Compliance Check - April 2021


March 2021 was an eventful month with regard to new guidance on recently passed legislation and expanded provisions from the IRS to provide relief to individuals and businesses impacted by the continuing COVID-19 pandemic. Most significantly, on March 11, 2021, the American Rescue Plan Act of 2021 (overview) was enacted into law which, in part, mandates that eligible individuals receive a six-month 100% COBRA.

Below is a summary of the many changes and updates for review.

IRS Notice 2021-21

Due to the COVID-19 national emergency, the Internal Revenue Service (IRS) released Notice 2021-21 (Notice) that extends the deadline for filing income returns on Form 1040, Form 1040-SR, Form 1040-NR, Form 1040-PR, Form 1040-SS, or Form 1040 (SP). The Notice extends the general April 15, 2021, deadline to May 17, 2021. The Notice provides that individuals with a deadline to file a claim for credit or refund of federal income tax filed on the Form 1040 series or on a Form 1040-X that falls on or after April 15, 2021, and before May 17,
2021, have until May 17, 2021, to file the claims for credit or refund.

The Notice also extends the deadline to file and furnish Form 5498 (individual retirement account (IRA) Contribution Information), Form 5498-ESA (Coverdell education savings account (ESA) Contribution Information), and Form 5498-SA (health savings account (HSA), Archer Medical Savings Account (Archer MSA), or Medicare Advantage Medical Savings Accounts (Medicare Advantage MSA) Information). The Notice extends the general June 1, 2021, deadline to June 30, 2021. The deadline for making contributions to IRAs, Roth IRAs, HSAs, Archer MSAs, and Coverdell ESAs has also been extended from April 15, 2021, to May 17, 2021.


PPE as Section 213(d) Qualified Medical Expenses

The Internal Revenue Service (IRS) released Announcement 2021-7 providing that amounts paid for personal protective equipment (PPE) such as masks, hand sanitizer and sanitizing wipes, for the primary purpose of preventing the spread of COVID-19, are qualified medical expenses under Internal Revenue Code Section 213(d). Therefore, these expenses are eligible for reimbursement from account-based plans, including health flexible spending arrangements (health FSAs), Archer medical savings accounts (Archer MSAs), health reimbursement arrangements (HRAs), and health savings accounts (HSAs). Note that if the expense is reimbursed under an account-based plan, it is not deductible for the taxpayer under Section 213 (no double benefit).

The IRS provides that group health plans, including health FSAs and HRAs, will need to be amended if the plans prohibit reimbursement of PPE. Group health plans may be amended to provide for such reimbursement of PPE expenses incurred for any period beginning on or after
January 1, 2020. Such an amendment must be adopted no later than the last day of the first calendar year beginning after the end of the plan year in which the amendment is effective. The amendment can have a retroactive effective date (unless it is adopted after December 31, 2022) if the plan is operated consistent with the terms of the amendment beginning on the effective date of the amendment. The IRS provides that the amendment will not cause plans to fail the Section 125 cafeteria plan requirements.


Executive Order on Strengthening Medicaid and the Affordable Care Act

3/24/2021 Update: CMS has extended the new special enrollment period for marketplaces using the platform until August 15, 2021. See the updated CMS FAQs for more information. On January 28, 2021, President Biden signed an Executive Order on Strengthening Medicaid and the Affordable Care Act. The Executive Order instructs the Department of Health and Human Services (HHS) to consider establishing a special open enrollment period (SEP) for individuals to enroll in or change their current coverage under federally facilitated health insurance marketplaces. The Centers for Medicare and Medicaid Services (CMS) initially established that the special enrollment period would begin on February 15, 2021, and would continue through May 15, 2021. CMS extended the SEP to apply from February 15, 2021, through August 15, 2021. This SEP will be available to individuals in the 36 states with marketplaces using the platform. Individuals can check their eligibility for this SEP on

The Executive Order instructs HHS, the Department of Labor (DOL), the Department of the Treasury (Treasury), and all other executive departments and agencies with authorities and responsibilities related to Medicaid and the ACA (Agencies) to review all existing  regulations and other guidelines or policies (agency actions) as soon as possible to examine:

  • policies or practices that may undermine protections for people with pre-existing conditions, including complications related to COVID-19, under the ACA;
  • demonstrations and waivers, as well as demonstration and waiver policies, that may reduce coverage under or otherwise undermine Medicaid or the ACA;
  • policies or practices that may undermine the Health Insurance Marketplace or the individual, small group, or large group markets for health insurance in the United States;
  • policies or practices that may present unnecessary barriers to individuals and families attempting to access Medicaid or ACA coverage, including for mid-year enrollment; and
  • policies or practices that may reduce the affordability of coverage or financial assistance for coverage, including for dependents.

The Executive Order instructs the Agencies to suspend, revise, or revoke, as soon as possible, agency actions that are inconsistent with the policy of the Biden Administration to protect and strengthen Medicaid and the ACA and to make high-quality healthcare accessible and affordable for every American. The Executive Order also instructs the Agencies to consider whether to issue additional agency actions to more fully enforce this policy.

Finally, the Executive Order revokes Executive Order 13765 Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal issued on January 20, 2017, and Executive Order 13813 Promoting Healthcare Choice and Competition Across the United States issued on October 12, 2017. As part of the review of agency actions, the Executive Order instructs the Agencies to consider, as soon as possible, whether to suspend, revise, or rescind agency actions related to these executive orders.


American Rescue Plan Act of 2021 – COBRA Premium Assistance

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (Act). The Act is a $1.9 trillion legislative package that includes pandemic relief for individuals and families. The Act contains several provisions including funding to the Centers for Disease Control and Prevention, stimulus checks, unemployment benefits, the child tax credit, tax credits for paid sick leave and family and medical leave, the Paycheck Protection Program, grants to state educational agencies, and low-income family assistance. The Act also contains several provisions affecting group health plans. This series of Advisors will focus on the provisions affecting group health plans. Below is an overview of the Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage premium assistance provisions contained in the Act.

The Act provides COBRA relief for assistance-eligible individuals. An assistance-eligible individual is an individual who is eligible for COBRA due to the COBRA qualifying event of termination of employment or reduction in hours, except for an individual’s voluntary termination of employment, and if he or she elects coverage during the period beginning April 1, 20201, and ending on September 30, 2021.

COBRA Premium Assistance

COBRA premiums for any period of coverage for an assistance-eligible individual covered under COBRA in the period of time beginning April 1, 2021, and ending on September 30, 2021, will be considered paid (that is, assistance-eligible individuals will not be required to pay the COBRA premiums). If an assistance-eligible individual pays any portion of the COBRA premiums, the amount must be reimbursed within 60 days of the date on which the individual made the premium payment.

Permitted Alternative (Different) COBRA Coverage

If an assistance-eligible individual enrolled in a group health plan experiences the COBRA qualifying event of termination of employment or reduction in hours, other than voluntary employment termination, an employer may choose to offer the COBRA-qualified individual different coverage (in addition to the offer of normal COBRA coverage) that is not the same plan as the plan the individual was covered under at the time the COBRA qualifying event. The individual must elect this coverage no later than 90 days after receiving notice of the option. The premium for this different coverage must not exceed the premium for coverage in which the individual was enrolled in at the time the qualifying event occurred. The different coverage in which the individual elects to enroll in must be coverage that is also offered to similarly situated active employees of the employer at the time the individual elects the different coverage. The different coverage cannot be a) coverage that only provides excepted benefits, b) a qualified small employer health reimbursement arrangement (QSEHRA), or c) a flexible spending arrangement (FSA). This coverage will be treated as COBRA coverage.

Extension of COBRA Election Period

An individual who a) does not have a COBRA election in effect on April 1, 2021, but who would otherwise be an assistance-eligible individual if an election were in effect; or b) elected COBRA continuation coverage, but discontinued the coverage before April 1, 2021, may elect COBRA continuation coverage during the period beginning April 1, 2021, and ending 60 days after the date on which the administrator of the applicable group health plan (or other entity) provides the additional notification, described below, to the individual.

Any COBRA continuation coverage elected by a qualified beneficiary during an extended election period noted above must begin on or after April 1, 2021, and will not extend beyond the maximum period of COBRA coverage that would have applied had the coverage had been elected and maintained without the extension.

Limitation of the COBRA Premium Subsidy

This COBRA premium subsidy will expire upon the earlier of:

    • The first date that the individual is eligible for benefits under Medicare or eligible for coverage under any other group health plan (not including coverage that a) only provides excepted benefits, b) is a QSEHRA, or c) is an FSA); or
    • The earlier of:
      • the date following the expiration of the applicable maximum COBRA coverage period due to the qualifying event, or
      • The end of the COBRA period that would have applied had the coverage had been elected and maintained without the extension.

An assistance-eligible individual must notify the group health plan when his or her premium subsidy period has expired as noted above. The Act provides that the Department of Labor (DOL) will determine the way the notice must be provided and the deadline by which the notice must be provided.

