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Pandemic Influenza Resources

Excerpt: [Troutman Sanders has assembled this resource page as a service to] clients and the public to make critical information about this major public health threat more easily available.

Electronic Delivery of Required ERISA Notices for 401(k) Plans Made Easier Under New DOL Rules

"Covered individuals may continue to receive their covered documents by e-delivery even after they separate from employment with the plan sponsor.... As a best practice, plan administrators should keep a secondary electronic address for the covered individual on file and send the notice to the secondary address if they are alerted to an invalid or inoperable primary electronic address."

Tenth Circuit Upholds Choice-of-Law Provisions in ERISA Health Benefits Plan

"[T]he panel held that if there were a legitimate connection to the state whose law was chosen by a plan, then that state's law should govern the enforceability of any discretion-granting clauses.... [T]his holding clarified whether [the health benefit] policy was governed by Pennsylvania law -- as it declared in a choice-of-law provision -- or subject to a Colorado statute that forbids insurance policies from giving insurers, plan administrators or claim administrators discretion to interpret the plan's terms to make benefits decisions." [Ellis v. Liberty Life Assurance Co. of Boston, No. 19-1074 (10th Cir. May 13, 2020)]

COVID-19 Resource Guide: Action Items and Implementation Guidelines for Employee Benefit Plans

22-page chart summarizes official guidance, effective dates, employer actions, and additional notes for employer-sponsored plans.

Questions Raised by Executive Compensation Limits in CARES Act

"[The CARES Act] includes a provision intended to prevent federal loans or loan guarantees from being used to enhance senior executive compensation.... The interpretation of 'total compensation' and 'severance pay or other benefits upon termination' will be crucial.... If total compensation is measured when taxable, there may be different outcomes for similarly paid executives ... [and] there will be opportunities for planning.... The rolling 12-month compensation limitation also creates an opportunity for planning."

COVID-19 Retirement Plan FAQs for Employers

"Does the COVID-19 emergency satisfy the requirements of an immediate and heavy financial need for a hardship distribution? ... Can our plan permit in-service withdrawals, other than for hardship, that are not subject to the 10% early termination penalty tax? ... Are there restrictions on whether we can approve an employee's loan request? ... Do we have to continue withholding elective deferrals and remitting those contributions? ... Our company is struggling financially in connection with the COVID-19 emergency. We are considering layoffs. Could layoffs potentially affect our retirement plan?"

COVID-19 Executive Compensation FAQs for Employers

"[1] Can or should companies make adjustments to their annual and long-term incentive plans in light of COVID-19 business impacts? ... [2] We were about to pay our 2019 annual bonuses but want to indefinitely delay payment given financial uncertainty caused by COVID-19. Will that delay cause any legal issues? ... [3] The COVID-19 crisis has caused our stock price to drop dramatically. What impacts could this have on our equity compensation program? ... [4] Can we permit participants to cancel deferral elections and/or receive distributions from our nonqualified deferred compensation plans?"

IRS Creates Open-Ended Potential Liability Exposure for Employer 4980H Penalties

"Although it remains to be seen if or how aggressively the IRS will attempt to pursue ESRPs for returns filed more than three years ago, ALEs should not assume that they are, at any time, 'in the clear' for such years but should instead be prepared to pay or challenge an ESRP with respect to any calendar year beginning with 2015."

162(m) Proposed Regs: Lessons and Planning Opportunities

"162(m) will apply to more companies ... 162(m) will apply to more employees ... 162(m) will apply to more compensation ... New public companies will not have transition relief ... Grandfather rules are clarified but still require legal judgments ... The interplay between 409A payment rules and 162(m) [is] clarified."

Are Mandatory Individual Arbitration Clauses in 401(k) Plans a Good Idea?

"The answer requires a careful balancing of potential pros and cons of mandatory individual arbitration clauses ... ... The key potential benefit [is] ... the potential deterrent effect on frivolous ERISA fiduciary breach class action claims.... The key potential risk [is] ... the potential for mass filings of individual arbitration claims. "