SCOTUS BLOCKS FEDERAL VACCINE MANDATE

After a long road of legal challenges and in a much-anticipated ruling, moments ago, the United States Supreme Court blocked the COVID-19 Vaccine Mandate.

In the final blow to the sweeping requirements set to impact over 80 million workers across the nation and their employers, SCOTUS found that the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) exceeded the power given to them by Congress. This means that the requirements for employers with 100+ employees to implement policies that required employees to receive the COVID vaccine or wear masks and test weekly is dead in the water.

"Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," the court's majority said. "Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

Further, the court ruled that OSHA lacked the authority to impose such a mandate because the law that created OSHA "empowers the Secretary to set workplace safety standards, not broad public health measures."

"Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the Court ruled. "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases."

Alongside the ruling on the OSHA ETS case, the U.S. Supreme Court will allow a portion of the CMS mandate impacting an estimated 10 million health care workers to be enforced. The allowable portion of the CMS mandate requires vaccinations for health care workers who treat Medicare and Medicaid patients at facilities that receive federal funding.

In this ruling, the Court noted that "healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting."

Please check back with us as we work to source additional information and resources, particularly next steps for employers who may have already implemented requirements for their workforce, and taking the necessary steps to ensure you continue to meet your state requirements in your workplace.


SCOTUS Decision On Vaccine Mandate: How it Works

At 12 a.m. on January 13th, SCOTUS published a post that they would be live blogging as the court released opinions in one or more argued cases from the current term. Many experts quickly jumped to the conclusion that there was a high likelihood that the ruling on both the OSHA and CMS cases may be the highlight only to be very quickly disappointed. This early speculation led to a frustrating letdown today as SCOTUS did not release an opinion on the vaccine mandate.

If like many, you are watching the play-by-play in the news and just want a direct line to the ruling when it comes, here is some information, resources, and quick tips that may help you!

Decision Day

With SCOTUS decisions, it is not as simple as saying we will be able to tune in for X decision on X date. The U.S. Supreme Court does not set dates for releasing opinions but rather posts digitally to a public calendar when opinions will be released without noting what opinions will be included in that release. For example, SCOTUS updated its calendar yesterday for the remainder of January including the note that one new opinion would be released today. Of course, speculation began to fly as to whether the opinion released would be that on the OSHA/ETS cases.

SCOTUS Opinion Releases: How It Works

SCOTUS opinions are often accompanied by a public reading of at least part of the final decision read aloud by the Justice that authored the majority opinion. Opinions are often available for public consumption either via the live SCOTUS blog and/or a live stream (audio and/or video) on the SCOTUS website homepage. Opinion days are posted to the SCOTUS calendar and released at 10am EST on the posted calendar date. If you are watching the releases live there are a couple of good things to know:

  1. How do I know they have finished releasing opinions for a given day? Opinions are released with an associated number. These are the numbers that correspond to opinions in the left-most column on the court's opinion page. When the court releases multiple opinions on a single day, the R numbers don't appear until the court has released its final opinion of the day. So when an R number DOES appear (as it did for Babcock today), we can be sure the court is done for the day.
  2. Are there any exceptions? White flags of impatience were being raised across the SCOTUS blog this morning with many expecting and not getting the decision for the OSHA/CMS cases. Given that there are no additional opinion issuance dates on the SCOTUS calendar for the month of January, questions and frustrations began to fly. However, just because you don't see it on the calendar now, doesn't mean a decision is not imminent. 
    1. Opinion issuance days tend to only be scheduled a few days out. And with the opinion announcements purely electronic, we could theoretically get them even when the justices are theoretically on their winter recess -- a change from non-pandemic times.   
    2. Emergency applications are different: Rulings on the vaccine cases could technically come at any time (because they are on the emergency docket, so the court might not announce in advance when they are coming). 

Resources to Stay Up-To-Date with SCOTUS

SCOTUS Live Audio Feed

SCOTUS Official Opinions

SCOTUS Live Blog

SCOTUSBlog on Twitter

What Employers Should Do While Mandate Is In Limbo?

Make no mistake that both the OSHA ETS and the CMS Healthcare Mandate already have compliance obligations in effect, and you can’t wait until the Court decides in order to act.

While some employers are taking a more conservative approach opting to 'slow roll' plans, policies and issuance of guidance for employees, other employers are moving forward with full compliance anticipating the ETS surviving the Supreme Court. No matter which camp you are in, one of the most vital things needed is consistent and clear communications to your employees on what they can expect in the coming days and where the company stands in regard to implementation and requirements for Vax-or-Test policies.

