i Table of contents 95

COVID-19 Employer Playbook

The COVID-19 Employer Playbook provides an easy to read, comprehensive overview of key issues facing employers during the COVID-19 pandemic.

Contents		2
Introduction		3
No March Madness		3
The Employer Playbook		3
The Crystal Ball		3
Your Team at Vita		3
COVID-19 Impact		4
Purpose of the Employer Playbook		4
Continually Updated		4
Not Legal Advice		4
Essential Action List for Employers		5
Overview		5
Decisions to Make		6
Decisions to Make		6
1. Communication Strategy		6
2. Retirement Plan Provisions		6
3. Benefit Plan Provisions (Self-Funded Employers)		7
4. Student Loan Provisions		7
Notification and Communication		8
5. Sick Time and Paid Family Leave Notice		8
6. Courtesy Plan Change Notice		8
7. COBRA Premium Grace Period Extension		9
Administrative Items		9
8. Set up New Payroll Codes		9
9. Payroll Credit Reporting and Process		10
10. Pre-Tax Plan – A Non-Decision		10
11. Formal SMM Distribution		11
12. Retirement Plan Administration Issues		11
13. Retirement Plan Document Amendments		12
Families First Coronavirus Response Act (FFCRA)		13
Summary		13
Free COVID-19 Testing		14
Mandate to Cover Testing		14
No Cost Share		14
What is Included?		14
Impacted Plans		14
Are Insurance Plans Responding Quickly?		14
What about HDHP/HSA Plans?		14
CARES Act Expansions		14
Effective Date and Duration		14
Paid Sick Time for Employees		15
Mandate for Paid Sick Time		15
Who is Subject?		15
Eligibility for Paid Sick Time		15
Sick Time Maximum Benefit		15
If No Work Available, Then No Sick Leave		16
If Work at Home Available, Then No Sick Leave		16
Self-Quarantine and Work at Home		16
Employee Experiencing Symptoms or Seeking Diagnosis		16
Sick Time to Care for Another Person		17
Sick Time to Care for Son or Daughter		17
Must it be Additional Sick Time?		17
Sequencing of Sick Time		18
”Topping Off” Paid Sick Time with Other Sick Leave		18
No Carry Over, No Payout		18
No Accrual of Sick Time		18
No Double Dipping on Sick Time by Employees		18
No Restrictions on Sick Time by Employers		18
How Are Employees Counted?		18
Calculation of Hours for Part Time Employees		18
Employer Notices and Procedures		19
No Requirement to Find Replacement Worker		19
Must OT be Included in Pay?		19
Small Employer Exemption		19
Healthcare Provider Exemption		19
500 Employee Threshold Calculation		19
50 Employee Threshold Calculation		20
No Retaliation		20
Effective Date and Duration		20
Enforcement Grace Period		20
Expanded FMLA - Paid Family Leave		21
Mandate for Paid Family Leave		21
Who is Subject?		21
Eligibility for Paid Leave		21
Paid Leave Benefit Amount		21
Duration		21
Who is a Son or Daughter?		21
Benefits Continuation		21
Employer Notices and Procedures		21
How is Pay Calculated?		22
Integration with Teleworking		22
Can Paid Leave be Taken Intermittently?		22
COVID-19 Paid Leave and Regular FMLA Integration		22
”Topping Off” Paid Leave with Other PTO		22
More Leave Expected		22
Structure of the Law		22
75-Mile Radius Rule		23
Small Employer Exemption		23
Healthcare Provider Exemption		23
500 Employee Threshold Calculation		23
50 Employee Threshold Calculation		23
No Retaliation		23
Effective Date and Duration		23
Enforcement Grace Period		23
Federal Judge Strikes Down Key Limitations on FFCRA Paid Leave		24
Overview		24
What Does This Mean?		24
A Little History on the FFCRA and the DOL Regulations		24
Dramatic Expansion		24
Four Key Aspects of the Regulations Invalidated		25
The Future		26
The Intersection of Paid Sick Time and Paid Family Leave		27
Overview		27
Can Use Both Sick Time and Paid Leave		27
12-Week Maximum is Combined		27
Paid Sick Time is Separate		27
Employee Notice Procedures		27
Documentation		28
Health Care Coverage		29
Job Protection and Return to Work		29
What About Layoffs?		29
Keep Those Records!		29
Tax Credits for Employers		30
Reimbursement for Required Paid Leave Benefits		30
Tax Credits – Paid Sick Leave		30
Tax Credits – Paid FMLA Leave		30
Tax Credits – Health Plan Coverage		30
Tax Credit Mechanism		30
Insufficient Tax Credits for Reimbursement		30
Timing of Credit		31
No Double-Dipping on Tax Credits		31
Wages and Taxation		31
More Details and Guidance		31
Effective Date and Duration		31
Coronavirus Aid, Relief, and Economic Security (CARES) Act		32
Overview		32
Provisions Directly Impacting Employer Benefit Plans		33
Retirement Plan Provisions		33
