Tag: FFCRA

FFCRA Paid Leave Extension Until September 30, 2021 with Tax Credits

If you are a private employer with under 500 employees, were you aware you can voluntarily extend FFCRA paid leave from April 1 through September 30, 2021 and still receive a tax credit?

This is now allowed under the American Rescue Plan Act (“ARPA”), which was enacted on March 11, 2021.

However, be cautious. ARPA changes the rules for Emergency Paid Sick Leave (“EPSL”) and Emergency FMLA Extension (“EFMLA”). If these rules are not followed, no tax credit will be available.

Highlights of these changes are below.

Under the EPSL, in addition to the previous 6 reasons for leave, you must allow leave for 3 more reasons, namely:

  • When the employee is seeking or awaiting results of a COVID-19 test or diagnosis;
  • When the employee is obtaining a COVID-19 vaccine;
  • When the employee is recovering from an injury, disability, illness, or condition related to the COVID-19 vaccine.

EPSL also includes a fresh 10-day bank of leave effective April 1, 2021.

Under the EFMLA, which previously was limited to leave needed to care for children due to COVID-19 related school and place of care closures or unavailable care providers, will now include “all” of the EPSL reasons for leave, including the 3 additional reasons.

EFMLA also gets rid of the first 10 days of unpaid leave, starts paid leave immediately, and increases the maximum paid leave over 12 weeks from $10,000 to $12,000.

Additionally, both EPSL and EFMLA provide new non-discrimination rules, stating that tax credits are not available if employers discriminate in favor of highly compensated individuals, full-time employees, or employees based on tenure.

Questions arising include whether employers can pick and choose which parts of this voluntary FFCRA extension to apply.

  • Can we extend paid sick leave without the fresh 10-day bank?
  • Can we extend either EPSL or EFMLA without the new reasons?
  • Can we extend EPSL but not the EFMLA (or vice versa)?

Given the wording of ARPA, picking and choosing whether to apply the new reasons for leave or the fresh 10-day bank does not appear to be an option. Strict compliance is required.

However, whether an employer can extend that EPSL but not the EFMLA (or vice versa) is not as clear. While it appears to be allowable, we are anxiously awaiting updated government guidance and clarification.

In the meantime, if you intend on providing FFCRA paid leave starting April 1st, be prepared to apply it with an “all or nothing” approach.

As you are well aware, the law and guidance are rapidly evolving in this area. Please check with your Fraser Trebilcock attorney for the most recent updates.

Fraser Trebilcock is committed to providing you valuable information. Please watch for upcoming alerts on these and other topics.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.

New York Federal Court Strikes Down Key Provisions of FFRCA Final Rule

In response to a lawsuit by the State of New York, a New York federal district court judge struck down aspects of a U.S. Department of Labor (“DOL”) final rule (the “Rule”) providing guidance on interpretations of the Families First Coronavirus Response Act (FFCRA). The court’s ruling, which was made on August 3, 2020, strikes down the Rule’s “work availability” requirement, the “health care provider” definition, portions of the employer consent requirement for intermittent leave, and the advance documentation requirements for taking FFCRA leave.

It is unclear whether this decision applies only to New York or on a nationwide basis. An appeal of the decision to the U.S. Court of Appeals for the Second Circuit is expected.

Background

The FFCRA, which was enacted on March 18, 2020, requires employers with fewer than 500 employees to provide paid leave due to certain circumstances related to COVID-19 through two separate provisions: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”).

The EPSLA applies to virtually all private employers with fewer than 500 employees and to virtually all public agencies employing one or more employees. Under section 5102(a) of the EPSLA, employers shall provide employees with paid sick time if they are unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19;
  3. The employee has COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to quarantine or isolation or advised to self-quarantine as described in paragraphs (1) or (2) above;
  5. The employee is caring for his/her child if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; and
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Pursuant to the EFMLEA, which is a temporary amendment to the Family and Medical Leave Act (FMLA), eligible employees (those employed for 30 calendar days or longer) receive up to 12 workweeks of leave to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, due to COVID-19 precautions.

On April 1, 2020, the DOL issued the Rule implementing and interpreting the FFCRA. On April 14, New York filed a complaint for declaratory and injunctive relief against the DOL and the Secretary of Labor in the U.S. District Court for the Southern District of New York, and moved for summary judgment.

Work Availability Requirement Under the FFCRA

The Rule clarified that employees are not entitled to paid leave under the FFCRA if their employers “do not have work” for them to do. This “work availability” requirement was significant because, as the district court explained, COVID-19 has caused the temporary shutdown or slowdown of many businesses nationwide, resulting in a decrease in work available to employees.