Currently, OSHA is looking for good faith efforts that employers are beginning to take steps towards compliance with full implementation of the requirements beginning February 1, 2022. To better understand the implications of OSHA's timeline and the definition of 'good faith', please take a look at our more detailed post better outlining what employers need to know.


Vaccine Mandate Status: Mid-Week Update

Here we are mid-week, and employers across the nation impatiently await word from the U.S. Supreme Court as to whether they will allow the OSHA ETS requiring employers with 100 or more employees to implement vaccinate-or-test policies in the workplace.

Here's What We Know

The Supreme Court's decision is pending. Since hearing the oral arguments on Friday, January 7th, there has been plenty of speculation regarding where the ruling may land, or if the court will issue a brief administrative stay until a decision can be made. In the meantime, the first compliance deadline of the ETS is here, so what does that mean for employers awaiting this decision?

What Employers Need to Know

OSHA's initial deadline of January 10th is based upon good-faith efforts being made by employers. So, what is considered 'good-faith efforts'?

  • Employers should show that they are beginning to make efforts to comply with the mandate.
  • Company leadership should be communicating a clear approach to how they plan to comply with this new policy.
  • OSHA-covered employers must begin moving forward with a Vax-or-Test policy by
    • Determining the vaccination status of all its employees by obtaining acceptable proof of vaccination,
    • Maintain a roster of employee vaccination status,
    • Unvaccinated employees should be wearing face coverings,
    • Instate a policy for paid time off for vaccination and vaccination side effects,
    • Provide guidance on how employees should provide (prompt) notice of a positive COVID-19 test or diagnosis,
    • Ensure you are in compliance with not only the OSHA ETS, but also any state laws or mandates regarding testing, masking, vaccination, and PTO.

OSHA Suspends Implementation and Enforcement of ETS

On November 16, 2021, OSHA (Occupational Safety and Health Administration) published that the COVID-19 vaccination and testing ETS (Emergency Temporary Standard) is being put on hold due to pending litigation.

What We Know

  • The OSHA ETS went into effect on November 5th, 2021.
  • The ETS has two compliance dates important to employers with 100 or more employees.
  • December 5th: Employers were to finalize their policies on vaccine mandates and weekly testing requirements
  • January 4th: Employers were to be in compliance with weekly testing by this date.
  • The vaccine mandate has met legal challenges wherein on November 12, 2021, the 5th Circuit Court of Appeals upheld a stay. The stay order issued by the three-judge panel directs OSHA to “take no steps to implement or enforce” the ETS.
  • Until the stay is lifted or a ruling is reached, the ETS is not in effect and employers do not need to comply with the January 4, 2022 deadline. 
  • On November 16th, a federal appeals court in Cincinnati (the 6th Circuit Court of Appeals) has won the lottery to handle the consolidated case challenging the ETS. No date has been set on when this court will make a ruling.

The 5th Circuit Court of Appeals Ruling

On Nov. 12, 2021, the 5th Circuit Court of Appeals ruled to extend the stay of the OSHA ETS, stating the ETS imposes financial burdens on private employers. The court also claimed that the ETS fails to account for the different elements present between workplaces. Overall, the court raised substantial questions on whether OSHA has proven that COVID-19 presents a “grave danger” to workers and if the ETS is “necessary.”

Circuit Court Lottery

Attorneys general, employers, unions, and other organizations filed 34 petitions seeking review of the OSHA rule in 12 different circuit courts, according to the U.S. Judicial Panel on Multidistrict Litigation. All of the lawsuits concerning the ETS for all Circuit court districts were then consolidated and, through a "lottery drawing" the Judicial Panel on Multidistrict Litigation randomly determined which Circuit court would review the arguments.

On November 16th, a federal appeals court in Cincinnati (the 6th Circuit Court of Appeals) has won the lottery to handle the consolidated case challenging the ETS. No date has been set on when this court will make a ruling.

While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.

And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.

Next Steps for Employers

  1. Continue to monitor updates for changes in status to OSHA's ETS
  2. Be prepared in the event the ETS survives the upcoming litigation
  3. Remember employers still have a continued duty to make their workplaces safe for employees.

Statement from OSHA

OSHA released a statement on its website. The statement reads:

“On Nov. 12, 2021, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay OSHA’s ETS, published on Nov. 5, 2021 (86 Fed. Reg. 61402). The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation.”


OSHA ETS: Vaccination & Testing Requirements Published

OSHA ETS: Vaccination & Testing Requirements Published

UPDATE 11/5: OSHA has issued an extensive FAQ (https://www.osha.gov/coronavirus/ets2/faqs) to help employers navigate the newly published ETS. Employers are expected to comply with most provisions regarding the vaccination and testing of employees by December 5th.

