Health & Welfare Plans Newsletter

April 6, 2020

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Family First Coronavirus Response Act (FFCRA): Paid Sick Leave and Expanded FMLA
RECORDED
Sherman & Howard

The Families First Coronavirus Response Act (FFCRA)
RECORDED
Wage and hour Division [WHD], U.S. Department of Labor [DOL]

Trends and Updates in ERISA: Critical Issues and Best Practices in Light of Recent Cases
April 7, 2020 WEBCAST
Knowledge Group

COVID-19 Stimulus Package - What Might Be the Impact?
April 9, 2020 WEBCAST
The Segal Group

Voluntary Fiduciary Correction Program
April 21, 2020 WEBCAST
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

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

[Official Guidance]

Text of Updated DOL FFCRA Questions and Answers

Two questions have been updated to provide additional detail:

  1. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?
  2. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?

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

[Sponsored]

2020 Onsite Employee Health Clinics Forum (June 25 - 26, 2020; Chicago, IL)

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[Guidance Overview]

DOL Publishes Fourth Round of FAQs on Paid Leave Law

"In its latest round, DOL reiterated much of what it pronounced in EPSL and FMLA+ regulations issued earlier last week. Notably, the DOL again touched upon shelter-in-place orders and their impact on EPSL and FMLA+, further explained various reasons for EPSL, and fine-tuned some earlier answers."

FMLA Insights

[Guidance Overview]

FFCRA Documentation and Record Keeping: What Employers Need to Know

"Somewhat surprisingly, the Regulations do not mention specific documentation for certain types of leave available under FFCRA, such as a copy of the doctor's order or advice to quarantine or isolate. Any records that are required must be retained by the employer for a period of four years."

Ice Miller LLP

[Guidance Overview]

DOL Issues Temporary Regs on the FFCRA

"A significant change from the previous DOL guidance is the rule's clarification that employees may qualify for paid leave due to a stay-at-home or other executive order, but only if two conditions are met: [1] the employee would have been able to perform work that is otherwise allowed or permitted by the employer; and [2] the employer has work for the employee."

Stinson

[Guidance Overview]

DOL Regs Answer Questions About Paid Sick Leave and Emergency Family and Medical Leave Under the FFCRA

"Who is a covered employer for purposes of emergency paid sick leave and expanded family and medical leave under the FFCRA? ... Which employees should be counted to determine if an employer meets the 500 employee threshold? Do furloughed employees count? ... Are separate but related entities to be combined to measure whether the 500-employee threshold applies? ... How do small businesses (i.e., employers with less than 50 employees) claim an exemption[?]"

Jackson Walker

[Guidance Overview]

DOL Issues Regs to Help Implement the FFCRA

"[K]ey takeaways [discussed in this article]: [1] Employers with fewer than 50 employees can deny FFCRA leave if the employer determines that certain conditions are met; [2] Paid sick leave under the EPSLA is not available where the employer does not have work for the employee ... [3] An employer can require an employee to use leave available under a separate employer policy ... concurrently with paid leave under the EFMLEA; [4] Intermittent leave under the FFCRA is available only if the employee and employer agree ... [5] Employers and employees must comply with specific notice and documentation requirements relating to FFCRA leave[.]"

Duane Morris LLP

[Guidance Overview]

DOL Releases FFCRA Regs and Even More Informal Guidance: What Employers Need to Know

"An employee working at their normal worksite may agree with the employer to utilize EPSLA leave intermittently to care for a child whose school or place of care is closed or whose child care provider is unavailable.... [A] school or place of care is 'closed' for purposes of EPSLA and EFMLEA leave even if instruction is being provided online.... [E]mployees on a voluntary leave of absence may end their leave of absence and begin taking EPSLA or EFMLEA leave if a qualifying reason prevents them from being able to work (or telework). However, employees may not take EPSLA or EFMLEA leave if they were on a mandatory leave of absence."

Proskauer

[Guidance Overview]

IRS Guidance on FFCRA Sheds Light on Tax Credits and Leave Requirements

"[IRS] published 'Basic FAQs' regarding these tax credits, which include information about how employers can claim the credits on their tax returns and obtain advances on refunds to cover the cost. The guidance also answers some important questions about how employers should interpret and document an employee's entitlement to leave under the FFCRA."

Franczek P.C.

[Guidance Overview]

Health and Welfare Provisions in the CARES Act

"This article discusses: [1] the health plan provisions in the CARES Act, [2] possible plan amendments for those provisions, [3] certain other interesting health and welfare plan provisions in the CARES Act, and [4] some other potential legal updates that are not in the CARES Act, but that may appear in later legislation."

Trucker Huss

[Guidance Overview]

COVID-19 Related Employee Benefits Issues for California Governmental Employers

"[1] Must employers provide paid leave to employees who are absent from work due to the COVID-19 emergency? ... [2] 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? ... [3] Does the [CARES] Act provide any tax relief for governmental employers? ... [4] Has CalPERS issued any guidance for contracting agencies about reporting employee data and contributions to CalPERS during the COVID-19 emergency, given the impact of COVID-19 closures to schools and public agencies?"

