller LLP

[Guidance Overview]

DOL Issues Regs Interpreting FFCRA Expanded FMLA and Paid Sick Leave Laws

"The employer does not have to pay for hours that a teleworking employee fails to report unless the employer knew or had reason to know that the employee was working. If an employee is teleworking, of course he or she is not normally entitled to paid leave. However, if there is a disruption to the work in the remote workplace (the DOL uses the example of a power failure) that prevents the employee from working, the employee is entitled to paid leave for that time."

Constangy, Brooks, Smith & Prophete LLP

[Guidance Overview]

DOL Issues Regs Implementing the New Emergency Paid Sick and Paid FMLA Law

"[In] 124 pages of regulations, DOL extensively covers employer coverage, how small businesses may be exempted from the new law, regular rate calculations, intermittent leave, substitution of accrued paid leave with EPSL and FMLA+, employer/employee notice issues, and documents employees must provide to request a leave."

FMLA Insights

[Guidance Overview]

COVID-19 Emergency Paid Leave and Other Leave-Related Benefits

"[1] Must employers continue to provide coverage under their group health plans while employees are on COVID-19 related paid sick leave or paid FMLA leave? ... [2] Can employers allow changes to employee elections under their ... section 125 cafeteria plans to reflect changes in circumstances due to COVID-19? ... [3] Can an employer establish catastrophic leave-sharing or disaster leave-sharing programs to allow employees to assist one another with COVID-19 situations?"

Hanson Bridgett LLP

[Guidance Overview]

IRS Issues Guidance on Required Documentation Necessary to Obtain Tax Credits for FFCRA Paid Sick Leave and Emergency FMLA Leave

"The IRS Guidelines require that an employee must provide written documentation containing the following information before taking PSL or EFML: [1] employee's name; [2] date or dates for which leave is requested; [3] qualifying reason for the leave; and [4] statement that the employee is unable to work (either on-site or via telework) because of the qualified reason for leave. Employees must also provide additional documentation depending on the reason for taking the PSL or EFMLA[.]"

Vorys

[Guidance Overview]

New York Bill Would Require Immediate Relief for Employees Subject to Mandatory or Precautionary Quarantine or Isolation

"The [proposed statute] protects employees by requiring employers to provide additional 'coronavirus-specific' paid sick leave to employees, and expanding the state's disability and paid family leave benefits to cover certain coronavirus-related leave.... [T]he new sick leave requirements purport to provide for a tiered approach for benefits based on the size of the employer."

Nixon Peabody LLP

[Guidance Overview]

The ACA Look-Back Measurement Method and COVID-19

"Federal agencies have not issued any guidance regarding the ACA's employer shared responsibility rules in light of the COVID-19 outbreak. As a result, the general rules for determining employee status apply."

CBIZ

[Guidance Overview]

April's San Francisco HCSO Reporting for 2019 Cancelled

"[A] supplement ... to the Emergency Proclamation [states] that the work required to compile and report the data necessary would require some employers to engage in non-essential travel to their places of business and would place further economic strain on employers. Therefore, the standard April 2020 requirement for employers to report 2019 health care expenditures is waived.... [C]overed employers are still required to make any required health care expenditures to the City Option for the first quarter 2020 by April 30, 2020."

ABD Insurance & Financial Services

Editor's Pick COVID-19 Special Enrollment in Group Health Plans

"[M]any insurers are offering a 30-day special enrollment period (SEP) for their insured and self-funded group health plans.... [This] COVID-19 SEP does not qualify as a HIPAA special enrollment event nor a change in family status event under the section 125 cafeteria plan rules that would permit mid-year enrollment in a self-funded or fully-insured group health plan on a pre-tax basis.... The COVID-19 SEP poses additional issues for self-funded group health plans, especially ones that are subject to ERISA.... The stop loss policy may not cover participants who enroll during a COVID-19 SEP which means the plan sponsor would be fully liable for claims made by such participants."

Wilkins Finston Friedman Law Group LLP

COVID-19 and Health Plan Experience: A Framework for Developing Cost Projections

"Among the many financial consequences of the COVID-19 pandemic on US businesses will be its impact on 2020 self-insured health plan costs.... [R]eviewing multiple future-state scenarios will be essential as the situation evolves both in the macro environment and in your own organization. To update your 2020 claims estimate, you will need to start with your current 2020 estimate and make three adjustments."

Mercer

Federal District Court Provides Mini-Primer on Choice of Law Issues to Determine the Standard of Review

"[M]any states have imposed statutes which affect which standard of review governs ERISA claim decisions. Many policies include a 'choice of law' provision, setting forth which state law will govern the standard of review. But what happens when the policy does not have a 'choice of law' provision? How does the court determine which state law governs the standard of review in ERISA claims?" [Byerly v. Standard Insurance Co., No. 18-592 (E.D. Tex. Mar. 25, 2020)]

Lane Powell PC

DOL Annual Report to Congress on Self-Insured Group Health Plans (PDF)

18 pages. "Approximately 57,800 group health plans filed a Form 5500 for 2017, an increase of more than 3 percent from the number of plans that filed a Form 5500 for 2016. Of plans that filed a 2017 Form 5500, about 23,500 were self-insured and 3,800 mixed self-insurance with insurance (mixed-insured). Self -insured group health plans that filed a Form 5500 covered approximately 34 million participants in 2017 and held assets totaling about $95 billion." [Also released: Appendix A: Abstract of 2017 Form 5500 Annual Reports Reflecting Statistical Year Filings, and Appendix B: Self-Insured Health Benefit Plans 2020, Based on Filings Through Statistical Year 2017.]

U.S. Department of Labor [DOL]

Selected Discussions
on the BenefitsLink Message Boards

FFCRA and Multiemployer Welfare Fund's Rights to a Tax Credit

"I looked at the DOL FAQs pertaining to the Coronavirus and employers obligated to contribute to a multiemployer welfare fund. I note that the FAQs, especially Q&As 35-37, permit the payment of Emergency Family and Medical Leave benefits and Emergency Paid Sick Leave benefits to be provided 'by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.' I can foresee that most funds would want to negotiate the bargaining agreement so that they provide the expanded paid leave benefits from the fund and that the existing paid leave provisions may not be sufficiently broad to apply to these expanded paid leave rights. Assuming that's satisfied, would the employer be precluded from providing such paid leave benefits from its own funds and applying for and retaining the IRS payroll tax credits? Would that be consistent with the employer's bargaining obligations and the collective bargaining agreement? Or would there be an obligation? If it would, would the employer be obligated to either have the fund apply for and retain the tax credits or would the employer be obligated to pay the credits obtained over to the funds?"

BenefitsLink Message Boards

Most Popular Items in the Previous Issue

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