OTC Items No Longer Need Prescription		34
Menstrual Products Now Pre-tax Eligible		34
Safe Harbor for Telehealth on HDHP Plans		34
Free COVID-19 Services		34
Other Provisions Impacting Employers		34
Tax-Free Employer Repayment of Student Loans		34
Emergency Grants		34
Charges for COVID-19 Testing		35
Paycheck Protection Program		35
Overview		35
Eligibility		35
Loan Amount		35
Loan Forgiveness		36
New Flexibility for Loan Forgiveness		37
Loan Payments (If Not Forgiven)		37
No Personal Guarantee		37
Application Procedure		37
Treasure Department Attestation Requirement		38
Additional Information		38
Relief for Big Businesses		38
Tax Credits for All Businesses		38
Relief for Existing SBA Loans		38
Delay of Payment of Employer Payroll Taxes		38
Employer Tax Credit Availability		39
Employee Retention Credit for Employers Closed Due to COVID-19		39
General Provisions of the Legislation		39
Individual Recovery Payments		39
Filing and Payment Extensions		40
Above the Line Charitable Contribution Deduction		40
Public Health Provisions		40
Safety Net Programs		41
Privacy Issues		42
HIPAA Privacy Issues		42
Provider Electronic Communication Rules Relaxed		43
Summary		43
In English, Please		43
Which Technologies can be Used?		43
Why?		43
Does it Apply to COVID-19 Patients Only?		43
How is this Relevant for Employers?		43
Is Anything Else Relaxed Under HIPAA?		43
COVID-19 and PHI		44
Covered Entity Definition Reminder		44
What is PHI?		44
Is a COVID-19 Diagnosis PHI?		44
Still, Don’t Blab		44
Employees May Share		44
Health and Welfare Plan Issues		45
New COVID-19 Rules for §125 Plans, FSAs, HRAs, COBRA		45
New Guidance		45
§125 Mid-Year Election Changes		46
Overview		46
Newly Allowed Changes		46
Employer Choice		46
Avoid Adverse Selection		46
Impact on COBRA		46
Effective Date		46
Employer Action Considerations		47
FSA Grace Period Extension		47
Overview		47
Timing		47
Impact on HSA Contributions		47
Employer Choice		47
Employer Action Considerations		47
Health FSA Carryover Amount Increased		48
Overview		48
Timing		48
Employer Choice		48
Employer Action Considerations		48
Clarification of COVID-19 HDHP Guidance		48
Prior Guidance		48
Clarification		48
Individual Coverage Health Reimbursement Arrangement (ICHRA)		48
Overview		48
Clarification		48
Employer Action Considerations		49
Decisions		49
Plan Administration		49
Notice and Communication		49
Plan Document Amendment		49
Insurance Policy Alignment		49
Potential Health FSA Losses		49
Health FSA and HRA Claims Submission Deadlines for 2019 Plan Year		49
Overview		49
Deadline Extensions		50
Examples		50
Applied to Which Plans?		50
Employer Action Considerations		50
COBRA Premium Election and Grace Period Extensions		51
Overview		51
Employer Action Considerations		51
What to Expect		51
Relaxed Rules for Welfare Plan Administration		51
New Guidance		51
Outbreak Period Defined		52
Deadline Extensions		52
Furnishing Notices		52
Exchange Enrollment		53
Forms 5500 – No Extension for Calendar Year Plans		53
Administrative Challenges		53
Timing Uncertainty		53
Relaxed Rules for Retirement Plan Administration		53
New Guidance		53
Outbreak Period Defined		53
Relief for Plan Sponsors		54
Plan Loans and Distributions		54
Contributions and Loan Repayments		54
Retirement Benefit Claims		54
Blackout Notices		54
Fiduciary Compliance		55
Form 5500		55
FAQs for Participants and Beneficiaries		55
Careful Application of Relaxed Rules		55
Benefit Plan Terminations		55
Layoff		55
Furlough		55
Reduction in Hours		56
Life and Disability Policies		56
Take COBRA Seriously		56
Nuances of Termination		57
Overview		57
ACA Stability Period		57
FMLA Leave		57
Personal Leave		57
Benefits Contributions While on Leave		57
Pay for Exempt Employees		58
Basic Rules		58
As Applied to the COVID-19 Situation		58
General Rules for Pre-tax Elections		58
The Irrevocability Rule		58
So, When Can Elections be Changed?		59
Dependent Care Election Changes		59
What’s Happening?		59
General Rule		59
No School for Kids. Can my Employees Change their Elections?		59
What about Current Balances?		59
Will they be able to Change Back?		60
What about the Health FSA?		60
Special Open Enrollments		60
What is the Purpose?		60
How Does it Work?		60
Notification to Employees		60
Are All Employees Eligible?		60
Are Contributions Pre-tax?		60
Why are Carriers Doing This?		61
Benefits Not Subject to Section 125 Rules		61