In its complaint, New York asserted that “[t]he Final Rule imposes a new ‘work availability’ requirement that permits employers to deny their workers emergency family leave or paid sick leave, with no statutory basis.” The DOL argued that the Rule is consistent with the statute because employees are not “unable to work (or telework)” (due to one of six reasons listed above) if their employer has no work available for them to perform.

The Court disagreed, concluding that the work availability requirement exceeded the DOL’s authority because it applied only to three of six qualifying reasons for EPSLA leave, which the court found inconsistent with the language of the FFCRA. The court also found the DOL’s “barebones explanation” for the work availability requirement to be “patently deficient,” particularly in light of its “enormously consequential” impact of narrowing the scope of the FFCRA.

Definition of “Health Care Provider”

The FFCRA permits employers to exclude a “health care provider or emergency responder” from paid leave benefits. New York argued that the Rule’s definition of a “health care provider” exceeds the DOL’s authority under the FFCRA. The DOL defined “health care providers” as employees of a broad group of employers, including, in part, anyone employed at “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institutions, Employer, or entity.”

The court determined that the FFCRA “unambiguously forecloses” the DOL’s definition. The court found the definition to be “vastly overbroad” because it included individuals whose roles bore “no nexus whatsoever” to the provision of healthcare services and “who were not even arguably necessary or relevant to the healthcare system’s vitality.”

Intermittent Leave Provisions

The Rule permits employees to take leave intermittently (i) upon agreement between the employer and employee and (ii) only for a subset of qualifying conditions. New York took issue with both aspects of the Rule. The court upheld the DOL’s limitation of leave to qualifying reasons that are not logically correlated with a higher risk of viral infection. However, the court determined that the DOL “utterly fails to explain why employer consent is required for the remaining qualifying conditions.” Therefore, the district court vacated the requirement for employer consent.

Documentation Requirements

New York also challenged the Rule’s requirement that employees submit to their employer, prior to taking FFCRA leave, documentation explaining their reason for leave, the duration of leave, and, to the extent relevant, the authority for the isolation or quarantine order qualifying them for leave.

The district court noted that the FFCRA contains notice requirements but no documentation requirement for taking leave. It concluded that the requirement that employees furnish documentation in advance of leave imposed different and more onerous standards inconsistent with the FFCRA’s unambiguous notice provisions. The district court stated: “The documentation requirements, to the extent they are a precondition to leave, cannot stand.”

Conclusion

As noted above, it is unclear whether this decision applies only to New York or has nationwide impact. We will continue to monitor and keep you informed as to further developments, which could include an appeal of the decision or new guidance being issued by DOL. If you have any questions about this case, or FFCRA issues more broadly, please contact your Fraser Trebilcock attorney.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

New Guidance for Employers on W-2 Reporting for Sick and Family Leave Wages Paid Pursuant to the Families First Coronavirus Response Act

On July 8, 2020, the Internal Revenue Service (“IRS”) and the U.S. Department of Treasury (“Treasury”) released guidance to employers regarding the requirement to report the amount of qualified sick leave wages and qualified family leave wages paid to employees under the Families First Coronavirus Response Act (“FFCRA”). The guidance was provided in Notice 2020-54 (the “Guidance”).

Background

The FFCRA, which was enacted on March 18, 2020, requires employers with fewer than 500 employees to provide paid leave due to certain circumstances related to COVID-19 through two separate provisions: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”).

The EPSLA applies to virtually all private employers with fewer than 500 employees and to virtually all public agencies employing one or more employees. Under section 5102(a) of the EPSLA, employers shall provide employees with paid sick time if they are unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19;
  3. The employee has COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to quarantine or isolation or advised to self-quarantine as described in paragraphs (1) or (2) above;
  5. The employee is caring for his/her child if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; and
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

An employee who is unable to work or telework for reasons related to COVID-19 described in (1), (2), or (3) above is entitled to paid sick leave at the employee’s regular rate of pay or, if higher, the federal minimum wage or any applicable state or local minimum wage, up to $511 per day and $5,110 in the aggregate. An employee who is unable to work or telework for reasons related to COVID-19 described in (4), (5), or (6) above is entitled to paid sick leave at two-thirds the employee’s regular rate of pay or, if higher, the federal minimum wage or any applicable state or local minimum wage, up to $200 per day and $2,000 in the aggregate.

Pursuant to the EFMLA, expanded FMLA leave applies to employees who have been employed at least 30 days by employers who employ fewer than 500 employees (and public agencies) if those employees are unable to work (or telework) because they need to care for their children due to the closure of schools or unavailability of day care due to a government declared COVID-19 public health emergency. The first 10 days of the 12-week job-protected leave is unpaid. However, subsequent days must be paid leave in an amount of not less than two-thirds of regular pay, capped at $200 per day with a maximum cap of $10,000 per employee.

