Health & Welfare Plans Newsletter

May 7, 2020

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View Coronavirus (COVID-19) News and Resources

[Official Guidance]

Text of Updated DOL FFCRA Questions and Answers: New Q&As 89-93

Updated on May 7, 2020 to add these Q&As:

  1. I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?
  2. If I am employed by a temporary placement agency that has over 500 employees and am placed at a second business that has fewer than 500 employees, how does the leave requirement work? Are one or both entities required to provide me leave?
  3. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?
  4. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?
  5. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

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

[Guidance Overview]

Editor's Pick New Model COBRA Notices Need Additional Language for Employer Protection

"The DOL has explained that it considers use of these two model COBRA notices as compliant with the applicable notice content requirements.... [T]he model COBRA notices do not include everything required under COBRA regulations, so plan administrators using the DOL model notices without any changes are exposed to potential litigation ... [T]he DOL's model COBRA notices are a good starting point, but they should be supplemented to ensure compliance with the COBRA regulations."

Nixon Peabody LLP

[Guidance Overview]

How HIPAA Impacts Provider Disclosure of COVID-19 Testing to Employers

"Some employers are choosing to subsidize COVID-19 testing for employees as a pre-return screening precaution, raising legal questions about how and to whom the results may be disclosed.... [This article sets] out scenarios when providers are legally permitted to disclose COVID-19 testing data to employers directly."

Faegre Drinker

[Guidance Overview]

Los Angeles County Supplemental Paid Sick Leave Ordinance Covers Employers in Unincorporated Areas of the County

"The County's ordinance applies only to businesses in unincorporated areas of the County and to employees who perform any work within the County....The ordinance, which went into effect immediately due to an urgency clause, requires covered employers to provide up to 80 hours of additional paid sick leave to full-time employees, and part-time employees to receive an amount no greater than the employee's average two-week pay over the period of January 1, 2020, through April 28, 2020."

Jackson Lewis

[Guidance Overview]

New York Employers Must Record and Maintain Sick Leave Data, Beginning September 30

"Effective September 30, 2020, [New York's Wage Theft Prevention Act (WTPA)] will be amended to require all New York State employers to maintain records -- for no less than six years -- of the 'amount of sick leave provided to each employee.' Although employees will not be entitled to use paid sick leave until January 1, 2021, they may begin accruing leave as of September 30, 2020."

Davis Wright Tremaine LLP

New COVID-19 Lawsuit Sends Warning to Employers Too Large to Be Covered by FFCRA

"[T]he ex-employee alleges that her termination for violating the company's attendance policies violates both the [FMLA] as well as the [FFCRA], even though Kroger has over 500 employees and is not covered by the FFCRA.... What can all employers -- especially those who believed they were well outside the reach of the FFCRA -- learn from this claim?" [Robtoy v. The Kroger Co., No. 20-173 (N.D. Ind. complaint filed Apr. 28, 2020)]

Fisher Phillips

Removing Regulatory Barriers to Telehealth Before and After COVID-19

"State and federal barriers in the use of telehealth and AI have served as hindrances to the launch of its full capabilities, particularly those laws that present a patchwork of accepted and non-eligible costs and services. Given that telehealth now has a critical role in the mitigation of COVID-19, how well will the U.S. take guidance from its rapid adoption and use?"

The Brookings Institution

Editor's Pick COVID-19 Considerations for Commercial Health Insurance Rates in 2021 and Beyond

"As knowledge around COVID-19 continues to evolve, much of the industry focus has been on this year's costs, but this volatile and uncertain environment also presents an extraordinary challenge for health plans developing rates for 2021 commercial coverage. This white paper is intended to help commercial health plans navigate this evolving environment[.]"

Milliman

Editor's Pick Premium Credits and the Coronavirus: Handling the ERISA Issues Safely

"While ERISA issues with respect to insurer rebates and refunds can be thorny because premium payments are returned to the employer in cash, mere credits don't pose the same level of risk ... Premium credits are easier from an ERISA perspective, because the insurer is unilaterally keeping the credit within the four walls of the plan....An employer would not ... want to continue the withhold employee premium contributions and pocket, for its own account, those contributions, up to the amount of the premium credit."

Lockton

HHS Addresses HIPAA Restrictions on Filming Patients During COVID-19 Pandemic

"The guidance confirms that the COVID-19 public health emergency does not alter the Privacy Rule's existing restrictions on disclosures of individuals' protected health information (PHI) to the media.... HHS also concludes in a Q&A that health providers may not allow media or film crews to film patients in provider facilities where the individuals' PHI is accessible without their authorization. This rule applies even if the individuals' faces are blurred or their identities are obscured in the video using pixilation or voice alteration."

Thomson Reuters Practical Law

Court Treats Four Standalone Key Employee Life Insurance Policies as Single ERISA Plan

"Arguing that the surrounding circumstances demonstrated the existence of an ERISA plan despite the lack of a written plan document, the former employee sued the company and its owner for failure to provide information about an ERISA plan and for benefits under the plan. The company argued that the purchase of individual life insurance policies was a series of 'ad hoc' decisions that did not create a plan under ERISA....Pointing to the decades-long payment of premiums, the court concluded a continuing administrative scheme was present....Observing that 'terms need not be undisputed to be ascertainable,' the court ruled that there was an ERISA plan." [Alberth v. Southern Lakes Plumbing & Heating, Inc., No. 19-062 (E.D. Wis. Mar. 6, 2020)]

Thomson Reuters / EBIA

Benefits in General

[Guidance Overview]

Editor's Pick IRS Proposes Rules on UBIT Changes Affecting Benefit Plan Investors

"A significant uncertainty in this area has been whether each investment held by a plan is a separate 'trade or business' (such that a plan must calculate its UBIT for each individual investment) or whether a plan can consider all investments of the same 'type' as a single trade or business (such that a plan can calculate its UBIT across all of these investments in the aggregate, netting gains and losses on the whole). [IRS Notice 2018-67] provided a variety of approaches that plans may apply to simplify the impact of this change. The Proposed UBIT Regulations retain many of the concepts included in the Notice but with some significant modifications."

Groom Law Group

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Dependent Care FSA -- Incurring Expenses While Children Are Home

"I am aware of the conversation surrounding the issue of mid-year changes to DCFSA elections with changing costs of care related to COVID-19 stay-at-home orders. But is anyone aware of any thinking about employees in the following situation: employee pre-paid childcare costs at beginning of school year, as many care providers require, making a DCFSA election to cover the costs. In the typical case, employee would be eligible for reimbursements as expenses are incurred, that is, when services are rendered as the children go to the care provider. Now, the care provider is closed and the children are at home. No services are being rendered. However, some care providers are not giving refunds, so the childcare costs remain for the employee even though the children are not going to the care provider. Is there any sort of relief for this situation, or is the answer that the employee is stuck with a cost which is now ineligible for DCFSA reimbursements because care is never actually provided?"

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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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