Health & Welfare Plans Newsletter

April 8, 2020

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

IRS Issues FAQs and Form 7200 for Advance Payment of COVID-19 Employer Tax Credits

"The IRS has issued FAQs regarding the tax credits for the sick and family leave and employee retention tax credits which provide guidance on eligibility and instructions for claiming the credits. The guidance sets forth the information employers should collect and retain to substantiate eligibility for the qualified sick and family leave tax credits. The IRS has issued Form 7200 to allow qualifying employers to file in advance to receive the refundable tax credits for qualified sick and family leave and the employee retention tax credit."

Pillsbury Winthrop Shaw Pittman LLP

[Guidance Overview]

IRS and DOL Specify Documentation Required to Support New Paid Leaves and Related Tax Credits

"DOL clarified the documentation an employer can request when an employee seeks to take leave under the emergency paid sick leave and expanded FMLA paid leave provisions.... [T]he IRS has also issued parallel guidance outlining the documentation that is required to support a claim for the payroll tax credit that may reimburse an employer for making the Act's required paid leave payments to employees."

Lathrop GPM

[Guidance Overview]

Payroll Tax Credits Under the FFCRA and the CARES Act: Determining Qualified Health Plan Expenses

"Employers may offset the amount of their anticipated payroll tax credits under the FFCRA and the CARES Act against their deposit of employment taxes (including income tax withholdings) with the IRS. Since many employers are required to make these deposits with the IRS on a semi-weekly basis, employers should start determining their qualified health plan expenses as soon as possible.... The first step is to determine which health plan expenses are eligible for a payroll tax credit. The second step is to allocate these expenses to the appropriate employees."

Miller Johnson

[Guidance Overview]

Editor's Pick Summary of DOL and IRS Guidance Regarding the FFCRA

"An employee may give an employer verbal notice of the need for leave under FFCRA. The employer may require the employee to follow up with a written request.... If the employee never submits the form or the information provided does not support that the leave qualifies for pay or leave under FFCRA, then the leave does not need to be granted under FFCRA."

Lockton

[Guidance Overview]

DOL Issues Final Rule and Additional Guidance on FFCRA Leave and Pay Requirements

"The Final Rule clarifies ... that, while a quarantine or isolation order referred to in FFCRA does include a quarantine, isolation, containment, shelter-in-place, or stay-at-home order issued by any Federal, State, or local government authority, employees impacted by such orders 'may not take Paid Sick Leave where the Employer does not have work for the Employee as a result of the order or other circumstances.' "

Schiff Hardin

[Guidance Overview]

Editor's Pick DOL Issues Temporary Rule on the FFCRA

"The mandate that an employer determine its workforce as of the date an employee's leave would start is important, as it may require employers that are close to the 'fewer than 500 employees' threshold to recount their employees each time an employee requests FFCRA leave."

Epstein Becker Green

[Guidance Overview]

Editor's Pick FFCRA Small Business Exemption Creates Opportunity and Confusion for Employers

"[If] you employ fewer than 50 employees, you may elect to invoke the 'small business exemption' (SBE) provisions of the FFCRA and avoid some (but not all) of the leave and paid leave requirements of the Act.... Even if an employer qualifies for SBE status, emergency paid sick leave must still be provided for certain conditions."

Ice Miller LLP

[Guidance Overview]

Paid Sick Leave Under the FFCRA: What Does It Mean to Be Unable to Work Due to a Quarantine or Isolation Order?

"[N]ot all employees who are subject to government orders restricting travel or mobility are entitled to paid sick leave under the FFCRA.... [T]he regulations make clear that an employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of an order or other circumstances."

Constangy, Brooks, Smith & Prophete LLP

[Guidance Overview]

Editor's Pick DOL's Regs for FFCRA: Calculating Amounts and Pay for Leave, Intermittent Leave, and How It Works with PTO

"As with full-time employees, if the part-time employee has a normal weekly schedule, he or she can get an amount of paid sick leave hours equal to the hours normally scheduled over a two-week period. If the part-time employee does not have a normal weekly schedule, the calculation is more complicated, and it depends on how long he or she has worked for you[.]"

Bradley

[Guidance Overview]

FFCRA Required Notice Alert for Covered Employers

"To the extent that many employers have adopted some form of remote operations in light of the COVID-19 pandemic, ... it makes good sense to utilize some form of electronic notice, in addition to posting the document on the billboards typically used by employers to post notices on the premises.... [W]hile certain health care and emergency response providers may opt out of providing the paid leave benefits required by FFCRA, those employers are nonetheless required to comply with the notice requirements."

Archer

[Guidance Overview]

New York State Enacts Broad Paid Sick Leave Law

"New York Governor Andrew Cuomo signed legislation on April 3 creating a statewide paid sick leave requirement (the Paid Sick Leave Law), which allows employees to use accrued leave beginning January 1, 2021, and will require large employers in New York City to provide at least 56 hours of paid sick time per year to eligible employees, which is 16 hours more than required under the New York City Sick Leave Law. Employers should take steps now to track accrual of sick leave beginning September 30, 2020, when the new law will take effect."

Morgan Lewis

Tracking Telehealth Changes State-By-State in Response to COVID-19

"As the coronavirus pandemic continues to spread across the U.S., states, payers and providers are looking for ways to expand access to telehealth.... [These] state summaries cover state licensure flexibilities related to COVID-19, telehealth coverage and payment changes for commercial plans, and telehealth coverage and payment changes in Medicaid."

Manatt, Phelps & Phillips, LLP

Data Can Provide a Degree of Healthcare Cost Certainty Amidst the Chaos

"[The authors are] seeing significant shifts in the patterns of care and health services ... [including a] surge in telemedicine claims and a modest drop in in-office visits and [a] 30% increase in prescription fills in March followed by dramatic reductions in early April. Reductions in both in- and outpatient surgeries, meanwhile, [have] been dramatic."

Buck

Cost Containment Strategies for Self-Insured Plans During Coronavirus

"Prescription drug formulary review ... Network provider review ... Reference based pricing platforms ... Plan design modifications ... Reinsurance negotiations."

OneDigital Health and Benefits

Implications of the COVID-19 Pandemic on Health Payer Operations

"The COVID-19 pandemic has the potential to significantly disrupt crucial operational areas for health payers. This brief identifies five key payer functions likely to be affected by the COVID-19 pandemic and actions payers can take to ensure business continuity while enhancing their contributions to the value chain."

Milliman

Benefits in General

Compensation and Benefits Issues for Employers in Light of the COVID-19 Pandemic

"[1] Cash conservation, salary reductions and deferral arrangements ... [2] Stock option repricing programs ... [3] Impact on performance-based compensation arrangements ... [4] Furloughs, layoffs, and benefits continuation ... [5] Section 125 plan election changes ... [6] Retirement plans and relief provisions in the CARES act ... [7] Suspending employer contributions to retirement plans ... [8] RIFs and partial plan terminations  ... [9] Plan terminations  ... [10] Plan fiduciary considerations."

Goodwin Procter

Sixth Circuit Holds Exhaustion of Administrative Remedies Not Required Where Plan Document Is Silent on Claims Review Process

"[T]he court found that because the plan document did not describe an internal claims review process or any remedies, it was procedurally deficient under the ERISA regulations, and thus Wallace's claim with Reliance was 'deemed exhausted.' In doing so, the court rejected Reliance's argument that the denial letter was sufficient because it set forth appeal procedures." [Wallace v. Oakwood Healthcare, Inc., No. 18-2316 (6th Cir. Mar. 31, 2020)]

Kantor & Kantor

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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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