ETS for COVID-19 Vaccination and Testing Released

 

Over the last several weeks, employers have been waiting for the official ETS to be released to provide clarity on the timeline for implementation, associated fines for non-compliance, as well as documentation and reporting requirements.

Today, November 4, 2021, OSHA (Occupational Safety and Health Administration) announced a federal emergency temporary standard (ETS) to address the health and safety risks associated with COVID-19 in the workplace. Currently, the document is unpublished and is offered for public review. The ETS is scheduled to be published on November 5, 2021.

With the official release of the unpublished ETS, requirements are now made clear. We would expect additional guidance and FAQs to be released in the coming days to provide crucial insight for employers navigating the new requirements.

 

 Who does the ETS impact?

  • Private employers with 100 or more employees
    • This is a company-wide employee count and not a per location count.

Timeline for employers to comply with the ETS

  • Most provisions will require compliance by December 5, 2021
  • Testing requirements must be met by January 4, 2021
  • State plans will have 30 days to adopt the federal ETS or implement their own standard. Those states are:
    • Alaska | Arizona | California | Hawaii | Indiana | Iowa | Kentucky | Maryland | Michigan | Minnesota | New Mexico | Nevada | North Carolina | Oregon | Puerto Rico | South Carolina | Tennessee | Utah | Vermont | Virginia | Washington | Wyoming

 

What are the ETS Requirements?

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; OR
  • Develop, implement and enforce a policy allowing employees to choose to either
    • get a vaccination or
    • wear a face-covering in the workplace and have weekly COVID-19 testing done.

Employer Responsibility Under the ETS

  • Determine the vaccination status of each employee
  • Obtain acceptable proof of vaccination
    • The record of immunization from a health care provider or pharmacy
    • A copy of the COVID-19 Vaccination Record Card
    • A copy of medical records documenting the vaccination
    • A copy of immunization records from a public health, state or tribal immunization information system
    • A copy of any other official documentation that contains the type of vaccine administered, date administered and name of the health care professional or clinic
    • Retain a roster of each employee’s vaccination status. These documents are considered to be employee medical records and must be maintained in accordance with 29 CFR 1910.1020. These records are not subject to regular retention requirements but must be retained while the ETS is in effect.
  • Any employee not able to provide one of the acceptable forms of proof of vaccination must be treated as not fully vaccinated for the purpose of the ETS. In instances where the employee is unable to produce acceptable proof of vaccination, per above a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information, including:
    • Attesting to their vaccination status (full or partial vaccination)
    • Attesting that they have lost or are otherwise unable to produce proof required by the ETS
  • The employer must report to OSHA:
    • Each work-related COVID-19 fatality within 8 hours of employer learning of the fatality
    • Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

 

ETS Weekly Testing Requirements

A COVID-19 test means a test for SARS-CoV-2 that is:

  • cleared, approved or authorized by the FDA
  • administered in accordance with authorized instructions
  • not self administer and self-read unless observed by the employer or an authorized telehealth proctor.

Testing Timeline and Who Must Test

  • An employee who reports at least once every 7 days to a workplace where others are present
    • Must be tested once every 7 days
    • Must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided test results
  • Employees who do not report during a period of 7 or more days to a workplace where other individuals are present
    • Must be tested within seven days prior to returning to the workplace
    • Must provide documentation of that test result to the employer upon return to the workplace
  • Employers are not required to cover the cost of the testing*
    • *Note: Employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

Who is Exempt from the ETS?

  • Employees who do not work with others present
  • Employees working from home
  • Employees who work exclusively outdoors
  • Employees covered under the Safer Federal Workforce Task Force
  • Employees under the Health Care ETS
  • Employers with fewer than 100 employees
  • Public employers in states without state plans
  • Employees holding a sincerely held religious belief must be allowed reasonable accommodation under the Equal Employment Opportunity Commission’s guidelines (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeco-laws).
  • Employees for whom a vaccine is medically contraindicated
  • Employees for whom medical necessity requires a delay in vaccination

 

What Paid Leave Provisions are in the ETS?

  • Employers are required to provide reasonable time for each employee to obtain each of their primary vaccination series and allow up to four hours of paid time at the employee’s regular rate of pay for this purpose
  • Reasonable time and paid sick leave are required for recovery from side effects of the vaccination
  • Employees must provide immediate notice of a positive COVID-19 test/diagnosis and must meet criteria before being allowed to return to work
    • No weekly testing will be required for 90 days following the date of their positive COVID-19 test or diagnosis
    • The employer must maintain a record of each test result provided by each employee
    • The employer must keep the employee removed from the workplace until the employee:
      • receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
      • meets the return to work criteria in CDC’s “Isolation Guidance”; or
      • receives a recommendation to return to work from licensed healthcare provider
      • The ETS does not require employers to provide paid time off to any employee for removal from the workplace due to a positive COVID-19 test or diagnosis

What Other Clarifications are in the ETS?

