close up of a coronavirus molecule

Latest Insights on COVID-19

close up of a coronavirus molecule

Latest Insights on COVID-19

COVID-19-Related Benefits Compliance Resources Available

July 21, 2020

The Benefits Compliance team has provided a number of resources that are available for assistance during the COVID-19 crisis. Information presented through our resources is subject to change pending additional guidance from the DOL, IRS or other state or federal regulatory agencies.

Benefits Compliance COVID-19 State Quick Reference Chart

Last updated on October 13, 2021

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Employer Considerations: Biden Administration Mandates Vaccination or Testing for Most Employees

Last updated on September 15, 2021

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Benefits Compliance and COVID-19: Return to Work Frequently Asked Questions

Last updated on June 04, 2021

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The COVID-19 Vaccines: Frequently Asked Questions

Last updated on February 25, 2021

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HHS Renews COVID-19 Public Health Emergency Proclamation

February 02, 2021

On January 7, 2021, HHS announced that the public health emergency proclamation for COVID-19 is renewed for another 90 days, beginning on January 21, 2021 (the date the previous HHS proclamation expired) and extends through April 20, 2021.

The CARES Act and the FFCRA require plans (including self-insured plans) to cover COVID-19 testing without cost-sharing and without pre-authorization. Importantly, that includes diagnostic tests approved, cleared, or authorized by the FDA, subject to a developer’s request for FDA emergency use authorization, or developed in and authorized by a state, as well as serological tests (antibody) tests. Those CARES Act/FFCRA requirements are effective from March 18, 2020, and last through the duration of the HHS-declared public health emergency.

Generally, the emergency declaration lasts for 90 days or until HHS declares that the public health emergency no longer exists, whichever occurs first. HHS may extend the public health emergency declaration for subsequent 90-day periods for as long as the public health emergency continues to exist. HHS previously renewed their declaration in April, July and October (which expired on January 21, 2021).

Employers should be aware of the HHS proclamation renewal. While carriers (for fully insured plans) and TPAs (for self-insured plans) will likely handle the administrative aspects of COVID-19 testing and billing, employers will want to understand the coverage requirements in connection with the proclamation extension.

HHS Proclamation

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The COVID-19 Vaccines: Keeping Your Employees Safe

Last updated on January 14, 2021

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Frequently Asked Questions: Benefits Compliance and COVID-19

Last updated on January 14, 2021

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Congress Passes Appropriations Bill with COVID-19 Relief

December 21, 2020

On December 21, 2020, Congress passed the Consolidated Appropriations Act of 2021, which includes COVID-19 relief legislation. (As of the time of publication of Compliance Corner, President Trump had not signed the legislation, but is expected to.) In addition to approximately $1.4 trillion in stimulus spending, the legislation includes various benefits-related provisions, such as extensions for FFCRA leave tax credits, temporary extension of FSA and DCAP grace and carryover periods, a new federal prohibition against certain surprise billing practices and price transparency requirements which prohibit certain information from being withheld from third parties and require plans and issuers to file reports with the federal government. This article provides a preliminary summary of these provisions.

FFCRA

The new law allows employers covered by the FFCRA (those with fewer than 500 employees) to extend the time they can offer EPSL or EFMLA to employees to March 31, 2021. If they do, then they can apply for the tax credits available under the FFCRA for leave granted under the extension. The law does not provide any additional leave for employees, just additional time during which employers may grant that leave if any is still available to the employee.

FSAs and DCAPs

The law also permits additional flexibility for FSAs and DCAPs. DCAP sponsors are temporarily permitted to adopt carryover features, which are otherwise limited to FSAs. Furthermore, for plan years ending in 2020 and 2021, both FSAs and DCAPs appear to be permitted to carry over any unused funds to the following plan year. (There is no reference to the $550 carryover cap currently applicable to FSAs.) Similarly, the law allows for the extension of FSA and DCAP grace periods for a plan year ending in 2020 or 2021 to 12 months.

Employees who cease participating in an FSA during calendar year 2020 or 2021 can continue to receive reimbursements from unused benefits or contributions through the end of the plan year in which such participation ceased (including any grace period, such as one extended under this law). This provision resembles a DCAP spend-down and does not appear to require employees to elect COBRA coverage in order to take advantage of it.

