Health & Welfare Plans Newsletter

May 27, 2020

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ERISA Services, Inc.
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ERISA Services, Inc.
Knoxville TN / Telecommute

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View Coronavirus (COVID-19) News and Resources

[Guidance Overview]

School's Out for Summer: Unavailability of Child Care and the FFCRA

"The question many employers are asking is whether employees qualify for paid leave if their preferred child care provider is not available but other daycare options are available.... forcing an employee to place their child in a day care or other child care setting, if the child's 'usual' child care provider is closed due to COVID-19-related reasons, risks an interference claim under the FFCRA."

Fisher Phillips

[Guidance Overview]

COVID Crisis Spawns COBRA Procedures Requiring Prompt Attention

"Employers with group health plans should advise employees and former employees whose employment terminated at any time after March 1, 2020 of these extended deadlines.... This is particularly important with respect to employees terminated on or after March 1 who have already received defective COBRA notices that fail to reflect the new COBRA deadlines. So, it makes sense for employers to stop using their current COBRA notice forms because they have time either to provide corrected notices or to provide information to supplement their current notice form."

Benefits Law Group of Chicago

[Guidance Overview]

IRS Guidance Released: Parking Tax Refunds Now Available

"Beginning in 2017, tax-exempt entities were subject to Unrelated Business Taxable Income equal to the costs for providing qualified transportation fringe benefits to employees, which includes certain employee parking. The Taxpayer Certainty and Disaster Tax Relief Act of 2019 passed as part of the Further Consolidated Appropriations Act, 2020, retroactively repealed this tax as though it never existed. To claim a refund of this tax, a tax-exempt entity may file an amended Form 990-T. The amended Form 990-T for 2017 Form 990-T is due by April 15, 2021. The amended Form 990-T for 2018 Form 990-T is due by April 15, 2022."

Miller Johnson

Whose Law? Where? When? -- Risk Management for ERISA Plans in Uncertain Times

"Employers should take the opportunity now to review their ERISA plans to consider adding risk management provisions. And such provisions may go beyond a choice of law.... [T]he Ellis case [might] have proceeded more smoothly to its ultimate conclusion if there had been a forum selection clause mandating that the litigation be held in Pennsylvania. In addition, the defendant likely could have avoided this entire inquiry if the plan sponsor had drafted a plan document, separate from the insurance certificate, that vested the insurer with discretion.' [Ellis v. Liberty Life Assurance Co. of Boston, No. 19-1074 (10th Cir. May 13, 2020)]

Seyfarth

Editor's Pick Employers Get Bit: Flurry of Class Action Lawsuits Allege Deficiencies in COBRA Election Notices

"[P]laintiffs' firms -- led by two firms in Florida -- have filed over twenty lawsuits against employer plan sponsors ... At least ten of the lawsuits have settled quickly, in some cases for large amounts, which likely has given incentive for the firms to continue filing complaints.... [B]ecause most employer health plans use some form of DOL's Model Election Notice, these firms can re-process a complaint very easily to apply to the next employer in line."

Groom Law Group

CMS Proposes Steep Penalties for Medicare Secondary Payer Noncompliance

"The proposed rule provides for the following civil monetary penalties for noncompliance: [1] Group health plans: $1,000 per day per person, up to a maximum penalty of $365,000 (adjusted over time for inflation). [2] Non-group health plans: the per-day penalty is discretionary but would be capped at $1,000 per day per person, up to a maximum penalty of $365,000 (adjusted over time for inflation)."

Hall Benefits Law

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Electronic Disclosures: Meet the New DOL Safe Harbor -- Same as the Old DOL Safe Harbor?

"DOL recently said 'The new safe harbor is an additional method of delivery and does not substantively change the 2002 safe harbor.' Nice that it takes them 150 pages to issue a regulation that doesn't 'substantively' change the existing one. Our tax dollars at work! Now, to be fair, I haven't read it, so maybe it provides more help than I expect. Since my expectations are very low, that's possible..."

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Press Releases

DOL Obtains Consent Order and Judgment to Restore Assets to Participants in Iowa Trucking Company's Retirement Plan
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Most Popular Items in the Previous Issue

Employers Consider Changes to PTO Policies as Unused Vacation Days Accumulate
Society for Human Resource Management [SHRM]; membership may be required to view article

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David Rhett Baker, J.D., Editor and Publisher  davebaker@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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