Notices to Individuals

The required COBRA election notice provided by the plan administrator to individuals that become eligible to elect COBRA continuation coverage during the period of time beginning April 1, 2021, and ending on September 30, 2021, must include an additional written notification (included in the election notice or by a separate document) to the recipient in clear language of the availability of the premium assistance and the option to enroll in different coverage if the employer permits assistance-eligible individuals to elect enrollment in different coverage as described above. In a situation in which the election notice is not required to be provided by the plan administrator, the DOL and Department of Health and Human Services (HHS) will provide rules requiring the provision of such notice.

The additional notice must include:

    • the forms necessary for establishing eligibility for premium assistance;
    • the name, address, and telephone number necessary to contact the plan administrator and any other person maintaining relevant information in connection with such premium assistance;
    • a description of the extended election period noted above;
    • a description of the obligation of the qualified beneficiary to notify the group health plan when his or her premium subsidy period has expired and the penalty provided under section 6720C of the Internal Revenue Code of 1986 for failure to carry out this obligation;
    • a description, displayed in a prominent manner, of the qualified beneficiary’s right to a subsidized premium and any conditions on entitlement to the subsidized premium; and
    • a description of the option of the qualified beneficiary to enroll in different coverage if the employer permits the beneficiary to elect to enroll in different coverage.

In the case of any assistance-eligible individual (or any individual who qualifies for an extended election period noted above who became eligible to elect COBRA continuation coverage before April 1, 2021) the administrator of the applicable group health plan (or other entity) must provide, within 60 days after April 1, 2021, the additional notification required above. Failure to provide the additional notice will be treated as a failure to meet the election notice requirement under COBRA.

The Act instructs the DOL, HHS, and the Department of the Treasury to issue models for the additional notification described above no later than 30 days after the enactment of this Act.

The administrator of the applicable group health plan (or other entity) also must provide an assistance-eligible individual a written notice in clear language that the premium assistance will expire soon and must prominently identify the date the assistance will expire and that the individual may be eligible for COBRA or coverage under a group health plan without premium assistance. This notice must be provided no earlier than 45 days before the expiration date of the assistance and no later than 15 days before the expiration date. Notice is not required to be provided if an individual’s premium assistance expires due to expiration of the COBRA coverage period or the date that the individual is eligible for benefits under Medicare or eligible for coverage under any other group health plan (not including coverage that a) only provides excepted benefits, b) is a QSEHRA, or c) is an FSA).

The Act instructs the DOL, HHS, and the Treasury to issue models for the premium assistance expiration notification described above no later than 45 days after the enactment of this Act.

Premium Assistance Credit

The employer maintaining the plan that is subject to COBRA (or the plan in the case of a multiple employer plan under Section 3(37) of ERISA; in all other cases, the issuer providing coverage) is entitled to a premium assistance credit against the FICA Medicare tax imposed on it. The amount of the premium assistance credit for each calendar quarter is equal to the amount of premiums not paid by assistance-eligible individuals. The credit allowed for each calendar quarter cannot exceed the tax imposed by Internal Revenue Code (IRC) Section 3111(b), or so much of the taxes imposed under section 3221(a) as are attributable to the rate in effect under Section 3111(b), for such calendar quarter (reduced by any credits allowed against such taxes under Sections 3131, 3132, and 3134) on the wages paid with respect to the employment of all employees of the employer. If the premium assistance credit that an employer is entitled to exceed this limitation, the excess amount must be treated as an overpayment by the employer and refunded to the employer. The premium assistance credit may be advanced according to forms and instructions provided by the IRS. Note that the IRS will waive penalties for failure to pay the FICA Medicare tax up to the premium assistance credit amount if the IRS determines that the failure was due to the anticipation of the credit. If an entity overstates the amount of credit it is entitled to, this will be treated as an underpayment of the FICA Medicare tax.

No premium assistance credit will be allowed for any amount that is taken into account as qualified wages under the employee retention credit or qualified health plan expenses under the federal paid sick leave and paid family and medical leave credit.

The premium assistance credit applies to premiums and wages paid on or after April 1, 2021.


American Rescue Plan Act of 2021 – DCAPs and Exchange Health Insurance

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021. The Act is a $1.9 trillion legislative package, which contains several provisions intended to relieve employers and families from some of the economic burdens associated with COVID-19. The Act contains funding for the Centers for Disease Control and Prevention, stimulus checks, unemployment benefits, a child tax credit, tax credits for paid sick leave and family and medical leave, the paycheck protection program, grants to state educational agencies, and low-income family assistance. The Act also contains several provisions affecting group health plans.

Increase in the Maximum Exclusion Under DCAPs

The Act increases the maximum amount that can be excluded from an employee’s income under a dependent care flexible spending arrangement (DCAP) from $5,000 to $10,500 if the employee is married and filing a joint return or if the employee is a single parent ($2,500 to $5,250 for individuals who are married but filing separately) for any taxable year beginning after December 31, 2020, and before January 1, 2022. An employer may amend a DCAP to apply this increased limit retroactively to January 1, 2021, if the amendment is adopted no later than the last day of the plan year in which the amendment is effective and the plan is operated consistent with the terms of the amendment during the period beginning on the effective date of the amendment and ending on the date the amendment is adopted.

Expanded Premium Tax Credit Eligibility and Lower Required Contribution Percentages on the Health Insurance Marketplace/Exchange

For the taxable years of 2021 and 2022, the Act has expanded eligibility for the premium tax credit for individuals who purchase health insurance on an Exchange. Under the Act, there is no upper-income limit on individuals who are eligible for a premium tax credit for 2021 and 2022 (under the existing Patient Protection and Affordable Care Act (ACA) rules, the premium tax credit is limited to individuals with household income between 100% and 400% of the federal poverty level (FPL)). The Act also lowers the percentage of household income that individuals must contribute for health insurance coverage purchased on an Exchange.

In the case of an individual who has received, or has been approved to receive, unemployment compensation for any week beginning during 2021, for that taxable year an Exchange must not take into account any household income of the individual in excess of 133 percent of the poverty limit for a family of the size involved.


Mandatory Coverage of COVID-19 Vaccines Under Group Health Plans

3/5/2021 Update: ACIP recommended the Janssen (Johnson & Johnson) vaccine.

On December 11, 2020, the Food and Drug Administration (FDA) issued an Emergency Use Authorization for the Pfizer-BioNTech COVID-19 vaccine (Pfizer vaccine). The following day, December 12, 2020, the Centers for Disease Control Advisory Committee on Immunization
Practices (ACIP) issued an interim recommendation for use of the Pfizer vaccine in persons aged 16 years or older for the prevention of COVID-19.

On December 18, 2020, the FDA issued an Emergency Use Authorization for the Moderna COVID-19 (mRNA-1273) vaccine (Moderna vaccine). The following day, December 19, 2020, ACIP issued an interim recommendation for use of the Moderna vaccine in persons aged 18 or older for the prevention of COVID-19.

On February 27, 2021, the FDA issued an Emergency Use Authorization for the Johnson & Johnson COVID-19 vaccine. The following day, February 28, 2021, ACIP issued an interim recommendation for use of the Johnson & Johnson vaccine in persons aged 18 or older for the prevention of COVID-19.

Alternative COVID-19 vaccines are likely to be approved by the FDA under emergency authority in the coming weeks. Group health plans are encouraged to prepare to cover the cost of the Pfizer, Moderna, Johnson & Johnson, and other approved COVID-19 vaccines.

Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), non-grandfathered individual and employer-sponsored group health plans are required to cover the entire cost of preventative services by not imposing cost-sharing in the form of deductibles, copays, coinsurance or other amounts on the following:

  • An item, service, or immunization that is intended to prevent or mitigate the coronavirus disease and is an evidence-based item or service that has a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF); and
  • An immunization that is intended to prevent or mitigate the coronavirus disease that has a recommendation from ACIP with respect to the individual involved.

The CARES Act requires that the above services be covered as preventive care 15 business days after the date on which a recommendation is made by the USPSTF or ACIP relating to the service. Accordingly, non-grandfathered individual and group health plans must cover the Pfizer vaccine as preventive care no later than January 5, 2021 (based on the December 12, 2020, recommendation from ACIP), the Moderna vaccine as preventive care no later than January 12, 2021 (based on the December 19, 2020, recommendation from ACIP), and the Johnson & Johnson vaccine as preventive care no later than March 19, 2021 (based on February 28, 2021 recommendation from ACIP).

ACIP has recommended that only health care personnel and residents of long-term care facilities receive the vaccine in the initial phase (Phase 1a) of the COVID-19 vaccination program. ACIP previously recommended that during Phase 1b, the vaccine should be distributed to essential workers such as members of the education sector, food and agriculture, utilities, police, firefighters, corrections officers, and transportation. ACIP has revised this recommendation so that during Phase 1b the vaccine should be offered to persons aged 75 years or older and frontline essential workers (non–health care workers).