  • Prior COVID-19 Infection:
    • OSHA determined workers who have been previously infected with COVID-19 still face grave danger from workplace exposure and without additional supporting scientific evidence of immunity will still be required to comply with the standards set forth.
  • The basis for OSHA’s ‘grave danger’ finding is that employees can be exposed to the virus in almost any work setting; that exposure can lead to infection and that infection can cause death or serious impairment of health, particularly in the unvaccinated.
  • Although this ETS does not impose a strict vaccination mandate, OSHA has determined that, to adequately address the grave danger that COVID-19 poses to unvaccinated workers, a more proactive approach is necessary than simply requiring employers to make vaccination available to employees.
  • Although the ETS does not require all covered employers to implement a mandatory vaccination policy, OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt-out of the vaccination mandate option will not.
  • Under the ETS, fully vaccinated means a person’s status 2 weeks after completing primary vaccination or the second dose of a two-dose series with a COVID-19 vaccine
  • Clarification on what employers are impacted by the ETS were provided by OSHA through a series of examples:
    • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
    • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
    • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
    • If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
    • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
    • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
    • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
    • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
    • If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
    • If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
    • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.


ETS from OSHA on Vaccination and Testing Released

UPDATE 11/5:

OSHA has issued an extensive FAQ (https://www.osha.gov/coronavirus/ets2/faqs) to help employers navigate the newly published ETS. Employers are expected to comply with most provisions regarding the vaccination and testing of employees by December 5th.

ETS for COVID-19 Vaccination and Testing Released

Over the last several weeks, employers have been waiting for the official ETS to be released to provide clarity on the timeline for implementation, associated fines for non-compliance, as well as documentation and reporting requirements.

Today, November 4, 2021, OSHA (Occupational Safety and Health Administration) announced a federal emergency temporary standard (ETS) to address the health and safety risks associated with COVID-19 in the workplace. Currently, the document is unpublished and is offered for public review. The ETS is scheduled to be published on November 5, 2021.

With the official release of the unpublished ETS, requirements are now made clear. We would expect additional guidance and FAQs to be released in the coming days to provide crucial insight for employers navigating the new requirements.

Who does the ETS impact?

  • Private employers with 100 or more employees
    • This is a company-wide employee count and not a per location count.

Timeline for employers to comply with the ETS

  • Most provisions will require compliance by December 5, 2021
  • Testing requirements must be met by January 4, 2021
  • State plans will have 30 days to adopt the federal ETS or implement their own standard. Those states are:
    • Alaska | Arizona | California | Hawaii | Indiana | Iowa | Kentucky | Maryland | Michigan | Minnesota | New Mexico | Nevada | North Carolina | Oregon | Puerto Rico | South Carolina | Tennessee | Utah | Vermont | Virginia | Washington | Wyoming

What are the ETS Requirements?

  • Develop, implement and enforce a mandatory COVID-19 vaccination policy; OR
  • Develop, implement and enforce a policy allowing employees to choose to either
    • get a vaccination or
    • wear a face-covering in the workplace and have weekly COVID-19 testing done.

Employer Responsibility Under the ETS

  • Determine the vaccination status of each employee
  • Obtain acceptable proof of vaccination
    • The record of immunization from a health care provider or pharmacy
    • A copy of the COVID-19 Vaccination Record Card
    • A copy of medical records documenting the vaccination
    • A copy of immunization records from a public health, state or tribal immunization information system
    • A copy of any other official documentation that contains the type of vaccine administered, date administered and name of the health care professional or clinic
    • Retain a roster of each employee's vaccination status. These documents are considered to be employee medical records and must be maintained in accordance with 29 CFR 1910.1020. These records are not subject to regular retention requirements but must be retained while the ETS is in effect.
  • Any employee not able to provide one of the acceptable forms of proof of vaccination must be treated as not fully vaccinated for the purpose of the ETS. In instances where the employee is unable to produce acceptable proof of vaccination, per above a signed and dated statement by the employee, subject to criminal penalties for knowingly providing false information, including:
    • Attesting to their vaccination status (full or partial vaccination)
    • Attesting that they have lost or are otherwise unable to produce proof required by the ETS
  • The employer must report to OSHA:
    • Each work-related COVID-19 fatality within 8 hours of employer learning of the fatality
    • Each work-related COVID-19 in-patient hospitalization within 24 hours of the employer learning about the in-patient hospitalization.