In addition to these extensions, plans can allow employees to make elections to prospectively modify the amount (but not in excess of any applicable dollar limitation) of their contributions to an FSA or DCAP without a change in status.

These changes are optional for employers. Plan documents will need to be amended to make these changes; however, the amendments can be retroactive, if (1) such amendment is adopted not later than the last day of the first calendar year beginning after the end of the plan year in which the amendment is effective (e.g., calendar 2020 plan amendments must be adopted on or before December 31, 2021) and (2) the plan or arrangement is operated consistent with the terms of such amendment during the period beginning on the effective date of the amendment and ending on the date the amendment is adopted.

The law also provides that expenses for an employee’s child continue to be eligible for reimbursement under a DCAP even when the child turns age 13 (the age a child normally ages out of eligibility for qualified expenses), provided that the regular enrollment period for the DCAP plan year at issue ended on or before January 31, 2020. This also goes for any unused balance rolling over to the next plan year.

Surprise Billing

Effective January 1, 2022, the relief legislation protects people from large unexpected medical bills they may incur when obtaining emergency medical care from out-of-network providers (including air ambulance services). The law requires health plans or insurers to pay out-of-network providers for emergency care services provided to their insureds, without imposing increased cost sharing or pre-authorization requirements upon the insureds. Any cost sharing imposed upon the insureds for these services will be treated the same way they are treated if applied towards services provided by in-network providers (such as counting towards out-of-pocket maximums or in-network deductibles).

Insurers and plans can negotiate with the out-of-network providers on the price they will pay for the emergency services. The out-of-network providers bill the plan or insured for the services and the plan or insured has 30 days to either make an initial payment or deny the payment. The initial payment (or “qualifying payment”) is an amount determined to be the median payment amount for the same or a similar item or service that is provided by a provider in the same or similar specialty and provided in the geographic region in which the item or service is furnished. HHS is charged with promulgating rules for determining qualifying payments by July 1, 2021. Regardless of whether a payment is made or denied, the parties have 30 days to negotiate the price that the plan or insurer will ultimately pay for the item or service and, if that fails, the parties may also arbitrate. Once an arbitrator is agreed upon, then the arbitrator has 30 days to determine the price. The arbitrator cannot consider benchmark or government reimbursement rates when determining a price.

The prohibition against balance billing will not apply to providers who provide services to patients (that are not considered “ancillary” services) if:

  • the patient receives an oral and written notice 72 hours in advance of the appointment for the service that explicitly states that the provider is out-of-network;
  • consent to receive the service out-of-network is optional and the same service can be obtained by an in-network provider;
  • the provider provides a good faith estimate of the amount that the patient will be charged for the service if they consent;
  • the facility provides a list of any in-network providers who can provide the same service (if the out-of-network provider in question works out of an in-network facility); and
  • the patient consents to the notice in writing and receives a copy of the signed consent.

For purposes of this law, “ancillary services” include: emergency medicine, anesthesiology, pathology, radiology and neonatology; items and services provided by assistant surgeons, hospitalists and intensivists; diagnostic services that are not exempted by rule; and items and services provided by non-participating providers if there are no participating providers at the same facility who can furnish such items or services.

Among other items of note, the legislation also imposes a requirement that all insurance ID cards must include plan deductibles for both in- and out-of-network services, out-of-pocket maximums and plan telephone number and web address. It also requires plans to provide, upon request of a participant or provider, an explanation of whether a particular provider or facility is in- or out-of-network for the service to be provided, the contract rate for that service and whether that service can be obtained in-network.

States are charged with enforcing these provisions and they can additional obligations on out-of-network providers that go beyond those established by this law. If the states do not want to enforce these provisions, then HHS can do so.

Price Transparency

The law encourages price transparency by prohibiting health plans and insurers from entering into agreements with providers that prohibit the provision of provider-specific cost or quality of care information; electronic access to de-identified claims and encounter information for each enrollee in a plan; or sharing of the above information/data with business associates in accordance with HIPAA standards.