ACIP previously recommended that during Phase 1c, the vaccine should be distributed to adults with high-risk medical conditions and adults aged 65 years or older. ACIP has revised this recommendation so that during Phase 1c, the vaccine should be offered to persons aged 65 to 74 years old, persons aged 16 to 64 years old with high-risk medical conditions, and essential workers not recommended for vaccination in Phase 1b.

Phase 2 includes all other persons aged 16 years or older that are not included in Phases 1a, 1b, or 1c.

Employers should ensure that their non-grandfathered group health plans, whether self-insured, or fully insured through carriers, are prepared to cover COVID-19 vaccines as provided under the CARES Act and that the plan documents reflect such coverage. Further, participant communications should be distributed that provide information regarding the availability of COVID-19 vaccinations with no cost-sharing. Grandfathered plans are not required to cover COVID-19 vaccines under the CARES Act. However, employers with such plans should review their plan documents to determine whether COVID-19 vaccines are or should be covered.


EBSA Disaster Relief Notice 2021-01

3/2/2021 Update: The DOL issued EBSA Disaster Relief Notice 2021-01 providing that the outbreak period relief noted below ends on the earlier of one year from the date an individual or plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency. As of the date of this writing, the COVID-19 National Emergency has not ended.

On March 13, 2020, former President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak and by a separate writing made a determination, under Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, that a national emergency exists nationwide beginning March 1, 2020, as the result of the COVID-19 outbreak.

The Department of Labor (DOL) recognizes that the COVID-19 outbreak may impede efforts to comply with various requirements and deadlines under the Employee Retirement Income Security Act (ERISA). As a result, the DOL’s Employee Benefits Security Administration (EBSA) issued Disaster Relief Notice 2020-01 (Notice 2020-01) that applies to employee benefit plans, employers, labor organizations, and other plan sponsors, plan fiduciaries, participants, beneficiaries, and covered service providers. Notice 2020-01 supplements the extended timeframes final rule issued by the DOL and the Department of the Treasury.

ERISA Notice and Disclosure Relief

In addition to the final rule, Notice 2020-01 provides an extension on deadlines for furnishing other required notices or disclosures to plan participants, beneficiaries, and other persons to grant plan fiduciaries and plan sponsors additional time to meet their obligations under Title I of ERISA during the COVID-19 outbreak. This extension applies to the furnishing of notices, disclosures, and other documents required by provisions of Title I of ERISA over which the DOL has authority, except for those notices and disclosures addressed in the final rule. See the DOL Reporting and Disclosure Guide for Employee Benefit Plans for an overview of the various notice and disclosure requirements under Title I of ERISA.

Under the EBSA Disaster Relief Notice 2021-01, an employee benefit plan and the responsible plan fiduciary may disregard the period from March 1, 2020, and ending on the earlier of one year from the date the plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency when determining the date that a notice or disclosure must be provided under Title I of ERISA. This relief will only apply if the plan and responsible fiduciary act in good faith and furnish the notice, disclosure, or document as soon as administratively practicable under the circumstances. Good faith acts include use of electronic alternative means of communicating with plan participants and beneficiaries whom the plan fiduciary reasonably believes have effective access to electronic means of communication, including email, text messages, and continuous access websites.

Plan Loans and Distributions

The DOL has taken a temporary non-enforcement position on retirement plan loan and distribution procedural deficiencies. Under Notice 2020-01, retirement plans that do not follow procedural requirements for plan loans or distributions imposed by the terms of the plan, will not be treated as in violation of Title I of ERISA if: 1) the failure is solely attributable to the COVID19 outbreak; 2) the plan administrator makes a good-faith diligent effort under the circumstances to comply with those requirements; and 3) the plan administrator makes a reasonable attempt to correct any procedural deficiencies, such as assembling any missing documentation, as soon as administratively practicable. The relief is limited to the DOL’s authority under Title I of ERISA and does not extend to Title II of ERISA, which contains provisions analogous to those under the Internal Revenue Code and subject to the jurisdiction of the IRS, such as the spousal consent rules for distributions.

Under Notice 2020-01, the DOL will not consider any person to have violated Title I of ERISA, including the requirement that the loan be adequately secured by the account balance, solely because: 1) the person made a plan loan to a qualified individual during the loan relief period in compliance with the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the provisions of any related IRS notice or other published guidance; or 2) a qualified individual delayed making a plan loan repayment in compliance with the CARES Act and the provisions of any related IRS notice or other published guidance.

Notice 2020-01 provides that an employee pension benefit plan may be amended to provide the relief for plan loans and distributions described in section 2202 of the CARES Act and the DOL will treat the plan as being operated in accordance with the terms of the amendment prior to its adoption if: 1) the amendment is made on or before the last day of the first plan year beginning on or after January 1, 2022, or such later date prescribed by the Secretary of the Treasury, and 2) the amendment meets the conditions of section 2202(c)(2)(B) of the CARES Act.

Participant Contributions and Loan Repayments

Under Notice 2020-01, as amended by Notice 2021-01, the DOL will not take enforcement action with respect to a temporary delay in forwarding participant payments and withholdings to employee pension benefit plans during the period from March 1, 2020, and ending on the earlier of one year from the date the plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency if the delay is solely attributable to the COVID-19 outbreak. However,  employers and service providers must act reasonably, prudently, and in the interest of employees to comply as soon as administratively practicable under the circumstances.

Blackout Notices

Notice 2020-01 provides individual account plan administrators with relief from the requirement that 30 days’ advance written notice be provided to participants before implementing a blackout period that restricts participants’ ability to direct investments and to obtain loans and other distributions from the plan. The relief is available when a plan administrator is unable to comply with the advance notice requirement due to events beyond the reasonable control of the plan administrator. The DOL will not require plan administrators to make a written determination when seeking relief from the 30 days’ advance notice requirement due to a pandemic, such as COVID-19.

General ERISA Fiduciary Compliance

Notice 2020-01 provides that plan fiduciaries should make reasonable accommodations to prevent the loss of benefits or undue delay in benefits payments and should attempt to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes. The DOL recognizes that there may be instances when plans and service providers may be unable to achieve full and timely compliance with claims processing and other ERISA requirements. The DOL notes that it will implement grace periods and other relief where appropriate, including when physical disruption to a plan or service provider’s principal place of business makes compliance with pre-established timeframes for certain claims’ decisions or disclosures impossible.

The DOL will continue to monitor the effects of the COVID-19 outbreak and may provide additional relief when necessary.


Final Rule on the Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Due to COVID-19

3/2/2021 Update: The DOL issued EBSA Disaster Relief Notice 2021-01 providing that the outbreak period relief noted below ends on the earlier of one year from the date an individual or plan was first eligible for relief (extension period) or the original outbreak period of 60 days after the announced end of the COVID-19 National Emergency. As of the date of this writing, the COVID-19 National Emergency has not ended. If a deadline noted below fell on March 1, 2020, it would be extended until February 28, 2021 (one year from March 1, 2020). However, if a deadline fell after March 1, 2020, the deadline would be extended to a date after February 28, 2021 because the extension is up to one year following the deadline or 60 days after the announced end of the COVID-19 National Emergency, if earlier.

On March 13, 2020, former President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak and by separate letter made a determination, under Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, that a national emergency exists nationwide beginning March 1, 2020, as the result of the COVID-19 outbreak.

The Department of Labor (DOL) and the Department of the Treasury (Treasury) issued a final rule that extends certain timeframes under the Employee Retirement Income Security Act (ERISA) and Internal Revenue Code (IRC) for group health plans, disability, and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID-19 national emergency. The timing extensions are issued to help alleviate problems faced by health plans to comply with strict ERISA and IRC timeframes and problems faced by participants and beneficiaries in exercising their rights under health plans during the COVID-19 national emergency. The final rule provides the timeframe extensions based on the end date of the “national emergency” (as of the date of this publication, the national emergency end date has not been announced) and the end date of the “outbreak period” which is the 60th day after the end of the national emergency. Under EBSA Disaster Relief Notice 2021-01, the end of the outbreak period relief is the earlier of one year from the date they were first eligible for relief (extension period), or the original outbreak period of 60 days after the announced end of the national emergency. Under the final rule the outbreak period will be disregarded, meaning the timeframes for the group health plan requirements noted below will be paused until after the outbreak period has ended.

HIPAA Special Enrollment Periods

Under HIPAA, group health plans must provide special enrollment periods in certain circumstances, including when an employee or dependent loses eligibility for any group health plan or other health insurance coverage in which the employee or the employee’s dependents were previously enrolled (including coverage under Medicaid and the Children’s Health Insurance Program), and when a person becomes a dependent of an eligible employee by birth, marriage, adoption, or placement for adoption. Generally, group health plans must allow such individuals to enroll in the group health plan if they are otherwise eligible and if enrollment is requested within 30 days of the occurrence of the event (or within 60 days, in the case of loss of Medicaid or state Children’s Health Insurance Program (CHIP) coverage or eligibility for state premium assistance subsidy from Medicaid or CHIP).