ETS Weekly Testing Requirements

A COVID-19 test means a test for SARS-CoV-2 that is:

  • cleared, approved or authorized by the FDA
  • administered in accordance with authorized instructions
  • not self administer and self-read unless observed by the employer or an authorized telehealth proctor.

Testing Timeline and Who Must Test

  • An employee who reports at least once every 7 days to a workplace where others are present
    • Must be tested once every 7 days
    • Must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided test results
  • Employees who do not report during a period of 7 or more days to a workplace where other individuals are present
    • Must be tested within seven days prior to returning to the workplace
    • Must provide documentation of that test result to the employer upon return to the workplace
  • Employers are not required to cover the cost of the testing*
    • *Note: Employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

Who is Exempt from the ETS?

  • Employees who do not work with others present
  • Employees working from home
  • Employees who work exclusively outdoors
  • Employees covered under the Safer Federal Workforce Task Force
  • Employees under the Health Care ETS
  • Employers with fewer than 100 employees
  • Public employers in states without state plans
  • Employees holding a sincerely held religious belief must be allowed reasonable accommodation under the Equal Employment Opportunity Commission's guidelines (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeco-laws).
  • Employees for whom a vaccine is medically contraindicated
  • Employees for whom medical necessity requires a delay in vaccination

What Paid Leave Provisions are in the ETS?

  • Employers are required to provide reasonable time for each employee to obtain each of their primary vaccination series and allow up to four hours of paid time at the employee's regular rate of pay for this purpose
  • Reasonable time and paid sick leave are required for recovery from side effects of the vaccination
  • Employees must provide immediate notice of a positive COVID-19 test/diagnosis and must meet criteria before being allowed to return to work
    • No weekly testing will be required for 90 days following the date of their positive COVID-19 test or diagnosis
    • The employer must maintain a record of each test result provided by each employee
    • The employer must keep the employee removed from the workplace until the employee:
      • receives a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing;
      • meets the return to work criteria in CDC’s “Isolation Guidance”; or
      • receives a recommendation to return to work from licensed healthcare provider
      • The ETS does not require employers to provide paid time off to any employee for removal from the workplace due to a positive COVID-19 test or diagnosis

What Other Clarifications are in the ETS?

  • Prior COVID-19 Infection:
    • OSHA determined workers who have been previously infected with COVID-19 still face grave danger from workplace exposure and without additional supporting scientific evidence of immunity will still be required to comply with the standards set forth.
  • The basis for OSHA's 'grave danger' finding is that employees can be exposed to the virus in almost any work setting; that exposure can lead to infection and that infection can cause death or serious impairment of health, particularly in the unvaccinated.
  • Although this ETS does not impose a strict vaccination mandate, OSHA has determined that, to adequately address the grave danger that COVID-19 poses to unvaccinated workers, a more proactive approach is necessary than simply requiring employers to make vaccination available to employees.
  • Although the ETS does not require all covered employers to implement a mandatory vaccination policy, OSHA expects that employers that choose that compliance option will enjoy advantages that employers that opt-out of the vaccination mandate option will not.
  • Under the ETS, fully vaccinated means a person's status 2 weeks after completing primary vaccination or the second dose of a two-dose series with a COVID-19 vaccine
  • Clarification on what employers are impacted by the ETS were provided by OSHA through a series of examples:
    • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
    • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
    • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
    • If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
    • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
    • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
    • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
    • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
    • If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
    • If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
    • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

IRS Issues New HSA and HRA limits

The IRS issued Revenue Procedure 2021-25 on May 10, 2021, to announce the 2022 inflation-adjusted amounts for health savings accounts (HSAs) under Section 223 of the Internal Revenue Code (Code) and the maximum amount that may be made newly available for excepted benefit health reimbursement arrangements (HRAs).


HSA Limits

HIGHLIGHTS:

Individuals with HDHP: $3,650

Family with HDHP: $7,300

 

ALL THE DETAILS:

For calendar year 2022, the HSA annual limitation on deductions for an individual with self-only coverage under a high deductible health plan is $3,650. The 2022 HSA annual limitation on deductions for an individual with family coverage under a high deductible health plan is $7,300. The IRS guidance provides that for calendar year 2022, a “high deductible health plan” is defined as a health plan with an annual deductible that is not less than $1,400 for self-only coverage or $2,800 for family coverage, and the annual out-of-pocket expenses (deductibles, copayments, and other amounts, but not premiums) do not exceed $7,050 for self-only coverage or $14,100 for family coverage.


HRA Limits

HIGHLIGHTS:

Max Amount: $1,800

ALL THE DETAILS:

For plan years beginning in 2022, the maximum amount that may be made newly available for the plan year for an excepted benefit HRA is $1,800. Treasury Regulation §54.9831-1(c)(3)(viii)(B)(1) provides further explanation of the calculation.