Beginning one year after the passing of the law and every June 1 thereafter, group health plans and issuers must submit a very detailed report to the DOL and Department of the Treasury that includes, among other things: the number of enrollees in the plan; the plan year; the states in which they offer coverage; the top 50 brand drugs dispensed by pharmacies for claims under the plan and the total claims paid for each drug; the top 50 by total annual spending and the annual amount spent for each of those drugs; and total spending by the plan (broken down by types of cost, such as hospital and primary care, specialty care, provider and clinical service costs, prescription drugs, wellness and plan and enrollee spending on prescription drugs).

We have highlighted some of the major benefits-related provisions in this article, but the law (when passed) will be brand new. In the next edition of Compliance Corner, we will provide additional details on the various provisions that impact employee benefit plan sponsors.

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IRS Provides FAQ on Relief for Rule on Van Pools Affected by COVID-19

December 21, 2020

On December 3, 2020, the IRS released an FAQ about COVID Relief for Van Pools which explains temporary relief from certain conditions normally required for vanpooling benefits to be excluded from employees’ income as a fringe benefit.

As background, “vanpooling” refers to transportation in a commuter highway vehicle between an employee’s residence and place of employment. Further, a commuter highway vehicle is required to have the seating capacity of six or more adults (excluding the driver), and a minimum of 80% of the vehicle’s reasonably expected annual mileage must be used to transport employees between their residences and their place of employment. Importantly, commuting miles only count towards that 80% if the number of employees transported is at least 50% of the vehicle’s adult seating capacity (excluding the driver). This is commonly referred to as the “80/50 requirement.”

In light of the ongoing public health emergency, the IRS explains that if the employer reasonably expected at the beginning of the 2020 calendar year that at least 80% of the vehicle’s mileage would be used for vanpooling (meeting the 80/50 requirements mentioned above), but because of the ongoing COVID-19 emergency such requirements were not satisfied, the vehicle is still considered a commuter highway vehicle for the duration of 2020 so long as the seating capacity is at least six adults (excluding the driver). (For the purpose of this relief, the COVID-19 emergency commenced on the date of the president's emergency declaration, March 13, 2020.) Meaning, provided the other requirements of being a qualified transportation fringe benefit are met, up to $270 per month of the value of the van pool transportation provided by an employer and cash reimbursements from an employer to its employees for expenses related to an employee-operated van pool may be excluded from employees’ income. This relief applies to van pools using employer-operated or employee-operated vehicles.

Employers should be aware of this relief when administering fringe benefits.

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EEOC Provides Guidance on Employer-Mandated COVID-19 Vaccinations

December 21, 2020

On December 16, 2020, the EEOC updated its FAQs that cover a variety of COVID-19-related issues by adding several new FAQs directly addressing issues relating to employer-mandated COVID-19 vaccinations. The EEOC does not mandate that employers require vaccinations; however, it does allow employers to do so if they follow applicable laws. Keep in mind that employees who refuse to take the vaccine may not be excluded from the workplace, unless the employer determines that there is a direct threat to health and safety at the worksite and no other reasonable accommodation with the employee can be made. The FAQs provide more detail concerning issues surrounding employees who refuse to get vaccinated due to a disability or for religious reasons.

The EEOC states that an employer-mandated vaccination is not a “medical examination” under the ADA. However, if the employer follows CDC (Centers for Disease Control) guidelines and asks pre-screening questions of employees to figure out whether they have medical reasons for not taking the vaccine, then those questions are subject to the ADA, which requires the employer to show that the questions are “job-related and consistent with business necessity.” If the vaccinations are voluntary (and the pre-screening questions are also voluntary) then the employer does not have to make that showing. Similarly, if the employee obtains the vaccination from a third party that is not contracted to supply the vaccine by the employer, then the employer would not have to make that showing.

If an employee asserts an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the vaccine, or if the employee’s sincerely held religious belief, practice or observance prevents him from taking the vaccine under Title VII of the Civil Rights Act, then the employer must (under most circumstances) provide reasonable accommodations for that employee. If the employer cannot provide such accommodation, then it should figure out whether the employee has other rights under federal or state law before terminating the employee.