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining if a participant timely requested HIPAA special enrollment (i.e., the 30-day or 60-day period will begin to run the day after the outbreak period). See the Appendix for examples.


The COBRA continuation coverage provisions generally provide a qualified beneficiary a period of at least 60 days to elect COBRA continuation coverage under a group health plan. Plans are required to allow payment of premiums in monthly installments, and plans cannot require payment of premiums before 45 days after the day of the initial COBRA election. COBRA continuation coverage may be terminated for failure to pay premiums on time. Under the COBRA rules, a premium is considered paid on time if it is made no later than 30 days after the first day of the period for which payment is being made. Notice requirements prescribe time periods for employers to notify the plan of certain qualifying events and for individuals to notify the plan of certain qualifying events or a determination of disability. Notice requirements also prescribe a time period for plans to notify qualified beneficiaries of their rights to elect COBRA continuation coverage.

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the 60-day COBRA election period, the date for making COBRA premium payments, and the date for qualified beneficiaries to notify the plan of a qualifying event or determination of disability. The outbreak period must also be disregarded when determining the date by which a COBRA election notice must be provided to a qualified beneficiary. See the Appendix for examples.

Claims Procedure

ERISA-covered employee benefit plans and non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage are required to establish and maintain a procedure governing the filing and initial disposition of benefit claims, and to provide participants with a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary. Plans may not have provisions that unduly inhibit or hamper the initiation or processing of claims for benefits. Further, group health plans and disability plans must provide participants at least 180 days following receipt of an adverse benefit determination to appeal (60 days in the case of pension plans and other welfare benefit plans).

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the date for participants to file a benefit claim under the plan’s claims procedures and the date by which a participant may file an appeal of an adverse benefit determination under the plan’s claims procedure.

External Review Process

ERISA sets forth standards for external review that apply to non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage and provides for either a state external review process or a federal external review process. Standards for external review processes and timeframes for submitting claims to the independent reviewer for group health plans or health insurance issuers may vary depending on whether a plan uses a state or federal external review process. For plans or issuers that use the federal external review process, the process must allow at least four months after the receipt of a notice of an adverse benefit determination or final internal adverse benefit determination for a request for an external review to be filed. The federal external review process also provides for a preliminary review of a request for external review. The regulation provides that if such request is not complete, the federal external review process must provide for a notification that describes the information or materials needed to make the request complete, and the plan or issuer must allow a claimant to perfect the request for external review within the four-month filing period or within the 48-hour period following the receipt of the notification, whichever is later.

Under the final rule and EBSA Disaster Relief Notice 2021-01, the one-year extension period or original outbreak period, if earlier, must be disregarded when determining the date by which a participant may file a request for an external review after receiving an adverse benefit determination or final internal adverse benefit determination and the date by which a participant must file a corrected request for external review upon a finding that the request was not complete.

Plan Administrator/Fiduciary Obligations Regarding the End of the Outbreak Period

The DOL instructs that if the plan administrator or other responsible plan fiduciary knows, or should reasonably know, that the end of the outbreak period for an individual action is exposing a participant or beneficiary to a risk of losing protections, benefits, or rights under the plan, the administrator or other fiduciary should consider sending a notice regarding the end of the outbreak period. The DOL also notes that plan disclosures issued prior to or during the pandemic may need to be reissued or amended if such disclosures failed to provide accurate information regarding the time in which participants and beneficiaries were required to take action (e.g., COBRA election notices and claims procedure notices). The DOL provides that group health plans should consider ways to ensure that participants and beneficiaries who are losing coverage are made aware of other coverage options that may be available to them, including the opportunity to obtain coverage through the Health Insurance Marketplace in their state.

The DOL acknowledges that there may be instances when full and timely compliance with ERISA’s disclosure and claims processing requirements by plans and service providers may not be possible, such as when pandemic or natural disaster-related disruption to a plan or service provider’s principal place of business makes compliance with pre-established time frames for certain claims’ decisions or disclosures impossible. The DOL will take into account fiduciaries that have acted in good faith and with reasonable diligence under the circumstances when enforcing ERISA requirements.

ARPA: What Employers Need to Know

On March 10, 2021 Congress passed the American Rescue Plan Act (ARPA) of 2021, which was signedImage inspiring hope for 2021 and the coronavirus relief offered with American Rescue Plan Act ARPA into law on March 11th. The ARPA attempts to address and help mitigate some of the far-reaching financial impacts of the COVID-19 pandemic. In addition to those provisions, the ARPA contains provisions that are of special interest to employers and employees


The ARPA Nitty Gritty

  • COBRA Subsidy - A 100% premium subsidy is provided, funded through employer tax credits. 
  • FFCRA Leave - Employer tax credits have been extended through September 30, 2021.
  • FFCRA Leave - Inclusion of testing and immunization as qualifying reasons for FFCRA leave.
  • FFCRA Tax Credits - Definition of employee earnings eligible have been expanded.
  • Unemployment - The $300 weekly increase has been extended and expanded.
  • ACA - Exchange insurance subsidies are increased. 
  • DCAP - Contribution limits have been increased.
  • Employee Retention Tax Credit - Extended and expanded eligibility for some businesses. 


Let's Break It Down


COBRA Subsidy

What is it?

COBRA (Consolidated Omnibus Budget Reconciliation Act of 1986) allows employees who would lose employer-sponsored health insurance because of job loss (or reduction in working hours) to continue that insurance for 18 months. However, the employer can require the employee that elects COBRA coverage to pay the entire cost of the premium oftentimes creating a necessary, but an unexpected financial burden for the employee. 


ARPA Provisions

  • 100% subsidy of COBRA premiums from April 1, 2021, through September 30, 2021, for employees and their family members who lost health insurance due to involuntary termination or reduction in hours of their employment
  • Allows employees who declined COBRA coverage, or elected it and dropped it, to elect subsidized COBRA
  • Does not apply to employees who voluntarily terminated their employment or who qualify for another group health plan


Who Pays For It?

The subsidy is funded through the federal government through a refundable payroll tax credit. 


Action Steps

  • New employee notice requirements for plan administrators will be issued by the US Department of Labor
  • Employees may elect subsidized COBRA starting April 1, 2021, through 60 days after receiving notice of the benefit



What is it?

FFCRA (Families First Coronavirus Response Act) was passed in March 2020 and provided a tax credit for employers to fund two types of paid employee leave required by the law. These leave requirements expired in December 2020, but for employers that chose to continue providing FFCRA leave voluntarily, the tax credit was extended through March 2021.


ARPA Provisions

  • Extends tax credit through September 30, 2021
  • Adds a provision to include employee time off related to COVID-19 testing and immunization
  • Increases the amount of wages eligible for the family leave credit from $10,000 to $12,000 per employee
  • Provides an additional 10 days of voluntary emergency paid sick leave for employees beginning April 1, 2021



What is it?

Due to the COVID-19 pandemic, unemployment provisions were expanded under the previous administration to include three new federal unemployment programs. These programs were scheduled to end no later than April 2021. 

  • Pandemic Unemployment Assistance (PUA): Provided weekly benefits to independent contractors, self-employed individuals, and other workers that typically would not be eligible for unemployment benefits
  • Pandemic Emergency Unemployment Compensation (PEUC): Provides weekly benefits to individuals who have exhausted their eligibility for all other unemployment benefits
  • Federal Pandemic Unemployment Compensation: Provides an additional $300 weekly payment to individuals already receiving PUA, PEUC, or regular unemployment benefits


ARPA Provisions

  • Previously established provisions that were set to expire have been extended through September 6, 2021
  • Changes how unemployment benefits are taxed, exempting the first $10,200 from federal income tax for each spouse in households with under $150,000 in adjusted gross income.



What is it?

The ACA (Affordable Care Act) established health insurance exchanges for the purchase of individual health insurance coverage, as well as premium tax credits. These tax credits are not available to individuals with income at or above 400% of the federal poverty level. 


ARPA Provisions

  • Temporarily eliminates the income cap on subsidies for a period of two years
  • Limits the total amount a household is required to pay for health coverage through the Exchanges to 8.5% of household income
  • Increases federal subsidy amounts available for lower-income individuals, in some cases eliminating premium costs entirely
  • Increases federal funding intended to encourage states to expand Medicaid programs (if they previously had not done so)
  • All provisions are temporary and will expire in two years



What is it?

A DCAP (Dependent Care Assistance Plan), also sometimes referred to as a dependent care flexible spending account (FSA), is an employee benefit plan that helps employees pay for the care of a qualifying dependent, such as a child or elder, as defined by Internal Revenue Service (IRS) regulations.