Employee HSA Contributions		61
Commuter Benefits		61
Safe Harbor for HDHP/HSAs		61
Free COVID-19 Testing		61
First Dollar Telehealth Benefits		61
HSA Contributions Protected		61
Telehealth Promotion		61
Guidance for Insurers		61
Can They Do This?		62
What about Self-Funded Plans		62
What Action is Necessary?		62
Pharmacy Concerns		62
Employee Rx Concerns		62
Rx Industry Response		62
Ensuring Drug Availability		62
Prior Authorization Relaxed		62
Increasing Supplies of Specialty Medications		63
Proactive Communication		63
Mail Order Reminders		63
Premium Grace Period Extensions		63
California		63
Other States		63
Self-Insured Plans		63
COBRA Considerations		64
Premium Extensions		64
Subsidies		64
Nondiscrimination		64
Furlough and COBRA		64
Short-Term Disability Issues		65
Medical Certification Difficulty		65
Out-of-the-Box Ideas		65
Coordination with Carriers		65
Life and Disability Issues		65
Furloughed Employees		65
Terminated Employees		65
SMM/SPD Update Requirements		66
Material Modification		66
Required Notification		66
Timing		66
Carrier Materials		66
Lions and Tigers and Premiums, Oh My!		66
Health Insurance Premiums		66
Life and Disability Insurance		67
The Future		67
Premium Rebates and Premium Holidays		68
Lower Health Insurance Claims Experience		68
Health Carrier Responses		68
Employer Responsibility		68
Employee Contributions		68
COBRA Premiums		69
Non-Benefits Employment Issues		70
I-9 Documentation and Remote Work		70
Cybercrime Amidst COVID-19		71
What’s Happening?		71
FBI Notice Overview		71
Security Alerts		72
Major Disaster Leave-Sharing Plans		73
How Does it Work?		73
Plan Criteria		73
How is it Taxed?		73
Can Leave be Donated Now?		73
Qualified Disaster Relief Payments		74
How Does it Work?		74
Potential Qualified Payments		74
Plan Criteria		74
How is it Taxed?		74
Can Relief Payments be Made Now?		74
COVID-19 Diagnosis Presumed Contracted at Work		75
Overview		75
The Details		75
Presumptive Benefits		75
All Carriers Impacted		75
Carrier and Coverage Issues		76
Carrier Response to COVID-19		76
A Caution About Resources and Fact Sheets		77
What Carriers Are Doing – Medical		77
Aetna		77
Anthem		77
Blue Shield		77
Cigna		77
Kaiser		78
United Healthcare		78
What Carriers Are Doing – Life, Disability, Dental, Vision, and EAP		79
Delta Dental		79
Guardian		79
MetLife		79
Principal		79
Standard Insurance Company		80
Sun Life		80
UNUM		80
VSP		80
What Retirement Plan Vendors Are Doing		81
ADP Retirement Services		81
BlueStar Retirement Services		81
Digital Retirement Solutions		81
Empower Retirement		81
Fidelity Investments		81
Newport Group		81
Paychex		81
Principal Financial		81
The Standard		82
Transamerica		82
Vanguard		82
COVID-19 and Other Laws		83
Federal WARN Act		83
Requirements of the Law		83
Trigger Criteria		83
Exceptions		84
State WARN Laws		84
California WARN Act		84
Partial Suspension of WARN		84
Guidance		84
California State Benefits		85
State Disability Insurance		85
Paid Family Leave		85
Coordination and Taxation		85
California Unemployment Benefits		85
New York State Benefits		86
Overview		86
Enhanced Disability and Leave Laws		86
Enhanced Benefits for Small Employers		86
Definitional Changes		86
Enhanced Benefit Amounts		86
Program Rules		87
Pending State Sick Leave and Paid Leave Laws		87
San Francisco HCSO and FCO Reporting		87
Reporting Suspended		87
San Francisco HCSO Funds May be Used for Non-Healthcare Expenses		88
Use Health Funds for Basic Life Necessities		88
The Reason		88
Overview		88
Impact on COBRA		88
The Question of Taxation		88
San Jose Lookalike Paid Sick Leave Law		89
New San Jose Ordinance		89
The Why		89
Covered Employers		89
Effective Dates		89
Covered Employees		89
Trigger for Benefits		89
Benefits Provided		90
Exemptions		90
No Tax Credits		90
Notice Provisions		90
Americans with Disabilities Act		91
Disability Definition		91
The Flu Generally Doesn’t Count		91
EEOC Guidance		91
Direct Threat Protection		91
The ADA and COVID-19		91
Additional Employer Steps		92
Work from Home and Accommodation		92
What Can Employers NOT Do?		92
Confidentiality		92
The Impact of Shelter-in-Place		93
Upon Returning to Work		93
Hiring During COVID-19		93
Some Leeway for Reasonable Accommodation		93
OSHA		94
Employer Requirements		94
PPE and COVID-19		94
OSHA and the Workplace		94
A Word from Vita		95

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