Form W-2 Reporting

Pursuant to the Guidance, employers must separately state the total amount of qualified sick leave wages paid pursuant to paragraphs (1), (2), or (3) of section 5102(a) of the EPSLA, qualified sick leave wages paid pursuant to paragraphs (4), (5), and (6) of section 5102(a) of the EPSLA, and qualified family leave wages paid pursuant to the EFMLEA.

With respect to paid sick leave under the EPSLA, in addition including qualified sick leave wages in the amount of wages paid to the employee reported in Boxes 1, 3 , and 5 of Form W-2, such amounts must be separately reported either in Box 14 of Form W-2 or on a separate statement. In labeling wages paid for reasons described in paragraphs (1), (2), or (3) of section 5102(a) of the EPSLA, employers must use the following (or similar) language: “sick leave wages subject to the $511 per day limit.” For wages paid for reasons described in paragraphs (4), (5), or (6) of section 5102(a) of the EPSLA, employers must use the following (or similar) language: “sick leave wages subject to the $200 per day limit.”

When reporting family leave wages under the EFMLEA, in addition to including such wages in the amount of wages paid to the employee reported in Boxes 1, 3, and 5 of Form W-2, employers must separately report to the employee the total amount of qualified family leave wages paid in either Box 14 of Form W-2 or on a separate statement. In doing so, employers must use the following (or similar) language: “emergency family leave wages.”

According to the Guidance, if a separate statement regarding sick leave wages and/or family leave wages is provided to the employee and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 provided to the employee. If the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.

Model Language for Instructions

The Guidance provides model language that employers may include for instruction to employees related to wages reported in Box 14 of Form W-2 or in a separate statement:

“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:

  • Sick leave wages subject to the $511 per day limit because of care you required;
  • Sick leave wages subject to the $200 per day limit because of care you provided to another; and
  • Emergency family leave wages.

If you have self-employment income in addition to wages paid by your employer, and you intend to claim any qualified sick leave or qualified family leave equivalent credits, you must report the qualified sick leave or qualified family leave wages on Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals, included with your income tax return and reduce (but not below zero) any qualified sick leave or qualified family leave equivalent credits by the amount of these qualified leave wages. If you have self-employment income, you should refer to the instructions for your individual income tax return for more information.”

Conclusion

The law and guidance regarding employer requirements related to wages for sick leave and family leave are rapidly evolving. We will continue to keep you informed of new developments. Please contact your Fraser Trebilcock attorney with any questions you may have about your obligations.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Client Alert: COVID-19 Group Health Plan Service & Notification Requirements

On April 11, 2020, the Departments of Labor, Health and Human Services, and Treasury (Departments) jointly released frequently asked questions (FAQs) regarding health care coverage issues surrounding the implementation of the FFCRA and the CARES Act. See Joint FAQs.

Notably, the Departments maintain that the FAQs are a statement of policy and are effective immediately.

The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020 and requires health plans and insurers to provide certain items and services related to diagnostic testing for detection of SARS-CoV-2 or the diagnosis of COVID-19 without cost sharing or prior authorization from March 18, 2020 and during the applicable emergency period. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was enacted on March 27, 2020 and broadened the range of diagnostic items and services that plans and issuers must cover. These FAQs represent the Departments’ approach to assist employers, issuers, providers and other stakeholders to come into compliance as well as to help families understand the new laws.

Applicable Plans

The FFCRA and CARES Act apply to group health plans and health insurance issuers offering group or individual health insurance coverage. The term “group health plan” includes both insured and self-insured group health plans, whether they are ERISA plans, non-federal governmental plans or church plans. The term “individual health insurance coverage” includes individual market coverage through or outside of an Exchange. It also includes student health insurance coverage.

However, short-term, limited-duration insurance is not subject… neither are excepted benefits or plans covering less than two employees (such as retiree-only plans).

Duration of Compliance

The FFCRA provisions are effective March 18, 2020 and continue during the public health emergency.

Required Items & Services

Q3-Q5 address the type of items and services that are required under the FFCRA and CARES Act, including:

  • in vitro diagnostic test (meeting certain requirements) for the detection of SARS-CoV-2 or the diagnosis of COVID-19, and the administration of such tests; this includes serological tests for COVID-19, which are used to detect antibodies against the SARS-CoV-2 virus; and 
  • items and services furnished to an individual during health care provider office visits (including in-person and telehealth visits), urgent care center visits, and emergency room visits that result in an order for or administration of an in vitro diagnostic product, but only to the extent the items and services relate to the furnishing or administration of the product or to the evaluation of the individual for purposes of determining the need of the individual for such product.

The required benefits must be furnished during office visits. The Departments construe the term “visit” broadly and include non-traditional care settings, such as drive-through screenings. See Q8.