ARPA Provisions

  • Increases annual contribution limit from $5,000 to $10,500 ($2,500 to $5,250 for married filing separately) for tax years beginning after December 31, 2020 and before January 1, 2022
  • Employers meeting requirements can retroactively amend plans to incorporate the increase


Action Steps

  • Employers with DCAPs can retroactively amend plans, if
    • The amendment is adopted by the last day of the plan year in which it is effective; and
    • The plan operates consistently with the terms of the amendment until it is adopted.
  • It is recommended that you speak with your benefits advisor to ensure plans meet the requirements and stay in compliance


Employee Retention Tax Credit

What is it?

The Employee Retention Tax Credit was originally enacted with the CARES (Coronavirus Aid, Relief and Economic Security) Act. The credit was tended to encourage employers to retain employees on their payroll who were unable to work due to COVID-19 related reasons. This credit was set to expire in June of 2021.


ARPA Provisions

  • Extends the credit through the end of 2021
  • Expands eligibility to some small startups that began operating after February 15, 2020. Qualifying businesses will be eligible for a maximum credit of up to $50,000 per quarter even if they do not experience an eligible decline in gross receipts or a full or partial suspension
  • Creates a new provision for 'severely financially distressed' employers which beginning in the third quarter of 2021 allows employers of any size to count all wages toward the $10,000 cap.

IRS: Added FSA / Dependent Care Flexibility for Employee Benefit Plans

IRS adds FSA flexibility due to pandemicOn February 18th, due to the pandemic, the IRS provided greater flexibility to employee benefit plans offering health flexible spending arrangements (FSA) and/or dependent care assistance programs.

Generally, under these plans, an employer allows its employees to set aside a certain amount of pre-tax wages to pay for medical care and dependent care expenses. Amounts spent by the employee are then reimbursed from their designated health FSAs or dependent care assistance programs.

The added flexibility with Notice 2021-15, is in addition to the changes enacted under the COVID-related Taxpayer Certainty and Disaster Tax Relief Act of 2020, which enabled plans to have additional discretion in 2021 and 2020 to adjust their programs to help employees during the pandemic.

Take a quick read of the overview below to ensure you are aware of these changes that may offer a positive impact for your employees.


Moving the Carry Over Goalpost

Resource: Notice 2021-15

As a result of COVID-19, many regular-use medical or dependent care services were lacking accessibility resulting in participating employees being more likely to have unused health FSA amounts or dependent care assistance program amounts at the end of 2020 and 2021.

Notice 2021-15 provides added (FSA / Dependent Care) flexibility for employers to:
  • Handle carryover of unused amounts from 2020 and 2021 plan years;
  • Extend the permissible period for incurring claims (2020 and 2021 plan years);
  • Adopt a special rule regarding post-termination health FSA reimbursements;
  • Incorporate a special claims period and carryover rule for dependent care assistance programs when a dependent "ages out" during the COVID-19 public health emergency; and
  • Allow certain mid-year election changes for health FSAs and dependent care assistance programs for plan years ending in 2021.


Prior Guidance (FSA & Dependent Care)

Previously adopted changes provided flexibility with cafeteria plans through the end of calendar year 2020, during which employers could permit employees to apply unused health FSA amounts and dependent care assistance program amounts to pay for or reimburse medical care or dependent care expenses. The Taxpayer Certainty and Disaster Tax Relief Act of 2020, signed into law on December 27, 2020, extends and expands flexibility for these arrangements in 2021 and 2022.


Next Steps

The decision to adjust these employee benefit programs is at the discretion of the employer that sponsors the plan.

Notice 2021-15 gives employers the option to amend their plans to provide greater flexibility for employees to elect and use these programs during the pandemic without risking the forfeiture of the amounts they have set aside.

If you need help in understanding if making these adjustments is right for you, contact one of our Consultants for a more detailed analysis of your current plan offerings. 

How the latest stimulus bill impacts student loan benefits

With passage of the COVID-19 stimulus bill in December, Congress granted a five-year extension to a temporary provision of the CARES Act that allows employers to contribute up to $5,250 annually toward each employee's student debt on a tax-free basis.

This tax exemption was set to expire on December 31, 2020. Congress has now extended that deadline through December 31, 2025. The legislation allows employers to help pay down their employees’ student loan debt without employer contributions being taxed, similar to a 401(k) match.

By utilizing this benefit, both employers and employees avoid federal payroll and income taxes on employer payments to principal or interest on a qualified education loan, which is defined as a student loan in the name of the employee and used for their education. Federal, private and refinanced student loans are all eligible for pre-tax employer contributions. This tax exemption, however, does not apply to education loans for an employee’s spouse, children, or other dependents.

Addressing student debt at work has been a burgeoning trend in employee benefits in recent years. Even prior to this tax exemption, the number of employers offering student loan repayment benefits doubled from 4% to 8% of U.S. employers between 2018 and 2019. Providing student loan assistance has rapidly gained traction as an employee benefit because it’s often a win-win for employers and employees.

Some 47 million Americans collectively owe $1.7 trillion in student debt and that figure is not slowing down. The Congressional Budget Office estimates that over $1 trillion dollars in new student loan debt will be added by 2028. With 70% of college students graduating and beginning their careers with an average of $40,000 in debt that will take 22 years to pay off, employers have begun to recognize the social cost and impact such an astronomical level of debt has on recruiting, retention, and employee productivity.

By the age of 30, employees with student debt hold less than half the retirement savings of their peers without student loans. Student loan borrowers have delayed homeownership, getting married and having children because of their debt. Stress over how to repay student loans causes 65% of borrowers to report losing sleep at night and 1 out of 8 divorces are attributable to student debt.

When one takes that into consideration, it should not be surprising that many job seekers are drawn to employers that offer to help pay down their student loans. When young adult job seekers were asked “What percentage of your benefit compensation money would you allocate for student loan debt repayment versus an alternative benefit?” In all cases, respondents chose more money going toward student loan repayment, ahead of all other benefits, including 401(k) match, health insurance, and paid time off.

At Goodly, we work with employers to help them offer student loan repayment as an employee benefit. Across the hundreds of clients we work with, employers typically contribute between $50 to $200 per month, with the median employer contribution being $100 per month toward the employee’s student debt.

Many Goodly clients fund student loan benefits by simply redirecting existing benefits budgets, often from tuition assistance programs. This is a fairly straightforward proposition when one considers that roughly half of employers already offer tuition assistance benefits that allow employees to go back to school. Yet, these programs often see abysmal utilization with less than 10% of eligible workers taking advantage of a tuition benefit on an annual basis.

The most common approach to employer-sponsored student loan repayment is to have employees continue making their regular student loan payments. Employer payments are then made on top of that to the principal of the student loan, similar to a 401(k) match. By taking this approach, we’ve found that the average student loan borrower on Goodly can pay off their student loans 25% to 30% faster than they otherwise would with the help of their employer.

SOURCE: Poulin, G. (20 January 2021) "How the latest stimulus bill impacts student loan benefits" (Web Blog Post). Retrieved from

Why your employees need integrative wellness benefits

As employers look for innovative ways to support employee health and well-being during the pandemic, many have been relying on telehealth options and apps. But these alternatives are leaving employees with critical care gaps.

“Conventional care has left people to manage their own healthcare,” says Bill Gianoukos, CEO of Goodpath, a personalized care platform. “There’s been an uptick in telehealth services that do one of the components, but we’re providing a single solution that manages your entire care.”

“People are stitching solutions together, which leaves the patient to mimic what's currently broken in the conventional care system,” he says. “The employee is going out and picking and choosing solutions that may not be right.”

His platform, Goodpath, addresses musculoskeletal, sleep, digestive and behavioral health challenges through an integrated care plan. Clients work with a coach and also receive a box of products, like exercise bands and posture correctors.

“We believe in treating the whole person versus just going after the symptom,” Gianoukos says.

In a recent interview, Gianoukos discussed the health challenges facing employees as COVID persists, and why employers may be hesitant to launch integrative wellness programs.

How does integrative wellness differ from more conventional healthcare solutions?

The U.S. healthcare system is built around things that affect life expectancy, not chronic conditions that affect quality of life. Conventional care has left people to manage their own healthcare — everything from taking prescription medication, to going to see a specialist, to doing imaging, to physical therapy — you're just left on your own to manage your care.

When it comes to behavioral health, people don't necessarily understand how much behavioral wellness affects overall underlying conditions. [At Goodpath], you come to us with a condition and we will take you through that journey. We will manage your physical therapy and exercise. We will create programs for nutrition. We will create and administer behavioral health programs. We look at all of the multimodal approaches to an integrative care program versus a conventional single-point solution.

What are some of the benefits to this approach, from a productivity and cost-saving perspective?