The FAQs also cover some issues relating to GINA. According to the EEOC, the act of vaccinating by itself does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information, and does not implicate that statute. However, pre-screening questions may implicate GINA if they include questions about genetic information, such as questions about the immune systems of family members. As of the date of these new FAQs, it is unclear whether such information is needed to receive the vaccination.

Employers who are considering imposing a mandatory COVID-19 vaccination requirement on their workforces should be aware of these FAQs. Employers with questions concerning the implementation of a mandatory vaccination policy should consult with employment law counsel.

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DOL Clarifies FFCRA Regulations in Response to NY District Court’s Ruling

September 15, 2020

On September 11, 2020, the DOL published revisions to regulations relating to the FFCRA, which provides emergency paid sick leave (EPSL) and expanded paid FMLA (EFMLA) leave for COVID-19-related employee leave. The DOL’s revisions clarify workers’ rights and employers’ responsibilities under the FFCRA in response to an August 3, 2020, ruling from the US District Court for the Southern District of New York, which invalidated portions of the DOL’s FFCRA regulations. (We addressed that case in the August 18, 2020, edition of Compliance Corner.) The DOL also published a news release and added three new questions and answers to its FFCRA questions and answers webpage (Q&As 101, 102 and 103), and clarified other FAQs relating to the revised regulations. Below is a summary of the issues and the changes made by the revised DOL regulations.

The District Court found that four portions of the DOL’s FFCRA rules were invalid:

  1. The standard indicating that EPSL and EFMLA are available only if an employee has work from which to take leave. This has created a “work availability” standard, which basically means an employee cannot take FFCRA leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply.
  2. The provision indicating that an employee may take FFCRA leave intermittently only with employer approval.
  3. The definition of an employee who is a “‘health care provider,” whom an employer may exclude form FFCRA leave eligibility.
  4. The requirement that employees provide their employers with certain documentation before taking FFCRA leave.

Before addressing those four issues, it’s important to note that the DOL first clarifies that the District Court’s ruling applied nationwide, not just as to the parties in the case and not just to employers in New York. Therefore, the revised regulations apply nationwide.

Work Availability Standard

To better understand the revised regulations on the work availability standard, it’s important to remember that the District Court had two reasons for invalidating the this portion of the rule: the unreasoned and inconsistent application of the requirement to only three of the six reasons for FFCRA leave; and the DOL’s insufficient explanation of the reason for imposing this standard at all.

In response, the revised regulations explain that the work availability standard applies to all qualifying reasons to take EPSL and EFMLA under the FFCRA. In addition, the revised regulations clarify that FFCRA-leave may be taken only if the employee actually has work from which to take leave. Specifically, if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a “but-for” cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.

Thus, the DOL explains and reaffirms that an employee may take EPSL or EFMLA leave only to the extent that any qualifying reason is the cause of the employee’s inability to work. The DOL also explains that the work availability standard is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when the employee would otherwise have been working. In other words, if an employee is not expected or required to work, the employee is not taking leave. The DOL explains that this interpretation is also consistent with the DOL’s long-standing interpretation of the term “leave” in the FMLA (which the EFMLA amended), and gave an example of the FMLA regulations that state that if an employer’s business activity has temporarily ceased and employees are not expected to report to work, that the time that the employer’s activities have ceased do not count against the employee’s FMLA entitlement.

Based on that analysis, the DOL also reiterated that employers may not make work unavailable in an effort to deny FFCRA leave because altering an employee’s schedule in an adverse manner due to the employee’s request for or use of FFCRA leave would violate the FFCRA’s anti-retaliation provisions. Thus, overall, the DOL interprets the FFCRA to grant relief to employers and employees where employees cannot work because of the enumerated reasons for leave, but not where employees cannot work for other reasons, in particular the unavailability of work from the employer. Therefore, the work availability standard remains in place, and is applicable to all six reasons for taking FFCRA leave.

