Health & Welfare Plans Newsletter

May 22, 2020

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View Coronavirus (COVID-19) News and Resources

[Guidance Overview]

COVID-19 Joint Agency Relief: COBRA and Special Enrollment Extensions

"[To] comply with COBRA's notice requirements, employers may need to inform participants of the delayed timeframes. Rather than revising COBRA notices to reflect the Outbreak Period, which is temporary and uncertain in length, plan administrators may consider including a supplement that explains the Outbreak Period extension with the COBRA general and election notices."

Faegre Drinker

[Guidance Overview]

Editor's Pick COVID-19 Deadline Extensions Are Not Mandatory for Governmental Plans

"Rather than mandating affirmative extensions to plan participants like the Joint Notice did for participants in ERISA plans, HHS has taken the position that it will not consider a non-Federal governmental plan to be in violation of the Public Health Service Act if a non-Federal governmental plan voluntarily decides to grant the extensions described in the Joint Notice. HHS nonetheless encourages plans to grant the extensions."

Ice Miller LLP

[Guidance Overview]

IRS Releases 2021 Inflation Adjusted Amounts for HSAs

"The 2021 HSA contribution limit for individual coverage will increase by $50 to $3,600. The 2021 HSA contribution limit for family coverage will increase by $100 to $7,200.... [Rev. Proc. 2020-32] also includes the 2021 calendar year minimum deductible and out-of-pocket maximums allowed for a plan to qualify as a high deductible health plan (HDHP) -- the required coverage for an individual to be eligible to make or receive HSA contributions."

ABD Insurance & Financial Services

[Guidance Overview]

Must an Employee Enroll Their Child in a Summer Program as a Precondition to Taking FFCRA Leave If the Program Is Cancelled?

"According to the DOL's recently-released FAQ #93 ... EPSL and FMLA+ can be used if the employee's summer child care provider (a camp, recreational program, or day care center) is closed due to a COVID-19 related reason. But this also raises a question for me: to take EPSL or FMLA+, must the employee establish that the child actually was enrolled in a 2020 summer camp as a precondition to take leave?"

FMLA Insights

[Guidance Overview]

Oakland Enacts Emergency Paid Sick Leave, But Diverges from Other Bay Area Ordinances

"Oakland, San Francisco, and San Jose all passed emergency paid sick leave ordinances mandating employers to provide supplemental leave to employees unable to work as a result of the COVID-19 public health emergency. However, Oakland's COVID-19 Emergency Paid Sick Leave Ordinance is broader, impacting a larger pool of employers and adding costs to employers when layoffs occur."

Seyfarth Shaw LLP

[Guidance Overview]

Oakland Passes COVID-19 Paid Sick Leave

"Oakland's new paid sick leave requirements aim to fill the gaps in the coverage provided by the [FFCRA].... Oakland's new paid sick leave requirements apply to all private employers, regardless of the number of employees, but subject to [certain] exemptions.... Full-time employees who worked within the City of Oakland, including the Port of Oakland, between February 3, 2020 and March 4, 2020, or at any point thereafter, are eligible for up to 80 hours of Emergency Paid Sick Leave."

ReedSmith

[Guidance Overview]

Editor's Pick COVID-19 Emergency Local Paid Sick Leave Chart (California)

Many local governments in California have enacted laws requiring expanded paid sick leave for employees of private employers. This 9-page charg summarizes such laws in Los Angeles (city and county), San Francisco, San Jose, and Oakland.

Davis Wright Tremaine LLP

[Guidance Overview]

Chicago Enacts Additional Amendments to its Paid Sick Leave Ordinance

"On May 20, 2020, the Chicago City Council approved ... [an] anti-retaliation ordinance to protect employees from adverse employment action taken due to COVID-19. Also included ... are substantive revisions to Chicago's Paid Sick Leave Ordinance that will take effect July 1, 2020.... [The ordinance] reverses some of the amendments previously enacted in December 2019 that were set to take effect July 1, 2020."

Littler

New FSA Rules from the IRS: Some Considerations

"If you have a DCAP and/or a Health FSA, and you choose to implement these flexible options for 2020 you will want to take some action to notify your employees.... If you have already reviewed your current plan year and have passed testing related to IRS codes section 125 and 129, you may need to revisit those tests with updated information."

Findley

Tenth Circuit Upholds Health Plan's Denial of Surrogacy Expenses

"The Tenth Circuit held that the plan unambiguously excluded coverage for expenses related to surrogate pregnancy. In reaching this conclusion, the court rejected the participant's argument that the plan excluded non-traditional medical services during surrogate pregnancy, but covered traditional medical services related to surrogate pregnancy.... The facts of this case also underscore a practical difficulty for plan administrators in enforcing a plan's surrogacy exclusion -- namely, that the plan may not always know that a surrogate pregnancy is occurring." [Moon v. Tall Tree Administrators, LLC, No. 18-4034 (10th Cir. May 19, 2020)]

Thomson Reuters Practical Law

Federal Court Decision Highlights Challenges of Dealing with Employee Performance Issues While an Employee Is on FMLA Leave

"One key takeaway from this case is to avoid engaging in actions inconsistent with either employers' self-imposed obligations in dealing with an employee on FMLA leave or actions inconsistent with employers' legal obligations under the FMLA.... Another inconsistency was the [employer's] apparent failure to follow through on the commitment to allow the plaintiff to respond to the misconduct charges against her." [Kibbie v. Hays Consolidated Independent School District, No. 19-393 (W.D. Tx. Apr. 7, 2020)]

Ogletree Deakins

Editor's Pick Cost Rises to $6,553 for Coverage of Average Person in Employer-Sponsored PPO Plan, $28,653 for Family of Four

"Hospital costs have increased by approximately 15% in the past three years, with other services growing 10% in that time ... Employers and employees are equally absorbing this year's 4.1% cost increase ... If we visit the land of 'what if' and apply optimal care management practices we could see healthcare costs for the typical family land 25% lower." [Editor's note: Article includes link to an interactive tool that provides particular figures based on location and characteristics of covered family members (number, ages, gender).]

Milliman's Healthcare Town Hall

Benefits in General

[Guidance Overview]

Key Benefit Plan Participant Deadlines Extended During COVID-19 Outbreak

"[P]lan sponsors should ... [1] [D]etermine the administrative process for the [COBRA] extended deadlines, including how group health plan claims will be handled during the qualified beneficiary's election period and time period to pay COBRA premiums. [2] Coordinate with plan service providers, claims administrators and legal counsel to revise or supplement forms and claims procedures, to modify plan administration, and to incorporate the temporarily extended deadlines ... [3] Communicate with plan participants and beneficiaries regarding the relief provided through such modified deadlines."

Barnes & Thornburg LLP

Press Releases

Most Popular Items in the Previous Issue

COBRA in the Time of COVID-19
Foley & Lardner LLP

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Lois Baker, J.D., President  loisbaker@benefitslink.com
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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