For back pain alone, an integrative approach might save $11,000 in costs per employee per year. There are many productivity gains, not only from days lost in the office, but productivity lost because of inefficiencies. The average person suffering from a musculoskeletal issue sees 12 days of productivity loss a year. We also make a coach available to you. We believe that any program that actually has a human component has a much higher adherence rate than a standalone digital solution.

Building an integrative approach is very difficult. We see upwards of 12 different specialties represented, from physical therapy to a nutritionist, to a pharmacist, to primary care, to pain management experts. It's very difficult to go and build these complete integrative solutions. So I don't necessarily think you're going to see a lot of companies trying to do this.

What health challenges do you think will see the most need in 2021?

We’re focused on three of the largest conditions afflicting the U.S. population today: musculoskeletal, which can be considered as back pain, shoulder pain, knee pain; insomnia, which also includes fatigue; and then digestive issues like IBS. All of these have a large emotional and mental well-being component. We continuously look at improving and offering more solutions. For example, we’ve trained our coaches on good office ergonomics. Our goal is to keep on offering higher quality solutions for each one of the programs that we're dealing with.

[Some employees] need more urgent care than can be provided through digital therapy. So that’s when we work with employers to integrate with EAPs. We definitely believe that EAPs add a lot of value — we're solving slightly different problems, but overall we're trying to improve the health and the quality of life for all employees at these companies.

SOURCE: Place, A. (25 January 2021) "Why your employees need integrative wellness benefits" (Web Blog Post). Retrieved from

What does work look like in 2021? Workplace experts share their predictions

No one could have anticipated the total upheaval to the workplace in 2020 — the transition to remote work, a new reliance on technology, persistent pressures on employee mental health and well-being, child care concerns — the year was a roller coaster of crisis management for organizations and HR leaders.

With the one-year mark since coronavirus engulfed the U.S. now here, employers and employees are starting 2021 with one question: What will work be like this year?

“We are starting to see light at the end of the tunnel for the pandemic. Companies are better able to plan and make decisions about what is going to happen in the next six to twelve months,” says Brie Reynolds, career development manager at FlexJobs, a remote job searching platform.

While the transition to remote work seemed challenging at the start of the pandemic, employers are feeling more confident about their business success in 2021. Forty-four percent of executives believe the economy will improve this year, according to a survey by the Employer Associations of America. That confidence is leading employers to make important business decisions regarding pay raises and hiring: 64% of employers plan to implement salary increases, and 26% plan to boost their recruiting efforts.

“The pandemic has forced companies to be agile and innovative during these uncertain times,” says Mark Adams, director of compliance for EAA, an advocacy group that helps employers stay compliant with labor laws. “While expenditures are being scrutinized now more than ever before, the need to invest strategically remains important as businesses seek to rebound in 2021 and make up for lost ground.”

Remote work is here to stay

At the start of the pandemic, employees struggled to meet the demands of the digital workplace without many of the resources and benefits of the in-person office. Almost one year later, there’s little doubt that remote work has changed the way we work forever.

“Companies made it through almost a full year of remote work with relatively few problems,” Reynolds says. “Most companies are reporting that remote work was successful, and employees want it to continue. Companies are ready to make the switch now that they’ve really had a chance to test it out.”

Seventy percent of employees would like to continue to work remotely part of the time post-COVID, according to Glassdoor. Not only has remote work boosted productivity for some groups, the trend has offered employees an opportunity for better work-life balance and the freedom to live and work away from expensive corporate hubs, like Silicon Valley and cities such as New York and Los Angeles.

“If you're able to open yourself up to remote work, you can get more diversity in your workforce in terms of people's experience and their backgrounds,” Reynolds says. “That’s becoming increasingly important for employers to pay attention to.”

While organizations like Facebook and Slack have announced their employees can work remotely indefinitely, they’ve also suggested they’d make potential pay cuts for employees living in areas with a lower cost of living. Twenty-six percent of employers plan to base compensation on location, according to Willis Towers Watson. But 62% percent of employees would be willing to take a paycut if it allowed them to work from home, according to a survey from software companies GoTo and LogMeIn.

Thirty-five percent of workplaces do not have a firm plan for fully reopening their office, while 16% hope to reopen during Q1, according to a survey by The Conference Board. Hanging in the balance is the ability to have protective policies in place so that the workplace population feels safe, says Gary Pearce, chief risk architect at Aclaimant, a workplace safety and risk management platform.

“Protection is a must, not a nice to have,” Pearce says. “If you can't demonstrate that you're protecting your own people, you're not going to be able to keep employees.”

Workplace safety and vaccination protocol

With two vaccines currently on the market, a return to pre-COVID life is becoming easier to imagine. But ensuring that employees get the vaccine before returning to the workplace is the newest workplace debate confronting employers.

Just half of employees believe their employer should require a COVID-19 vaccine before allowing employees to return to work, according to Eagle Hill Consulting. Gen Z employees were the most on-board with a vaccine mandate, with 62% supporting a requirement, compared with 50% of Millennials and 46% of Generation X and baby boomer employees.

“If you're going to have that requirement, you have to have all the administrative processes in place. How do you verify as an employer that somebody went and got it? What documentation will suffice?” Pearce says. “I think the best case is when it doesn't have to come down to a mandate, but rather people are persuaded by having been given the best information, that this is the right thing to do to protect their family and to protect their fellow workers.”

Other safety precautions like frequent testing, social distancing and mask wearing will become a new way of life back at the office. The Conference Board found that 82% of employers plan to purchase safety equipment like masks, cleaning supplies and contactless entry devices, and 80% will enforce policies like limiting the number of employees allowed in the workplace at a time.

“You can't lose those safety protocols,” says Judi Korzec, CEO and founder of VaxAtlas, a vaccine management company. “It's going to take time to get to that point where you say, ‘Enough [employees] are vaccinated.’ If you're vaccinated, you don't need the test, but you need one or the other to keep your population safe.”

Implementing programs that incorporate consistent COVID testing and other safety precautions will be critical to establishing trust with employees after a year of mixed messages and ever-changing protocols, Korzec says.

“Employers are trying to do the very best they can and get their businesses back and follow the rules, but those change very quickly. It was so hard to keep up with and there probably was a little bit of lost trust there,” Korzec says. “The more tools and communication and orderly processes employers bring to the table, they’ll regain [employee] trust, because everyone wants their life back.”

Continued reliance on technology

Despite the challenges of COVID, employees have an overall positive attitude toward their employers and the way they’ve been supported during the pandemic. Seventy-eight percent of employees say their employer has handled the challenges of the pandemic appropriately, according to McKinsey. More than a quarter of employers have boosted employee benefits since the start of the pandemic, research by Fidelity Investments found.

Employers have looked seriously at ways to better support their workplace population, often turning to technology to fill in the gaps. Virtual nutrition programs, online access to therapy and holistic mental health care, virtual parental support groups and other programs will continue to be a critical component to help employees balance the demands of their work and home lives.

“When organizations systematically show that they care for their employees, they get better results,” says Laura Hamill, an organization psychologist at Limeade, an employee experience software company. “I think that something that is front and center to everybody in HR right now is the well-being of our employees and there have been a lot of impressive ways that organizations are emphasizing that.”

Employers must be empathetic to the challenges their employees have continued to face during this crisis, Hamill says. An ability to share openly can be key to building a more loyal and resilient workforce during COVID and beyond.

“It's time to have a radical change in how we think about work. In order for real change to happen, you have to be able to envision it first. You have to be able to say, ‘I could see how caring for people and being more human at work could happen in my company,’” Hamill says. “This global pandemic has forced us to see that when you treat people like human beings, when you care about them, it's just better for the employees — and it's better for your business.”

SOURCE: Place, A. (25 January 2020) "What does work look like in 2021? Workplace experts share their predictions" (Web Blog Post). Retrieved from

The top tool for retaining your working parent population

When Allison Whalen returned to her job following her first maternity leave in 2017, she felt “completely overwhelmed” by the lack of supportive resources available to guide her through the leave and return-to-work process.

“I ended up getting through that first three months back at work and I realized there were about 50 things that I wish someone had told me before I'd even been on leave,” says Whalen.

Whalen says she felt lost in understanding how much child care she would need before and after returning to the office, and felt left behind on her professional development.

After returning to work for a previous employer, Whalen knew something needed to change for working parents going out and coming back from leave. She started Parentaly a parental leave benefits company, in order to help employers streamline the process of getting new parents back to work.

Parentaly provides companies and workers with tools, coaching and resources that help working parents navigate the before and after of parental leave, without sacrificing their career and helping the organization retain its talent.

These benefits became even more critical during the pandemic. Whalen herself experienced her second maternity leave this summer, and having a plan for how she would navigate this time helped her stay productive. Remote work due to COVID was an added bonus for both her and her spouse, she says.

“My second maternity leave was a way better experience because I had made a plan that around six weeks postpartum, I wanted to start spending about two to four hours a week doing work,” Whalen says. “That was possible because [my husband] wasn’t commuting and he had breaks in between meetings where he could take a walk [with the baby]. We could plan because he was there.”