Intermittent Leave

On the second issue, the revised regulations reaffirm that where intermittent FFCRA leave is permitted, an employee must obtain their employer’s approval to take that leave intermittently. The revised regulations provide further explanation to justify their reaffirmation, including the idea that current FMLA provisions and standards also support employer approval of intermittent leave (under the original FMLA, Congress expressly authorized employees to take FMLA leave intermittently but only under certain circumstances — one of which is where there is an agreement between the employer and employee). The DOL points out that in contrast to the FMLA, Congress said nothing about intermittent leave in the FFCRA; instead they granted the DOL broad regulatory authority to effectuate the EPSL and EFMLA (which, again, amends the FMLA) and to ensure consistency between the two laws.

The DOL further explains that while the DOL recognizes that the FFCRA is intended in part to allow eligible employees to take paid leave for certain COVID-19-related reasons, unrestricted intermittent leave would undermine a statutory purpose of combating the COVID-19 public health emergency. For example, giving employees taking leave to care for individuals with COVID-19 unrestricted flexibility to go to work on days of their choosing could increase the risk of COVID-19 contagion. Thus, employer approval is necessary. The revised regulations include other examples to reaffirm and further explain the employer approval requirement for intermittent leave.

Definition of “‘Health Care Provider”

Generally speaking, the FFCRA permits employers to exclude healthcare providers from some or all forms of EPSL or EMFLA. The original DOL rule defined “‘health care provider” broadly, focusing on the types of employers that could use the exemption. The District Court, though, noted that any definition of “‘health care provider” must require a “minimally role-specific determination” of who is capable of providing healthcare services, and should focus on the skills, roles, duties or capabilities of the employees. This would require position/role-specific analysis of whether someone met the definition of health care provider before deciding whether FFCRA leave is permitted.

In response, the revised regulations’ definition of “health care provider” focuses on employees whose duties or capabilities are directly related to the provision of healthcare services or are so integrated with those services so as to adversely impact patient care if they were not provided. Thus, it would include employees whose roles provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.

More specifically, the revised regulations include only those who are “health care providers” under existing FMLA regulations, which includes doctors of medicine and osteopathy and other capable of providing healthcare services. The definition includes a list of professions, including podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants and certain Christian practitioners. The DOL asserts, though, that for purposes of the FFCRA, the scope of healthcare services must be broader to account for the context of a pandemic, since more types of healthcare provider employees’ absences would be even more disruptive.

So, drawing upon a different definition (borrowed heavily from the Pandemic Hazards Preparedness and Advancing Innovation Act of 2019), the DOL identifies four buckets of healthcare services. The first is diagnostic, which includes taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and the interpretation of test or procedure results. The second is preventive, which includes screenings, check-ups and counseling to prevent illness, disease or other health problems. The third is treatment, which includes the performance of surgery or other physical treatments or procedures, prescribing or administering medication, physical therapy, and providing or assisting in breathing treatments. The fourth is integrated services, which are those that are necessary to diagnostic, preventive or treatment services and, if not provided, would adversely impact patient care (including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transportation of patients or samples).

In conjunction with those four buckets, and focusing on the employees’ roles (rather than the type of employer), the revised regulations specifically identify several types of employees who may be excluded from taking FFCRA leave. Those include nurses, nurse assistants, medical technicians and other employees providing diagnostic, preventive, treatment or other integrated services. Those also include employees providing such services under the supervision, order or direction of, or providing direct assistance to, a healthcare provider, and employees who are otherwise integrated into and necessary to the provision of healthcare services, such as laboratory technicians who process test results necessary to diagnosis and treatment.

The regulations then specifically exclude from that definition those employees who do not actually provide such healthcare services (even if their services could affect the provision of healthcare services), including IT professionals, building maintenance staff, HR personnel, cooks, food service works, records managers, consultants and billers. The regulations also include a list of typical work locations where employees providing healthcare services may work, including a doctor’s office, hospital, healthcare center, clinic, medical school, local health department or agency, nursing or retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. That list is not exhaustive, and employees can be healthcare providers even if they do not work at a location or worksite included on that list.

Employee Notification and Substantiation

The District Court invalided the DOL’s original regulations to the extent it required employees to provide documentation prior to taking FFCRA leave, since that made several of the FFCRA’s provisions unworkable. In response, in the revised regulations, an employee need only provide documentation as soon as practicable, which in most cases will be when the employee provides notice of the need for FFCRA leave. The regulations provide further, though, that if EFMLA is foreseeable, such as in instances where the employee learns in advance that the child’s school or place of care will be closed, the DOL anticipates that the employee generally will provide notice before taking the leave.