Additionally, a recent IRS Notice issued just days ago states that testing and treatment for COVID-19 includes “the panel of diagnostic testing for influenza A & B, norovirus and other coronaviruses, and respiratory syncytial virus (RSV) and any items or services required to be covered with zero cost sharing under … the CARES Act.” See IRS Notice 2020-29.

Notice 2020-29 also separately expands Notice 2020-15 to provide that reimbursement of expenses for testing and treatment of COVID-19 incurred on or after January 1, 2020 will not result in a high deductible health plan (HDHP) to fail to be an HDHP under Code section 223.

Cost-Sharing Requirements

Cost-sharing requirements (including deductibles, copayments and coinsurance), prior authorization requirements, and medical management requirements cannot be imposed for benefits that must be provided under section 6001(a) of the FFCRA, as amended by section 3201 of the CARES Act.

With regard to out-of-network providers, Q7 of the Joint FAQs provides that plans and issuers are required to provide coverage for such items and services even if providers have not agreed to accept a negotiated rate as payment in full. In such case, a cash price equal to the service as listed b the provider on a public internet website must be provided (or another amount may be negotiated for less than such cash price).

Summary of Benefits and Coverage (SBC) Requirements & Mid-Year Changes

While material modifications to the SBC normally require that the plan provide 60 days advance notice, the Departments state that they will not take enforcement action regarding greater coverage of COVID-19 diagnosis and/or treatment, as long as plans and issuers provide notice of the changes as soon as reasonably practicable. This non-enforcement policy applies only while the COVID-19 public health emergency and/or COVID-19 national emergency declaration is in affect. Coverage changes beyond this emergency period must fully comply.

State Standards

States may impose additional standards or requirements on health insurance issuers regarding COVID-19 diagnosis or treatment, as long as they do not prevent application of a federal requirement.

Excepted Benefits

The FAQs describe types of excepted benefits, including employee assistance programs (EAPs), and provide that COVID-19 diagnosis and testing offered under an EAP will not jeopardize that EAP’s excepted benefit status while the COVID-19 public health or national emergency declaration is in effect. Additionally on-site medical clinics offering COVID-19 diagnosis and testing will remain excepted benefits.

Telehealth & Remote Care Services

The Departments maintain that widespread use of telehealth and other remote care services are essential to fight the ongoing COVID-19 pandemic, and they strongly encourage all plans and issuers to promote and notify individuals about these services.

The CARES Act has already offered flexibility with regard to high deductible health plans (HDHPs) and health savings accounts (HSAs)… stating that use of telehealth and other remote care services prior to the deductible being met will not jeopardize HDHP status, even if their use is not for COVID-19 related reasons. Moreover, individuals using telehealth or other such services outside of the HDHP may also still contribute to HSAs. The CARES Act amended Internal Revenue Code section 223(c) in this respect and will remain in effect from March 27, 2020 and for plan years beginning on or before December 31, 2021.

However, subsequently released IRS Notice 2020-29, mentioned above, provides that telehealth and other remote care services provided on or after January 1, 2020 (and applying for plan years beginning on or before December 31, 2021) will not affect HDHP status, expanding on the CARES Act which previously applied this rule effective as of March 27, 2020.

Similar to guidance previously stated in these FAQs, plans and issuers who add benefits (or reduce or eliminate cost sharing) for telehealth and other remote care services will temporarily be deemed not to violate notice of material modifications requirements or mid-year change restrictions. The Departments will apply the same non-enforcement policy as described above but only during the emergency declaration and only as long as notice is provided as soon as reasonably practicable.

Participant Communication and Lawsuits

Please keep in mind this is a Department non-enforcement policy and does not protect employers and plans from participant lawsuits.

As you are well aware, the law and guidance are rapidly evolving in this area. Please check with your Fraser Trebilcock attorney for the most recent updates.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.

Employers Stay Informed: FFCRA Temporary Rule Issued – New FFCRA Guidance & Requirements Continue to Impact Compliance

While COVID-19 continues to attack our nation, businesses face the ongoing struggle with managing workforces and finding a game plan that is morally and fiscally responsible. New programs and laws are constantly being issued and updated which makes compliance matters all the more difficult.
 
With respect to the Families First Coronavirus Response Act (FFCRA), affecting nearly all private employers with fewer than 500 employees, as well as public employers, the Departments are continually updating existing guidance sources and issuing new ones. 
 