While the pandemic has been a huge challenge for working parents, more flexible work arrangements have actually been beneficial to their overall productivity. Thirty percent of the working parents reported an increase in productivity during the pandemic, according to research from Rutgers University. Overall, 94% of employers say that even with employees working remotely, productivity was the same as or higher than it was before the pandemic, according to Mercer, an HR and workplace benefits consulting firm.

But flexible scheduling is just one part of the puzzle for employers wanting to support working parents. Companies that invest in employees and their families with benefits prioritizing their unique challenges see 5.5 times more revenue growth thanks to greater innovation, higher talent retention and increased productivity, according to research by Great Places to Work and Maven Clinic, a health services provider that supports women and families with their fertility, maternity, and pediatrics needs.

“So much of this comes down to productivity,” Whalen says. “[It’s about] how parents teach themselves to improve their productivity and then how the culture of the organization supports that productivity.”

To keep employees engaged and committed to work while juggling their home responsibilities, paid parental leave is a key place to start when employers look to boost their benefits for working parents. Microsoft offered employee parents 12 weeks of paid time off in order to help them deal with COVID-related school closures. PwC also updated its child care benefits to help parents deal with working from home and virtual school.

While workplaces often focus on maternity leave benefits, it’s critical they provide holistic support for parents at every stage of life, says Kate Ryder, founder and CEO of Maven Clinic.

“The best companies really look at parenthood as a journey. It’s not just about the nine months of pregnancy,” she says. “It’s not just maternity, but it’s fertility, return to work coaching [and] finding backup child care.”

As employers look ahead toward 2021, it’s critical they continue leading with empathy and understanding for working parents.

“The experience of being a working parent during COVID has been intensely difficult and stressful,” Whalen says. “I am hopeful that this experience will result in some major improvements in the longer term for me, namely a reduction in volume and duration of work travel, increased flexibility to work from home, and improved child care benefits.”

Whalen plans to encourage every employer she works with to provide more paid leave and greater flexibility and support when it comes to re-onboarding working parents coming back from leave. These actions now will benefit companies in the long-run.

“COVID has highlighted the importance of focusing on productivity over activity and so we are doing a lot of work focusing on how to work smarter, not harder,” Whalen says. “The companies that will come out on top over the next one to two years are the ones that will continue to invest in developing and retaining top talent during and through this pandemic.”

SOURCE: Schiavo, A. (22 December 2020) "The top tool for retaining your working parent population" (Web Blog Post). Retrieved from

3 alternative ways clients can use an HSA

HSAs get hailed as a boon to retirement savers, offering rare triple-tax advantage status to dollars deposited within. But these accounts, offered in tandem with high-deductible health insurance coverage, are far more versatile than they get credit for.

Typically thought of and discussed primarily as a way to help clients meet medical bills today or in their future retirement, HSAs can provide assistance beyond this narrow scope, with funds eligible for use to pay Medicare or COBRA premiums, long-term care, and non-medical expenses — all without jeopardizing that special tax treatment.

Medicare and COBRA premiums

Once clients enroll in Medicare they can no longer contribute to their HSA, but they can do something they could never do on a high-deductible plan: use the money they’ve already stashed in it to cover their premiums.

HSA funds can pay for Medicare Parts A, B and D as well as copays for Part D. Medicare HMO, Medicare Advantage, and MAPD plan premiums are also eligible expenses for reimbursement. However, HSAs cannot help with Medicare Supplement Plan or Medigap premiums, says Paul Fronstin, director of the Employee Benefit Research Institute's health research and education program.

Married couples may run into trouble when they go to reimburse themselves for such premium expenses if the account owner isn’t also the spouse who is going onto Medicare or they are not yet 65, warns Roy Ramthun, founder and president of HSA Consulting Services and a former health care policy advisor for President George W. Bush. That’s because, while HSA’s can normally be used to pay expenses incurred by the account owner’s spouse or dependent, Medicare premiums aren’t considered an eligible expense unless the account holder is 65. This means couples with any age gap need to consider whose name the HSA should be under or each open their own HSA so that the older partner doesn’t have to wait until the younger turns 65 to take advantage of this rule. (Opening two separate HSAs will also allow clients age 55 or older to make duel $1,000 catch-up contributions on top of the usual annual limits.)

Clients who reach Medicare age but opt to delay enrolling because they’re still working can also use their HSA money to pay for their employer-sponsored health care as well as continue funding an HSA. They can do this even if their spouse is on Medicare, as long as they’re on a HDHP.

And finally, clients who lost their jobs this year will likely be relieved by another HSA premium exception. If a person has health care continuation coverage, such as with COBRA, or is collecting unemployment compensation under federal or state law then they can use their HSA to pay the premiums for their health insurance, says Fronstin.

“HSA funds will frequently be used by clients to pay premiums in situations where there are little or no alternatives,” says Justin Rucci, a financial planner at Tustin, California-based Warren Street Wealth Advisors. “In a situation where a client was laid off from work, has a hefty HSA balance, and has expensive COBRA premiums, this could be a prime candidate. Alternatively, a wealthy client with a large HSA balance beyond what they would use for out of pocket medical expenses can be a good candidate for this.”

Long-term care

Like with Medicare and COBRA, HSA funds can be used to cover premiums for purchasing long-term care insurance — if it’s the right policy.

To qualify, a policy must provide coverage for only long-term care services and kick in if you need assistance with at least two daily living activities or if you suffer cognitive impairment.

“Honestly, I don’t know how many policies do not meet these requirements,” says Ramthun. “But there may be some out there and clients will want to make sure it is the right kind or else they’re going to have a bad day when they find out it isn’t.”

If your client is unsure, have them verify with their insurer that their policy is tax-qualified before considering such a move or else they could be on the hook for income tax and a penalty.

The amount a client can take from the HSA to pay the premium depends on their age. For 2019, clients 40 or younger can withdraw $420 annually to pay this expense, but those between 41 and 50 can direct almost double, $790, to their long-term care insurance policy. Those between 51 and 60 can withdraw $1,580; 61 to 70 year-olds can take out $4,220 and people 71 and older can withdraw $5,270. (The IRS has not released the limits for 2020, but they usually rise slightly each year. Ramthun expects the new figures will be out in January.)

Alternatively, clients who do purchase long-term care insurance but pay premiums out of their own pocket each year can save those receipts and then withdraw a sum equal to that annual permitted outlay at any time in the future.

Those who would prefer to go without insurance and self-fund possible long-term care costs can tap HSA assets to pay for such expenses as they occur, allowing them to better take advantage of the potential tax-free growth that comes with saving in an HSA. However, not all long-term care costs are reimbursable, warns Ramthun.

Typically long-term services that are needed to handle daily functions if you’re chronically ill or disabled count, as do those required by a plan of care prescribed by a doctor. But those who require help with more maintenance tasks like laundry or cleaning to stay in their home can’t usually use HSA funds as they aren’t considered a medical service. Nursing home costs can also be tricky for this reason as certain medical care or assistance provided at the facility may be eligible for reimbursement but other associated expenses, like room and board or meals, often are not, even at the highest level of dependent care, says Ramthun.

Non-medical expenses

While clients may have the best intentions to save their HSA funds for future medical expenses in retirement, a year like 2020 can derail such plans. If someone needs additional funds, for, say, living expenses after a job loss or an unexpected car repair, they can withdraw funds from their HSA without triggering taxes or a penalty. The catch? They must have unreimbursed past healthcare expenses.

As long as the client had an open HSA when they incurred the medical expense and hasn’t yet tapped it to cover that cost, an amount equal to that bill can be withdrawn at any time and used for any purpose they want. Clients can claim back funds for expenses dating all the way back to 2004, when HSAs were first introduced, provided they had an account. Receipts should be on hand to prove their story in case the IRS comes checking.

One thing that can trip up clients planning to use this feature is a low or empty current HSA balance. That’s because if the account balance remains at zero for 18 months, the IRS considers the HSA closed and any medical expenses you incurred before that time will no longer be reimbursable, even if you open and fund a new HSA. “

“They essentially lose that original HSA establishment date,” says Ramthun.

Financial institutions may also act before the IRS rule kicks in, closing zero balance accounts after 15 months or earlier, again negating the ability to claim back any previous medical expenses.

Clients who move off high-deductible health plans or change employers and can no longer fund an HSA are most likely to fall victim, Ramthun adds, as a withdrawal for a medical cost or fees may empty the account without them being able to do anything to rectify it.

In desperation, clients may opt to pull more from their HSA than they have in past medical bills, but this move will cost them dearly, triggering income tax and a 20% penalty on the amount unmatched to those unreimbursed health care expenses.

Turning age 65, however, lessens this pain, as withdrawals no longer need to be paired with a medical expense to avoid that 20% tax penalty. Income tax, however, will still be owed on any funds removed for non-healthcare expenses, similar to how distributions from a traditional IRA or 401(k) are treated.