Summary

With the exception of the definition of “‘health care provider,” the DOL’s revisions basically reaffirm their original regulations (while providing additional justifications and explanations). Therefore, the administration of FFCRA leave remains substantially the same, except with respect to healthcare provider exceptions and advance employee notification requirements, as explained above. The revisions are effective September 16, 2020, and remain in effect through the expiration of the FFCRA’s paid leave provisions on December 31, 2020. Employers should review the changes to FFCRA, and implement them into their leave policies.

Revised DOL FFCRA Rules

DOL FFCRA Questions and Answers

DOL News Release

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Congressional Research Service Issues COVID-19 and Private Insurance FAQs

September 01, 2020

On August 24, 2020, the Congressional Research Service (CRS) issued COVID-19 and Private Health Insurance Coverage: Frequently Asked Questions in light of the ongoing pandemic. With private health insurance being the primary source of health coverage in the US, the FAQ addresses covered benefits and cost sharing regarding COVID-19 testing, treatment, and a potential vaccine under private health insurance (which includes employer-sponsored group health plans generally and individual market plans).

The FAQ reiterates that under the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief and Economic Securities Act (CARES Act), most private health insurance plans are required to cover COVID-19 testing without cost sharing (both in network and out of network), including test administration and related items and services. Further, there is not a federal requirement specifically for the coverage of COVID-19 treatment. However, there is a federal requirement for certain plans to cover a core set of categories for essential health benefits (EHB), and each state can select its EHB benchmark plan. That said, the EHB benchmark plans in all states currently provide coverage for the diagnosis of and treatment for COVID-19. However, the specific benefits provided may vary by state and by plan. Importantly, even if a coverage requirement exists, cost sharing may still apply.

Additionally, the FAQ explains that while there currently is no FDA-approved COVID-19 vaccine available, the CARES Act requires most plans to cover such vaccine (when available) with no cost sharing, if recommended by the Advisory Committee on Immunization Practices (ACIP). Likewise, coverage (without cost sharing) is required by most plans for other COVID-19 preventive services that are recommended by the United States Preventative Services Task Force (USPSTF). The FAQ also provides additional information on covered benefits and cost sharing regarding COVID-19 related services under private health insurance.

While the FAQ does not introduce any new guidance, employers should be aware of the COVID-19 coverage and cost sharing requirements as outlined in this report. 

COVID-19 and Private Health Insurance Coverage: Frequently Asked Questions

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DOL Clarifies FFCRA Eligibility Related to Reopened Schools

September 01, 2020

In the August 18, 2020, edition of Compliance Corner, we considered the eligibility of employees for leave under the Families First Coronavirus Response Act (FFCRA) when their child’s school has reopened but they have chosen to keep the child home on virtual learning. On Aug. 27, 2020, the DOL provided guidance on that topic and related issues by updating their ongoing FFCRA questions and answers.

As background, the FFCRA requires employers with fewer than 500 employees to provide emergency paid sick leave (EPSL), as well as expanded FMLA (EFMLA), to employees if they must take care of their children whose school or daycare is unavailable due to COVID-19.

In FFCRA questions #98 through #100, the DOL clarified that employees would be eligible for paid leave under FFCRA in the following two scenarios:

  • The child’s school remains physically closed. The school year has begun remotely only. Children are not permitted to attend school in person.
  • The child’s school has opened on a hybrid basis. The school is physically open every weekday. Students alternate days between attending school in-person and attending remotely from home. In other words, children are only permitted to attend school in-person on assigned days.

The employee would be eligible for paid leave under FFCRA on the days that the child is not permitted to attend school in-person if the employee is in need of leave to care for the child during that time. There must be no other suitable person available to care for the child.

Now consider a scenario where the child’s school is open and children are permitted to attend in-person. Parents are given a choice as to whether the child will attend school in-person or remotely. If the employee chooses for the child to attend school remotely due to personal reasons such as fear of contracting COVID-19, the employee is not eligible for paid leave under FFCRA. However, if the child does not attend in-person because the child is under a COVID-19 quarantine due or a healthcare provider’s advice to quarantine, the employee would be eligible for paid FFCRA leave if they need to care for the child and no other suitable person is available.