DOL Questions & Answers
 
Over the past week, the Department of Labor’s Q&As on the FFCRA’s provisions for Emergency Paid Sick Leave Act (EPSLA) and Emergency FMLA Expansion Act (EFMLEA) have been updated and/or modified at least 3 times. Answers which have changed include 7, 15, 16, and 31-33. For the most recent version, see: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
 
IRS FAQs Relating to Employer Tax Credits
 
The IRS has now issued guidance on how to calculate the tax credits, how to claim them, how to calculate the allocable health insurance costs, the method used to request advance payment, and what documentation and substantiation requirements must be followed. These tax credits will offset the employers’ required cost to provide FFCRA paid leave, as well as the allocable share of health care costs and the employer’s portion of Medicare. See: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
  • Questions 1-19: general information.
  • Questions 20-24: determining the amount of the tax credits for Paid Sick Leave.
  • Questions 25-30: determining the amount of the tax credits for FMLA Expansion leave.
  • Questions 31-36: how to determine the amount of allocable qualified health plan costs.
  • Questions 37-43: how to claim the credits.
  • Questions 44-46: employer substantiation requirements.
  • Questions 47-48: describe time periods (including leave taken before December 31, but paid later).
  • Questions 49-51: special issues of taxation and deductibility.
  • Questions 52-56: other special issues for employers including interaction with other tax credits, use of third-party payers, etc).
  • Questions 57-59: special issues for employees.
  • Questions 60-66: self-employed issues.
IRS Advance Tax Credit Form & Instructions
 
Additionally, IRS tax forms and instructions were released to apply for advance credits in cases where retention of allowed withholdings is not enough to cover the cost of paid leave:
Temporary Regulations
 
Finally, temporary regulations were released which modify numerous previous FFCRA provisions and shed light on others.  See https://www.dol.gov/agencies/whd/ffcra 

On April 1, 2020, the U.S. Department of Labor announced new action regarding how American workers and employers will benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA).

FFCRA helps the United States combat the workplace effects of COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus. The Department’s Wage and Hour Division administers the paid leave portions of the FFCRA.

These temporary regulations are effective from April 1, 2020 through December 31, 2020 and cover, in detail:
  • Paid Leave Entitlements
  • Employee Eligibility
  • Employer Coverage
  • Intermittent Leave
  • Leave to Care for a Child Due to School or Place of Care Closure or Child Care Unavailability — Interaction between the EPSLA and the EFMLEA
  • Leave to Care for a Child Due to School or Place of Care Closure or Child Care Unavailability — Interaction between the EFMLEA and the FMLA
  • Employer Notice
  • Employee Notice of Need for Leave
  • Documentation of Need for Leave
  • Health Care Coverage
  • Multiemployer Plans
  • Return to Work
  • Recordkeeping
  • Prohibited Acts and Enforcement
  • Effect of Other Laws, Employer Practices, and Collective Bargaining Agreements
The regulations further explain and outline circumstances, as well as documentation requirements, for the six (6) qualifying reasons to provide paid sick leave under the EPSLA. Additionally, the regulations set forth options for intermittent leave; how to calculate the average regular rate; updates to many definitions, including son or daughter, school, and place of care; limits on the term “individual” for whom one may provide care; detailed record keeping requirements; as well as numerous other important information. 
 
Employers with fewer than 50 employees should also keep in mind that they may qualify for the small business exemption from the Emergency FMLA Expansion Act and/or the school closure/day care unavailability portion of the Emergency Paid Sick Leave Act. The details of how to qualify are set forth in the regulations. Additionally, employers with under 25 employees may not have to comply with the FMLA job restoration provisions if certain conditions are met. 