SOURCE: Renzulli, K. (04 December 2020) "3 alternative ways clients can use an HSA" (Web Blog Post). Retrieved from

Employers Consider Child Care Subsidies

Working parents have been put into situations that are causing them to almost choose between their careers and their children due to the coronavirus pandemic bringing families home and requiring work to be done virtually. Employers are now seeking ways to help employees with taking care of their children. Read this blog post to learn more.

Working parents have borne the brunt of the pandemic's impact on employees, as many must juggle their job responsibilities with overseeing their children's remote educations and overall well-being while quarantined. Some have had no choice but to quit their jobs or decided not to seek new employment when their jobs were eliminated due to the downturn, so that they could focus on caring for their kids.

In fact, an August survey by Care@Work of 1,000 working parents with children under the age of 15 showed that 73 percent were considering making major changes at work, such as revising their schedules (44 percent), looking for a different job (21 percent) or leaving the workforce entirely (15 percent).

One approach that is gaining steam among employers seeking to help employees with children is to provide child care subsidies. These typically are employer-provided spending accounts or bonuses designed to help cover the costs, in full or partially, of day care and pandemic-related educational expenses.

"Subsidizing professional child care arrangements for an organization's employees makes sound business sense because it potentially reduces the stress and anxiety that working parents might regularly experience while worrying about their children during their normal work hours," said Timothy Wiedman, a retired associate professor of management and human resources at Doane University in Crete, Neb. "And that stress and anxiety might well divert a parent's full attention from their assigned duties."

Making Sure It's Fair

To be sure, many companies have not considered offering any type of child care subsidy to working parents. A major reason often cited is that single employees, as well as those who are married without children or who have grown children, will feel slighted by an employer that offers a benefit they can't access.

"There is always that fairness doctrine that comes into play when you offer a subsidy to one employee because they have a special need that some other employee may not have or need," said Carol Kardas, SHRM-SCP, founding partner at KardasLarson, an HR consulting firm in Glastonbury, Conn. "Some may consider this a discriminatory practice, and [it] could be a cause for lower morale or productivity."

Some organizations overcome that issue by providing a different benefit instead to offset those perceptions. Wiedman suggested reviewing benefit allotments for such employer-paid offerings as elder care, the deductible required by the company-provided health care plan, the annual contribution to 401(k) retirement plans, health savings accounts, life insurance coverage (or additional disability insurance) and tuition reimbursement. The allotments can vary based on whether the employee also receives a child care subsidy.

Another option is to explain that by providing assistance to their colleagues, the workload will remain balanced and not fall more heavily on employees who don't have child care duties.

"Working parents who have to use paid time off to spend time with their children when no other arrangements can be made may also call out at the last minute, since arrangements can be canceled abruptly," Kardas said.

Alleviating Stress and Costs

Working parents who can't afford child care and don't receive a subsidy "are often interrupted by children wanting to share their toys or get a hug from dad," said Laura Handrick, an HR consultant in Phoenix. "I see the stress on parents' faces in Zoom meetings. It's too much to manage a full-time paid job and a full-time unpaid job [parenting] at the same time. The stress affects the worker's mental health, employee productivity and family relationships."

Offering child care subsidies can increase employee satisfaction and engagement, she said. "[Managers] earn employee loyalty and increased productivity from grateful employees who aren't ridiculously stressed by constant kid interruptions while working," Handrick said.

There is a financial benefit as well: Employers that supply child care subsidies can take advantage of an annual tax credit of up to $150,000 if they use it for qualified child care facilities and services. According to the IRS, "the credit is 25 percent of the qualified child-care facility expenditures, plus 10 percent of the qualified child-care resource and referral expenditures paid or incurred during the tax year." To receive the tax credit, employers must complete Form 8882.

Handrick said a company can start a child care subsidy program with flexible spending accounts (FSAs).

"The benefit of providing a child care subsidy to employees in the form of an FSA is that the employer contributes pretax dollars, reducing its payroll taxes," she said. "The employee can choose how much or how little to contribute. Those who prefer to send their children to a more expensive program can fund and pay for it through the FSA using pretax dollars."

Kardas said if workplaces hire essential workers, they could utilize government-run programs in their states, such as Connecticut's CTCARES for Child Care Program for first responders, grocery workers, state facility employees, and child care and group home workers. They could also tap into an employee assistance program (EAP) to help employees find or pay for child care, she said.

Another idea is to grant every employee a certain amount of personal time that can be used in special circumstances, such as when child care is closed or a child is sick or unable to attend a child care program on a given day.

"This type of personal time could also be given to and used by those who do not have children for attending appointments or other obligations that can't be done after work," Kardas said. "This time may not solve the issue of employees being absent, but the fact that all would share equally may help."

As workplaces reopen physical locations, HR can look for child care facilities in the immediate area and work with them to offer a discount to employees, Kardas recommended.

"Single moms and working parents rarely have an extra room at home to carve out a home office," Handrick said. "That means they're likely working from the kitchen or dining room with children at home demanding attention. Toddlers want to play, [and] school-age kids need help with online classes."

Larger employers and those with deeper resources may even consider establishing an onsite child care facility for employees and charging less than a typical child care facility, which experts agree would dramatically boost appreciation among working parents who could then visit their children during each workday.

SOURCE: Lobell, K. (22 September 2020) "Employers Consider Child Care Subsidies" (Web Blog Post). Retrieved from

5 ways HR can help millennials be smarter than their parents about retirement

Getting younger employees to save for retirement is right up there with getting a finicky child to eat their vegetables. Sure, it's good for them, but it's not always what they want.

Participation rates and average deferral rates in voluntary enrollment plans for workers younger than 35 are well below those of other age groups, indicating that HR teams may need to take extra steps to reach this segment of their employee base, according to data from Vanguard, a leading 401(k) provider.

HR professionals are uniquely positioned to best assist younger workers. The best tack for HR experts to take with millennials in regard to retirement saving is to point out some of the mistakes their parents' generation has made in that area.

Help employees understand the destination
When it comes to saving for retirement, a lot of older workers are clearly lost. Younger workers have an opportunity to do a better job of staying on track.

Vanguard’s data show the average 401(k) participant within 10 years of retirement age (i.e., between ages 55 and 64) has a plan balance of just $69,097.

That may not provide much help over a retirement of 10 or 20 years.

Caution young staff members that one reason older workers are so badly behind in retirement saving is that they haven't checked first to see where they're going.

A MoneyRates retirement plan survey finds that 71% of workers within 20 years of retirement age still have not done a calculation of how well their savings will hold up over their retirement years.

Encourage your workforce to determine what enough savings is. Inform your staff that it only takes a few minutes to use a retirement calculator to see how much to put aside to meet savings goals. That way, your employees will know where their retirement plan is heading.

Educate employees on how to get debt under control
Saving for retirement is undermined when employees are also building up debt at the same time.

Stress that debt costs more than retirement investments are likely to earn, a dollar in debt can more than counteract the benefit of a dollar in savings.

According to the Federal Reserve's Survey of Consumer Finances, the typical household still has $69,000 in debt by the time the head of that household is within 10 years of retirement.

Notice that this figure almost exactly matches the previously-mentioned amount that the average 401(k) participant in that age group has. In other words, debt can effectively wipe out a person's 401(k) savings.

So, your team’s first step toward educating workers about building a more secure retirement should be to do something many in their parents' generation failed to do: get debt under control.

Teach employees how to spread savings to make the burden lighter
Retirement saving is a big job, but younger workers have something very important on their side: time. Emphasize that spreading retirement savings out over 25 to 40 years makes the job much easier.

It gets tougher if young workers do what many of their parents' generation have done--wait and then try to catch up in the last ten years or so until retirement.

The golden rule: Don't leave free money on the table
When employers provide a 401(k) match, all staff should understand there's a direct financial incentive to start saving now. Every time employees put money into their 401(k) plan, the employer kicks in some on their behalf.

If employees don't contribute money into the plan, they don't get this money from the employer. There's no going back in future years and reclaiming that extra money the employer would have put in on the worker’s behalf.

The only way not to miss out on this free money is to contribute each and every year— and to contribute enough to get the maximum employer match available.

Show employees the benefits of saving
A dollar saved today can equal $10 at retirement age.

Saving money is hard work, but HR professionals can show their employees that it gets easier when they let their investments do the work for them.

The investment returns earned become much more powerful when compounded over a long period of time. Compounding means earning a return not just on the original money invested, but also on the returns earned in other years.

Younger workers must recognize that a dollar invested today could be worth much more than a dollar invested toward the end of their career.

There are many people of older generations who would be a lot better off today if they absorbed each of these five lessons when they were younger.

SOURCE: Barrington, R. (14 October 2020) "5 ways HR can help millennials be smarter than their parents about retirement" (Web Blog Post). Retrieved from