 


Compliance Check - April 2021

OVERVIEW

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 Heathcare.gov 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 Healthcare.gov platform. Individuals can check their eligibility for this SEP on Healthcare.gov.

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.

COBRA

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.


ACA Reporting Deadlines Quickly Approaching

Affordable Care Act (ACA) reporting under Section 6055 and Section 6056 for the 2020 calendar year is due in early 2021.  Specifically, reporting entities must:

  • File returns with the IRS by March 1, 2021, since Feb. 28, 2021, is a Sunday (or March 31, 2021, if filing electronically); and
  • Furnish statements to individuals by March 2, 2021.

Originally, individual statements were due by Jan. 31, 2021. However, on Oct. 2, 2020, the Internal Revenue Service (IRS) issued Notice 2020-76 to extend the furnishing deadline.

Notice 2020-76 does not extend the due date for filing forms with the IRS for 2020. Notice 2020-76 also provides additional penalty relief related to furnishing forms to individuals under Section 6055.

Action Steps

Despite the delay, the IRS is encouraging reporting entities to furnish statements as soon as they are able. No request or other documentation is required to take advantage of the extended deadline.

Section 6055 and 6056 Reporting

  • Section 6055 applies to providers of minimum essential coverage (MEC), such as health insurance issuers and employers with self-insured health plans. These entities generally use Forms 1094-B and 1095-B to report information about the coverage they provided during the previous year.
  • Section 6056 applies to applicable large employers (ALEs)—generally, those employers with 50 or more full-time employees, including full-time equivalents, in the previous year. ALEs use Forms 1094-C and 1095-C to report information relating to the health coverage that they offer (or do not offer) to their full-time employees.

The ACA’s individual mandate penalty was reduced to zero beginning in 2019. As a result, the IRS has been studying whether and how the Section 6055 reporting requirements should change, if at all, for future years. Despite the elimination of the individual mandate penalty, Section 6055 reporting continues to be required, although transition relief from penalties is available in some situations, as described below. Under this relief, individual statements do not have to be furnished if certain requirements are met.

 

Standard Deadlines

Generally, forms must be filed with the IRS annually, no later than Feb. 28 (March 31, if filed electronically) of the year following the calendar year to which the return relates. In addition, reporting entities must also furnish statements annually to each individual who is provided MEC (under Section 6055), and each of the ALE’s full-time employees (under Section 6056). Individual statements are generally due on or before Jan. 31 of the year immediately following the calendar year to which the statements relate.
As noted above, individual statements do not have to be provided under Section 6055 if certain requirements are met.
However, filing with the IRS is still required, and this relief does not apply to Section 6056.

 

Extended Furnishing Deadline

The IRS has again determined that some employers, insurers and other providers of MEC need additional time to gather and analyze the information, and prepare 2020 Forms 1095-B and 1095-C to be furnished to individuals. For 2020, the furnishing deadline was Feb. 1, 2021, since Jan. 31, 2021, is a Sunday. Notice 2020-76 provides an additional 30 days for furnishing the 2020 Form 1095-B and Form 1095-C, extending the due date from Feb. 1, 2021, to March 2, 2021.

Despite the delay, employers and other coverage providers are encouraged to furnish 2020 statements to individuals as soon as they are able. 

Filers are not required to submit any request or other documentation to the IRS to take advantage of the extended furnishing due date provided by Notice 2020-76. Because this extended furnishing deadline applies automatically to all reporting entities, the IRS will not grant additional extensions of time of up to 30 days to furnish Forms 1095-B and 1095-C. As a result, the IRS will not formally respond to any requests that have already been submitted for 30-day extensions of time to furnish statements for 2020.

 

Impact on the Filing Deadline

The IRS has determined that there is no need for additional time for employers, insurers and other providers of MEC to file 2020 forms with the IRS. Therefore, Notice 2020-76 does not extend the due date for filing Forms 1094-B, 1095-B, 1094-C or 1095-C with the IRS for 2020.

This due date remains:

  • March 1, 2021, if filing on paper (since Feb. 28, 2021, is a Sunday); or
  • March 31, 2021, if filing electronically.

Because the due dates are unchanged, potential automatic extensions of time for filing information returns are still available under the normal rules by submitting a Form 8809. The notice also does not affect the rules regarding additional extensions of time to file under certain hardship conditions.

 

Penalty Relief Regarding the Furnishing Requirement Under Section 6055 for 2020

The individual mandate penalty has been reduced to zero, beginning in 2019. As a result, an individual does not need the information on Form 1095-B in order to calculate his or her federal tax liability or file a federal income tax return. However, reporting entities required to furnish Form 1095-B to individuals must continue to expend resources to do so.