Here are some takeaways from the regulations:
  • EPSLA: Full-time employees are those normally scheduled to work 40 hours per workweek.  Anyone working under that is deemed part-time.  This will affect the number of hours (80 or less) of paid sick leave required under the EPSLA and the amount of the tax credit an employer is allowed.  If an employer provides an employee who works 30 hours a week with 80 hours of paid sick leave, the employer will not receive a tax credit for all 80 hours.
  • EPSLA Qualifying Reasons for Paid Sick Leave: Guidance and rationale is provided for the COVID-19 related qualifying reasons to take EPSLA, including discussion of shelter-in-place and stay-at-home orders, employees who are advised to self-quarantine, caring for an individual subject to the above, affirmative steps employees with COVID-19 symptoms such as dry cough or fever must take to seek a diagnosis, and others.
  • EPSLA Qualifying Reason: An “individual” for whom an employee cares for due to the COVID-19 reasons as set forth in the FFCRA is restricted to a person with which the employee has a relationship as further described under the regulations.
  • Child Care Provider: Child care provider is modified, in part, to include family members, friends or neighbors who regularly care for the child even if they are not compensated or licensed.
  • Son or Daughter: Son or daughter is expanded to include children 18 or older who are incapable of self-care due to a mental or physical disability.
  • Calculation of Leave and Pay:  Formulas and timelines are provided for how to calculate the amount of leave required, the amount of pay, and the average number of hours an employee was scheduled per day, especially for those with varying hours.
  • Unable to Work: Further details on how an employee must be unable to work or telework in order to claim FFCRA leave is explained.
  • Intermittent Leaves: Expanded information on intermittent leaves and when that may be allowed, which depends on whether the employee is working on-site or teleworking, as well as the reason for leave.
  • Exceptions from Employee: The definitions of “health care provider” and “emergency responder” are expanded for purposes of those employees for whom employers can exclude under the EPSLA and EFMLAEA and therefore will not be eligible for FFCRA leave.
  • Notice: Notice requirements are provided, including the prohibition of employers asking for more information beyond what is allowed in the temporary regulations.
  • Documentation: Detailed documentation requirements are provided depending on the leave requested. This is incredibly important as proper documentation is also required to receive the tax credits. 
  • Recordkeeping: Recordkeeping obligations are set forth, including that the employer is required to retain all documentation for four years, regardless of whether leave was granted or denied, and regardless if employee’s notice was oral or written.  Records must include how the paid leave was calculated, how health insurance was allocated, as well as numerous other information. 
  • Health Care Coverage: The requirement for employers to maintain health care coverage is described, including the employee’s right to reinstatement of coverage upon returning from leave.
  • Intersection of Leave Requirements: Guidance is provided regarding intersection of EPSLA and EFMLEA, EFMLEA and FMLA, as well as paid leave under FFCRA and other available paid time off.
  • Return to Work: EFMLEA return to work obligations are set forth.
  • Small Business Exemption (Under 50 Employees): The small employer exemption for employers with fewer than 50 employees is set forth, including requirements to qualify.  The exemption is only for purposes of EFMLEA and EPSLA leaves relating to schools and place of care closures or where a child care provider is unavailable for COVID-19 reasons.
  • Small Business Exemption (Under 25 Employees): Details of when the FMLA job restoration requirements may not apply to an employer with fewer than 25 employees are described.
  • Multiemployer Plans: Further information is provided regarding multiemployer plans.
  • Effect on Other Laws / Contracts: Provisions regarding the FFCRA’s effect on other laws, employer practices and collective bargaining agreements are set forth, including the sequencing of paid leave.
  • Prohibited Acts: FFCRA’s prohibitions as well as enforcement measures under both the EPSLA and EFMLEA are detailed.
Guidance regarding the FFCRA is continually updated and is evolving rapidly; however, this is a general outline of information currently available.  It may be prudent for employers to review their handbooks, policies, and plans as well as check administrative procedures and protocol to ensure compliance.
 
This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions. 

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

FFCRA: DOL Latest Guidance Alters Action Plans of Many Employers

After the passage of the Families First Coronavirus Response Act (FFCRA) and the initial round of Department of Labor (DOL) guidance issued last week, employers began developing action plans on how to deal with their workforce amid a continually changing landscape, including numerous State orders requiring schools and businesses to close and for individuals to “stay at home.”

The Emergency FMLA Expansion Act and the Emergency Paid Sick Leave Act (Acts) are being carefully considered, and employers are preparing to offer these benefits to employees in numerous situations.  For more detailed information on these Acts, which are set forth under the FFCRA, please see our previous Client Alert.

However, late last week, the DOL updated its initial list of 14 FAQs with an additional 23 new questions and answers.  The updated DOL guidance can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Moreover, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law on Friday which modifies certain provisions of the FFCRA.  These matters are set forth below.

EPSLA: Worksites Closing Due to Shelter In Place Orders Will Not Qualify for Paid Sick Leave

Under the Emergency Paid Sick Leave Act (EPSLA), one of the reasons an employer must provide employees with paid sick time is if they are unable to work (or telework) due to a need for leave because:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
With respect to recent “shelter in place” or “stay at home” orders issued by certain States, employers were preparing to offer leave when sending their employees home. However, late last week in its updated list of FAQs, the DOL clarified that if an employer closes its worksite and/or sends employees home for lack of work, even if due to State directives, paid sick leave will not be warranted.

Questions and Answers #23 and 24 state that if an employer closes its worksite, either before or after April 1, 2020 when the Acts become effective, leave under the Acts is not warranted during the period of closure. Significantly, it goes on to state:

This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.

Instead, employees are encouraged to contact their State workforce agency or unemployment insurance office to answer questions about eligibility.

Question and Answer #25 also states that paid sick leave or expanded family and medical leave already being provided will stop as of the date the employer closes its worksite.

Moreover, the DOL guidance addresses circumstances of employers who remain open but furlough employees due to lack of work.  That also does not qualify under the Acts. See Question and Answer #26:

If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave? 

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

Question and Answer #27 addresses what happens if a worksite closes and then later reopens. Leave may only be available when the worksite is open.