Employers should review the new guidance and revise their policies, if necessary, in order to provide appropriate leave for eligible employees. 

FFCRA FAQs, Questions 98-100

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New York Case Considers FFCRA Regulations

August 13, 2020

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IRS Confirms that Plan Sponsors Are Not Required to Extend FSA Claims Period

August 04, 2020

The IRS recently released an information letter dated June 29, 2020, addressing concern over unused amounts in health FSAs due to issues related to the COVID-19 public health emergency. As background, unused amounts in a health FSA are generally forfeited at the end of the plan year, unless the health FSA offers a grace period or carryover provision (i.e., “use it or lose it”). Due to the COVID-19 public health emergency, certain services may not be available, resulting in unspent health FSA funds for some participants. As such, the information letter addresses a request for an extension of time to use the amounts in the health FSA.

The IRS explains that plan sponsors are not required to extend a health FSA’s claims period, even in light of the COVID-19 public health emergency. However, the IRS reiterates that an employer with a health FSA plan year or grace period ending in 2020 is permitted to amend its plan to extend the claims period through the end of 2020. In addition, employers may amend their plans to provide for midyear health FSA election changes on a prospective basis, including revoking an election or increasing or decreasing an existing election. Further, an employer can also choose to amend its plan to provide for up to $550 in a carryover provision. Importantly, although these plan changes are permitted, they are not required. (See our Compliance Corner article from May 12, 2020, “IRS Announces New COVID-19-Related Guidance for Section 125 Cafeteria Plans and Related High Deductible Health Plans, and ICHRAs” for more information on these options for employers.) 

Although this letter does not provide novel guidance, it does confirm the actions that employers can take with regards to their FSAs.

IRS Information Letter 2020-0009 »

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Compliance Considerations on Insurance Carrier Refunds in the COVID-19 Environment

Last updated on July 31, 2020

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Upcoming Benefits Compliance COVID-19 Weekly Update and FAQs Webinar Registration

July 20, 2020

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IRS Requires W-2 Reporting on FFCRA Leave

July 20, 2020

On July 8, 2020, the IRS released Notice 2020-54 providing guidance on W-2 reporting obligations related to qualified paid leave under the Families First Coronavirus Response Act (FFCRA). As background, the FFCRA requires employers with fewer than 500 employees to provide paid leave in certain circumstances related COVID-19 through the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. (For additional information on the paid leave provisions of the FFCRA, see our prior Compliance Corner article from March 31, 2020, “Families First Coronavirus Response Act Passed and Agencies Provide Related Guidance”).

Per the guidance, employers will be required to report the amounts of paid leave either on Form W-2, Box 14, or on a separate statement. Further, the IRS explains that if a separate statement is provided and the employee receives a paper W-2, then the statement must be included with the W-2 provided to the employee. Similarly, if the employee receives an electronic W-2, then the statement must be provided in the same manner and at the same time as the electronic W-2.

This required reporting provides employees who are also self-employed with information necessary for properly claiming qualified sick leave equivalent or qualified family leave equivalent credits under the FFCRA. To that end, the employer may provide additional information as part of the instructions (Notice 2020-54 provides model language) about qualified paid leave wages and explain that these wages may limit the amount of the credits to which the employee may be entitled with respect to any self-employment income.

Employers providing qualified paid leave under the FFCRA should be aware of this new requirement and confirm compliance with any payroll vendors.

IRS Notice 2020-54

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COVID-19 - State Leave Provisions: New York

July 10, 2020

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IRS Announces New Guidance for Section 125 Cafeteria Plans and Related High Deductible Health Plans, and ICHRAs

May 13, 2020

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Benefits Compliance FFCRA Flowchart

Last updated on May 07, 2020

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DOL Issues COVID-19 Relief via Certain Notice Extensions for Employee Benefit Plans

May 01, 2020

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COVID-19 State Leave Provisions: New Jersey

April 23, 2020

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