Therefore, Notice 2020-76 provides relief from the penalty for failing to furnish a statement to individuals as required under Section 6055 for 2020 in certain cases. Specifically, the IRS will not assess a penalty under Section 6722 against reporting entities for failing to furnish a Form 1095-B to responsible individuals in cases where the following two conditions are met:

  • The reporting entity prominently posts a notice on its website stating that responsible individuals may receive a copy of their 2020 Form 1095-B upon request, accompanied by an email address and a physical address to which a request may be sent, as well as a telephone number that responsible individuals can use to contact the reporting entity with any questions; and
  • The reporting entity furnishes a 2020 Form 1095-B to any responsible individual upon request within 30 days of the date the request is received. The reporting entity may furnish these statements electronically if it meets the requirements for electronic furnishing.

ALEs that offer self-insured health plans are generally required to use Form 1095-C, Part III, to meet the Section 6055 reporting requirements, instead of Form 1095-B. This 2020 Section 6055 furnishing penalty relief does not extend to the requirement to furnish Forms 1095-C to full-time employees. As a result, for full-time employees enrolled in self-insured health plans, penalties will continue to be assessed consistent with prior enforcement policies for any failure by ALEs to furnish Form 1095-C, including Part III, according to the applicable instructions. However, the 2020 Section 6055 furnishing penalty relief does extend to the requirement to furnish the Form 1095-C to any non-full-time employees enrolled in an ALE’s self-insured health plan, subject to the requirements of the 2020 Section 6055 furnishing penalty relief.

The 2020 Section 6055 furnishing penalty relief also does not affect the requirement or the deadline to file the 2020 Forms 1094-B, 1095-B, 1094-C or 1095-C, as applicable, with the IRS.


Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions

Due to the amount of job losses caused by the coronavirus, President Trump has signed a series of executive orders to provide financial relief. Read this blog post to learn more.


On Aug. 8, President Donald Trump signed a series of executive orders and memorandums intended to provide financial relief to employees and those who have lost their jobs due to the COVID-19 pandemic.

These declarations included a Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, which directed the Treasury Department to defer collection of the employee portion of Social Security FICA taxes—part of required payroll tax withholding—from Sept. 1 through the end of 2020. The deferred taxes may have to be subsequently repaid unless Congress enacts legislation stating otherwise.

Trump cited his authority to postpone certain tax deadlines by reason of a presidentially declared disaster. Democrats, however, are expected to challenge that claim in court. Nevertheless, it is prudent for employers and payroll managers to stay aware of developments and prepare to move quickly if the directive and upcoming guidance are not blocked or superseded by enactment of a comprehensive relief bill.

Payroll tax relief, as outlined in the president's directive, would require employers to take steps to ensure compliance, including working with their payroll administrators to adjust their systems by Sept. 1. Employers would also need to explain to employees that while their take-home pay may go up in the short term, they may be required to repay these deferred taxes at a future date.

Details on employer requirements, however, would depend on Treasury Department guidance, expected to be issued shortly.

The other presidential actions authorized a weekly supplemental federal unemployment benefit of up to $400, reduced from the $600 weekly supplement that expired July 31; continued student loan payment relief; and called for measures to prevent residential evictions and foreclosures resulting from financial hardships due to COVID-19.

 

Reduced Unemployment Insurance Supplement

Republicans in Congress argued that the initial $600 federal supplemental payment disincentivized recipients from seeking jobs, since many were collecting more money unemployed than employed. Some wanted the program reduced to $200 per week, while Democrats argued the program should be renewed at the original $600 per week.

Questions were raised about funding for the $400 unemployment insurance boost, which would pull from FEMA's Disaster Relief Fund to pay for a portion of the supplemental benefits while asking states to fund the remainder. Because states may not use the unemployment program to pay benefits unless they are authorized by Congress, they may have to set up a new system to pay their portion of the supplement.

Unemployment experts were also unsure about how funds will be distributed, who will qualify for benefits and how long the benefits will last, pending regulatory guidance.

FICA Taxes

Social Security and Medicare payroll taxes are collected together as the Federal Insurance Contributions Act (FICA) tax. FICA tax rates are statutorily set and are not adjusted for inflation.

Social Security is financed by a 12.4 percent payroll tax on wages up to employees' taxable earnings cap—$137,700 for 2020—with half (6.2 percent) paid by workers and the other half paid by employers. There is no earnings cap on the Medicare portion of FICA, for which employers and employees separately pay a 1.45 percent wage tax.

The COVID-19-related payroll tax relief only applies to the Social Security portion of FICA.