Question and Answer #28 discusses availability of leave for reduced hours. Again, not having enough work for an employee to do does not qualify; however, an employee who is unable to work his/her full schedule due to a COVID-19 qualifying reasons is entitled to leave under the Acts.

Employees Must be Unable to Conduct Work that Employers Have for Them To Do

The DOL guidance states that the employer must have work for employees to do, and the employee must be unable to work or telework for one of the COVID-19 specified reasons to be entitled to leave under the Acts. See Question and Answer #18:

What does it mean to be unable to work, including telework for COVID-19 related reasons?

You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.

If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.

Documentation Requirements for Leave Taken Under the Acts

While the Acts did not list any documentation or substantiation requirements for entitled leaves, the DOL provides guidance in Question and Answer #15:

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.

Question and Answer #16 sets forth the records that an employee must provide an employer.

Other DOL FAQ Highlights

The updated FAQs address numerous other circumstances, including:

  • Intermittent leaves under the Acts while teleworking
  • Intermittent leaves under the Acts while working at employer’s worksite
  • Continuation of group health plan coverage
  • Interaction of employer paid time off policies with leave rights under the Acts
  • Unavailability of tax credits for amounts employers pay in excess of the Acts’ requirements
  • Whether leaves under the Acts can be taken in conjunction with unemployment insurance
  • How employers who are part of a multiemployer collective bargaining agreement can satisfy their obligations under the Acts
Again, for the full DOL questions and answers, please see: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

How the CARES Act Affects Leave Entitlements under the FFCRA

The FFCRA was also modified slightly by the CARES Act, which was enacted on Friday, March 27, 2020. Changes include:

  • Under the FMLA Expansion Act, employees who have been employed for at least 30 calendar days by the employer are eligible for the leave if they have a qualifying need related to a public health emergency. The CARES Act adds a provision for rehired employees, including in the definition of “eligible employee” the following:
    • an employee who was laid off by that employer not earlier than March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer.
  • With respect to tax credits under the FMLA Expansion Act and the Emergency Paid Sick Leave Act, the CARES Act amends the FFCRA to provide for advancing credits, up to the amount of the tax credit allowed, calculated through the end of the most recent payroll period in the quarter. Forms and instructions regarding this advanced credit will be forthcoming.
FFCRA Poster Reminder

The DOL also updated its questions and answers regarding the FFCRA poster requirements. Specifically, it added guidance clarifying that the notice must be “posted” by April 1, 2020. See https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions.

Again, the poster can be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

As you are well aware, the law and guidance are rapidly evolving in this area. Please check with your Fraser Trebilcock attorney for the most recent updates.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

FFCRA: Required Employer Actions By April 1, 2020

Under newly issued guidance, the Department of Labor (DOL) has set the effective date of the FMLA Expansion Act and Emergency Paid Sick Leave Act (Acts) as April 1, 2020. This is one day earlier than anticipated. Employers must comply with these new laws from April 1 to December 31, 2020. For more information on these Acts, which are set forth under the Families First Coronavirus Response Act (FFCRA), please see our previous Client Alert.

Updated FFCRA Guidance

DOL News Release

Along with the updated guidance, the DOL issued a News Release outlining the compliance information being issued. See https://www.dol.gov/newsroom/releases/whd/whd20200324

As expected, the News Release verified that more guidance would be forthcoming:

The guidance announced today is just the first round of information and compliance assistance to come from WHD.

DOL Question and Answer

Additionally, the Wage and Hour Division of the DOL issued updates in a Question and Answer format. See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Highlights include the following information:

  • That the Acts are effective April 1, 2020 and are not retroactive.
  • How employers with fewer than 500 employees are impacted.
    • Two or more employers will be combined under the Fair Labor Standards Act (FLSA) joint employer test or the Family and Medical Leave Act (FMLA) integrated employer test.
  • That the Acts do not apply to private employers with 500 or more employees.
  • That small business exemptions will be addressed in forthcoming regulations.
  • How to count hours worked by a part-time employee, how to count overtime hours, and how to calculate the rate of pay.

DOL Fact Sheet for Employers

The following fact sheet for employers was also provided: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Nonenforcement Policy

The DOL issued Field Assistance Bulletin No. 2020-1 setting forth its nonenforcement policy for good-faith compliance with the Acts. Importantly, the nonenforcement policy will stem from March 18 through April 17, 2020. However, the DOL intends on fully enforcing the Acts and any violations thereunder after this stay is lifted. The Bulletin states, in pertinent part:

Enforcement Guidance 
The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts “reasonably” and “in good faith” when all of the following facts are present:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020,  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.
  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

If the public or private employer either (i) violates the Act willfully, (ii) fails to provide a written commitment to future compliance with the Act, or (iii) fails to remedy the violation upon notification by Department, the employee seeking payment, or a representative of that employee, including by making all affected employees whole as soon as practicable, the Department reserves its right to exercise its enforcement authority.