Hanson Bridgett LLP

[Guidance Overview]

Comparing Paid Sick Leave Under U.S. and New York State Coronavirus Response Laws

"Under both the federal and state laws, employees are only eligible for paid sick leave when they are scheduled to work but are unable to work (either on site or remotely via telework) for a statutorily specified reason.... Both the federal and state laws protect employees who take sick leave pursuant to the laws from retaliation or discrimination. [A chart] summarizes key differences between the federal and New York paid sick leave laws[.]"

Bryan Cave Leighton Paisner LLP

[Guidance Overview]

City of Los Angeles Imposes New Paid Sick Leave Obligations on Employers with 500+ U.S. Employees

"The Los Angeles City Council adopted an ordinance requiring employers with 500 or more employees nationally to provide up to 80 hours of supplemental paid sick leave in some instances. Designed to supplement the federal [FFCRA] ... the City's ordinance broadens the number of employers now required to provide paid COVID-19 related sick leave to certain employees."

Hunton & Williams LLP

[Guidance Overview]

Editor's Pick COVID-19 and the Pros and Cons of Paid Leave Donations and Leave-Sharing Policies in California

"In some workplaces, generous co-workers are willing to donate their paid time off to the sick employee, and employers are exploring ways to implement paid-time-off donation or leave-sharing policies. As with everything in California, paid-time-off donation and leave-sharing policies present challenges and, if not implemented correctly, could come back to haunt the employer and the employees."

Ogletree Deakins

[Guidance Overview]

Michigan Governor Expands COVID-19 Paid Medical Leave Rights and Anti-Retaliation Protections

"[Under Executive Order (EO) 2020-36], employers must treat employees particularly at risk of infecting others with COVID-19 as if they were taking medical leave under the Michigan Paid Medical Leave Act even if they do not have paid leave available to use. An employee in one [certain] categories is entitled to unpaid leave beyond the limits established by the Michigan Paid Medical Leave Act until [specified] time periods have lapsed. However, employers may debit the time off from the employee’s accrued leave banks."

Ogletree Deakins

HIPAA Special Enrollment Rights (PDF)

"Unlike the mid-year election change rules under Section 125 of the Internal Revenue Code, HIPAA's ... special enrollment rights are mandated.... [E]mployers that sponsor applicable health plans must ensure that these special enrollment rights are provided and properly administered."

Cowden Associates, Inc.

ACA Round-Up: Latest on California v. Texas, Risk Adjustment, and More

"The Court will hear an appeal from a coalition of 21 Democratic attorneys general (led by California) and a conditional cross-petition filed by a coalition of 18 Republican attorneys general (led by Texas) ... during the Supreme Court's next term, which begins in October 2020, with a decision issued in 2021.... The notice of benefit and payment parameters for the 2021 plan year has not yet been finalized and is on track to be finalized later than any other year's payment rule."

Katie Keith, in Health Affairs

Facilitating Low-Income Families' Use of Emergency Paid Family Leave: Considerations for Human Services Agencies in Supporting Workers and Their Employers

"This brief suggests lessons for facilitating the use of emergency paid family leave by lower-income families ... It offers considerations and possible next steps for human services organizations, early childhood education programs, schools, and others who work with lower income families and their employers and can assist them in learning about and using the new emergency family leave program, facilitating its implementation for those in greatest need."

Assistant Secretary for Planning and Evaluation [ASPE], U.S. Department of Health and Human Services [HHS]

Benefits in General

D.C. Circuit Holds That Participant Who Signed Release Could Not Assert ERISA Fiduciary Breach Claims on Behalf of Her Retirement Plan

"While many employers incorporate 'one-size-fits-all' release language into their agreements, when dealing with prospective ERISA claims, it is important to carefully review any applicable release language to ensure that it is both enforceable and sufficiently broad to cover ERISA fiduciary breach claims and other statutory claims.... [This article provides a list of items] employers should consider when evaluating their release agreements[.]" [Stanley v. George Washington Univ., No. 19-7079 (D.C. Cir. March 24, 2020)]

Mayer Brown

[Opinion]

U.S. Chamber of Commerce Letter to Treasury, IRS, DOL, and PBGC on Benefit Plan Reporting Requirements

"Because of the current financial and staffing constraints, we request, among other items, that [1] the Agencies delay employee benefit plan reporting and disclosure to the full extent allowed by law; [2] provide for good faith compliance; and [3] allow employers additional time to comply with specific notice requirements."

U.S. Chamber of Commerce

Press Releases

BCM Wealth Management Certified for Fiduciary Excellence
Centre for Fiduciary Excellence [CEFEX]

Most Popular Items in the Previous Issue

Text of Additional DOL Q&As on the Families First Coronavirus Response Act (FFCRA)
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

COVID-19 Special Enrollment in Group Health Plans
Wilkins Finston Friedman Law Group LLP

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David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@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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