The Payroll Tax Directive

Section 2302 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted in March and implemented through IRS Notice 2020-22 and a series of IRS FAQs, allows eligible employers to defer the deposit and payment of the employer's share of Social Security FICA taxes for the period beginning March 27, 2020, through Dec. 31, 2020. The deferral also applies to 50 percent of the equivalent taxes incurred by self-employed persons. The deferred payments must subsequently be paid to the Treasury Department, with half due by Dec. 31, 2021, and the other half by Dec. 31, 2022.

The CARES Act provision and related guidance did not apply to employees' share of the Social Security tax.

Under the new presidential directive:

  • The secretary of the treasury is authorized to defer the withholding, deposit and payment to the Treasury of employees' portion of Social Security payroll taxes on applicable wages or compensation paid from Sept. 1, 2020, through Dec. 31, 2020. This provision does not apply to the Medicare portion of FICA taxes.
  • The deferral is to be made available to employees whose earnings during any biweekly pay period is generally less than $4,000, calculated on a pretax basis, which would cover salaried employees earning $104,000 or less per year.
  • Social Security taxes for these employees will be deferred without any penalties, interest, additional amount or addition to the tax.
  • The secretary of the treasury is directed to issue guidance to implement the president's memorandum and to explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred under the implementation of the memorandum.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, blogged that HR lawyers will have until Sept. 1 "to figure out the details." Because the policy terminates on Dec. 31, 2020, "President Trump, or President Biden, will be forced to decide whether to continue this program," he wrote.

A Controversial Move

"By providing this tax relief, American families will have more cash on hand during these critical next few months," according to a White House statement.

White House economic advisor Larry Kudlow said that "we will take any steps possible to forgive this deferral," so employees will not be required to pay back the amounts deferred through Dec. 31, The Hill reported. However, doing so would require new legislation by Congress.

Presumptive Democratic presidential nominee Joe Biden charged that Trump would try to make the cuts permanent if re-elected and said doing so would "undermine the entire financial footing of Social Security."

Prepare to Adjust Systems and Notify Employees

For now, HR payroll managers should:

  • Discuss with their payroll administrators steps to adjust their payroll systems to exclude employees' share of FICA Social Security taxes beginning Sept. 1, pending the issuance of Treasury guidance.
  • Prepare to notify employees that possibly less of their pay will be subject to payroll withholding, although the reduction in payroll taxes may have to be paid back in the future.
  • Expect questions from employees who may be confused about current and future paycheck adjustments.

Employers' Questions Await Guidance

The president's executive memorandum "leaves open a number of questions and issues, some of which will likely be addressed by guidance from Treasury," according to a legal alert by Adam Cohen, Mary Monahan and Robert Neis, partners at law firm Eversheds Sutherland in Washington, D.C. Issues to be addressed, they said, include:

  • Whether the deferral is voluntary on the part of employers, and whether an employer may deposit and pay employees' deferred taxes at any time prior to the applicable due date.
  • Whether employers will be required to withhold all of the deferred amounts from the first paycheck on or after January 2021, or if there be an extended time for collection and deposit? "A lump sum repayment could cause significant financial hardship for some employees, particularly if it is required right after the holiday season," Cohen, Monahan and Neis noted.
  • What to do with respect to employees who terminate employment before Jan. 1, 2021. "To the extent the employee portion of [Social Security payroll taxes] was deferred, an employer may want to withhold it from paychecks prior to termination of employment, unless there is guidance permitting the employee to pay the deferred portion on their federal income tax return or by other means," the attorneys explained. "For lower-paid employees, this may eliminate one or more paychecks at the end of their tenure. In some situations, the employer may end up bearing the cost of the taxes as a practical matter."
  • Whether an employer can use the deferral with respect to some groups of qualifying employees, but not others, where that may be desirable for payroll administration or other reasons.
  • How overtime pay or other variable pay, such as commissions and bonuses, should be taken into account in calculating the $4,000 threshold. "It appears that base pay or wages may be the proper metric in most cases, but further elaboration by Treasury is needed," Cohen, Monahan and Neis said.

A Wait and See Approach

Melissa Ostrower and Robert Perry, principals in the New York City office of law firm Jackson Lewis, "recommend that employers continue to monitor applicable guidance, but not make any changes to their payroll withholding processes at this time."

They added, "We realize that changes to payroll systems require lead time, but given the uncertainty surrounding how the deferral will be implemented and whether it actually will become effective, we think this is the most prudent course at this time."

SOURCE: Miller, S. (10 August 2020) "Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/actions-on-payroll-taxes-and-unemployment-benefits-promise-relief-raise-questions.aspx