After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.
***
For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.

FFCRA Poster

Furthermore, the DOL has just released the required notice for employers to post. The poster can be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Accompanying FAQs answer some important questions. See https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. Highlights include:

  • The Acts require that the FFCRA notice must be posted in a conspicuous place on the employers premises where employees can see it.  However, for employees who are teleworking, employers can meet these requirements by mailing or emailing the notice.  The employer could also post the notice on an employee information internal or external website.
  • There is no requirement to post the notice in multiple languages (although the DOL is working on translations).
  • Laid off employees are not entitled to the notice.  It only must be provided to current employees, which includes newly hired employees.  Again, the Acts are effective from April 1 through December 31, 2020, so the notice requirements apply to any new employees hired within this time period.
  • Small employers under 50 employees must also post the notice, even if they intend on claiming an exemption.
  • This notice is issued on March 25, 2020.  Employers are advised to check the following website for updates:  https://www.dol.gov/agencies/whd

Interaction with State Law

Finally, employers should also keep in mind the interaction of the Emergency Paid Sick Leave Law with their own paid time off policies and state law requirements.

For example, employers with employees in Michigan must take into consideration Michigan’s Paid Medical Leave Act. One of the qualifying reasons for leave under this law is the “closure of the eligible employee’s primary workplace by order of a public official due to a public health emergency…” Unless the business is deemed essential under Michigan’s Executive Order 2020-21 and therefore allowed to stay open, the Michigan Paid Medical Leave Act will likely apply.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Client Alert: COVID-19 Related Guidance and Effect on Group Health Plans

The government is quickly issuing guidance to address the overwhelming concerns over the coronavirus pandemic and to cover testing and treatment of COVID-19. Below are highlights involving recent changes affecting group health plans.

FFCRA’s Health Provisions

This past Wednesday, March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law.  In part, the FFCRA requires coverage of testing for COVID-19. Specifically, group health plans (including grandfathered plans) and health insurance issuers offering group or individual health insurance coverage must provide coverage, without cost sharing or prior authorization or medical management requirements, for the following items and services:

  • Certain diagnostic products for the detection of SARS-CoV-2 or the diagnosis of the virus causing COVID-19 approved or authorized under certain provisions of the Federal Food, Drug and Cosmetic Act; and
  • Items and services furnished to an individual during health care provider office visits, urgent care and emergency room visits relating to furnishing or administration of the above diagnostic products or to evaluate that such individual needs the product.

These requirements are effective on March 18, 2020 for services and items furnished on or after March 18, 2020.

High Deductible Health Plans, HSAs, and COVID-19

The IRS has issued Notice 2020-15 to address concerns over medical expenses and testing relating to COVID-19. The link to the Notice can be found here: https://www.irs.gov/pub/irs-drop/n-20-15.pdf

Specifically, the Notice provides that a qualifying high deductible health plan (“HDHP”) with accompanying health savings accounts (“HSAs”) will not lose its qualifying HDHP status if it provides health benefits associated with testing for and treatment of COVID-19 prior to the deductible being met. IRS Notice 2020-15 states, in relevant part:

Part of the response to COVID-19 is removing barriers to testing for and treatment of COVID-19. Due to the nature of this public health emergency, and to avoid administrative delays or financial disincentives that might otherwise impede testing for and treatment of COVID-19 for participants in HDHPs, this notice provides that all medical care services received and items purchased associated with testing for and treatment of COVID-19 that are provided by a health plan without a deductible, or with a deductible below the minimum annual deductible otherwise required under section 223(c)(2)(A) for an HDHP, will be disregarded for purposes of determining the status of the plan as an HDHP.

Therefore, an employee participating in such a HDHP will not be disqualified from contributing to HSAs merely because the plan provided no or low-deductible health benefits for testing and treatment of COVID-19.

Catastrophic Plans and COVID-19

The Department of Health and Human Services (“HHS”) has issued guidance stating that, although catastrophic plans may not provide coverage of essential health benefits before the deductible being met (except as otherwise required), it will not take enforcement action against any health insurance issuer that does so for the purposes of diagnosing and/or treating COVID-19:

To facilitate the nation’s response to COVID-19, until further notice, HHS will not take enforcement action against any health insurance issuer that amends its catastrophic plans to provide pre-deductible coverage for services associated with the diagnosis and/or treatment of COVID-19.

Please see https://www.cms.gov/CCIIO/Resources/Files/Catastrophic-Coverage-of-COVID-19.pdf.

Needless to say, the law and guidance are rapidly evolving in this area. Please check with your Fraser Trebilcock attorney for the most recent updates.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.