Frequently Asked Questions

September 14, 2021

FAQ: What is a MERP, and what are the compliance obligations associated with one?

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A medical expense reimbursement plan, or MERP, is a type of HRA meant to assist employees with their medical expenses. While specially named, for all compliance-related purposes, a MERP functions and should be treated like an HRA. Specifically, a MERP (like an HRA) is a 100% employer-funded account that reimburses employees (and their spouses/dependents) for incurred medical expenses on a tax-advantaged basis (the MERP reimbursements are not included in the gross income of the employees). There are no employee pre-tax contributions towards MERPs, so there are no related Section 125 compliance issues. Employers sometimes offer MERPs alongside a medical plan or to a specific group of employees.

Generally, compliance issues posed by a MERP will depend on the structure of the MERP itself, including the group of employees eligible for the MERP, the types of expenses that qualify for reimbursement, the maximum reimbursement amount, and the types of plans it is coupled with (including an HDHP/HSA plan). Below are a few of the compliance considerations when offering a MERP.

First, the Section 105 nondiscrimination rules apply directly to self-insured plans, and MERPs are considered a type of self-insured plan. Generally, the nondiscrimination rules prohibit plan designs from favoring highly compensated individuals (HCIs, defined very generally as the top-25% of all employees with respect to compensation, although it also includes a top-five-paid officer and a more-than-10% shareholder/owner). If a MERP is offered to a classification of employees that consists primarily of HCIs, the MERP would likely be viewed as favoring HCIs. The general consequence is that the HCIs would lose the tax benefits associated with the plan (the reimbursements, or a portion thereof, would become taxable to the HCI). So, if the MERP is offered only to a group of executives or managers (which is a common MERP design), then it is likely to have trouble with the nondiscrimination rules.

Second, if the MERP is offered alongside an HDHP/HSA plan, then the MERP will likely cause employees in those plans to lose HSA eligibility. This is because a MERP is generally considered “first dollar” (impermissible) coverage, since it is reimbursing coverage under the statutory minimum deductible for HSA-qualifying HDHP plans. So, employers should consider offering a MERP alongside a non-HDHP plan so that there's no HSA issue, and then make it available to anyone that enrolls in that non-HDHP plan so that there's no nondiscrimination issue. Another possibility is to offer a MERP in lieu of the HSA option, as the primary way to assist employees with the cost-shifting burden of a low deductible.

A third issue is the ACA. The ACA’s employer mandate requires an offer of coverage to any employee working 30 hours or more per week, and a MERP will not generally constitute an offer of coverage. So, a stand-alone MERP offering (in lieu of major coverage) may not meet the employer mandate offer requirement. Further, the ACA requires HRAs to be integrated with a group health plan — so the MERP should be offered alongside an employer plan (integrated) anyway. If it is not integrated, then the MERP on its own (considered a group health plan subject to ACA) would violate at least two of the ACA's requirements: coverage of preventive services without cost-sharing and prohibition on annual dollar limits for essential health benefits. So, the MERP should be offered alongside the employer's major medical plan rather than as a stand-alone MERP, as a way to avoid these ACA issues.

Lastly, a MERP would generally be considered a group health plan, and that means it must comply with ERISA, COBRA, and other benefit laws and regulations. The best approach is to build the MERP in as a component benefit of the group health plan itself. If it is integrated, then the plan as a whole (bundled together) will satisfy ERISA, COBRA and other compliance requirements. If it's offered on its own, the MERP would have to meet those requirements independently (e.g., the MERP must have its own plan docs). In addition, wherever the MERP benefits are described, it is important to clearly outline eligibility, MERP reimbursement limits, and the types of medical expenses that could potentially be reimbursed. Some MERPs limit the types of expenses to dental and vision only, which would create a limited purpose type of HRA, and that could eliminate the HSA and some ACA issues above. Regardless, a clear description and communication of MERP benefits will help employees clearly understand what they are getting with the MERP.

August 31, 2021

FAQ: How does an individual qualify for the 11-month extension under COBRA for a total of 29 months maximum coverage period?

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There are three conditions that must be satisfied for an individual to qualify for the 11-month COBRA coverage extension for a total maximum coverage period of 29 months.

The first condition is that the qualified beneficiary’s (QB’s) initial COBRA triggering event must be the employee’s termination of employment or reduction of hours.

The second condition is that the Social Security Administration must determine that the QB is disabled during the first 60 days of COBRA coverage. The QB can be the employee, spouse or child. The QB’s disability determination may have occurred before the COBRA effective date.

The third condition is that the QB or the employee must notify the plan administrator in a timely manner of their disability determination. They must do so within 60 days of any one or more of the following, whichever is later:

  • The date of the disability determination.
  • The COBRA triggering event date.
  • The date that the QB lost coverage under the group plan due to the triggering event.
  • The date in which the employee was notified of their obligation to provide notice either through a COBRA Initial Notice or SPD- whichever date is later. Note that the COBRA Initial Notice and SPD should have been provided to the employee when they were initially enrolled in coverage under the employer's plan. The COBRA Initial Notice must also be provided to covered spouses upon enrollment. This is one reason why the COBRA Initial Notice is so important.

Keep in mind, though, that the third condition is currently impacted by the extension of certain time frames relief that was provided due to the COVID-19 pandemic. Specifically, recent IRS guidance on the ARPA COBRA premium assistance clarifies that individuals who received a disability determination from March 2020 through now (and ongoing) will be entitled to a year and 60 days to notify the employer of their disability determination.

If all of these conditions are met, the maximum coverage period extends to 29 months. The extension applies to all QB family members. The employer may charge up to 150% of the premium or premium equivalent during the 11-month extension as opposed to the normal 102%.

The ARPA does not extend a QB’s maximum coverage period, but does provide a subsidy for the premiums if they lost coverage due to reduction of hours or involuntary termination of employment. You can find more information about this in our article in the May 25, 2021, edition of Compliance Corner.

August 17, 2021

FAQ: What happens to health FSA balances when an employer acquires another entity?

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Business reorganizations are complex transactions that can impact benefit administration in a variety of ways. One common issue concerns handling health FSA balances of acquired employees.

If health FSA terms are not negotiated during the transaction, certain default rules apply depending upon whether an asset or stock purchase occurred. An asset purchase occurs when the buyer purchases some or all of the seller’s assets (and may also be assuming certain liabilities). Employees of the purchased entity would normally be considered terminated employees of the seller. However, these employees will often be rehired by the buyer. In contrast, a stock purchase occurs when a buyer purchases all of the stock or ownership in the seller’s business (or a unit thereof). Employees of the purchased business would continue to be employed by the same legal entity; however, the ownership of that entity is transferred from seller to buyer.

With an asset purchase, this typically results in termination of the former employee’s participation in the seller's health FSA and the possibility of a health FSA forfeiture (and COBRA rights). However, the IRS provides two ways the existing balances under the seller’s plan can transfer following the closing date of the transaction. One option allows the buyer to cover the rehired employees under its health FSA for the remainder of the plan year. The employees' account balances (whether underspent or overspent) under the seller's health FSA are rolled over to the buyer's health FSA. The other option is that the parties could agree to have the rehired employees continue to participate in the seller’s health FSA plan for a period of time, such as the end of the plan year.

If the transaction is a stock purchase, then the default rules are a little different. In the instance where the acquired business maintains its own cafeteria plan and the plan is continued following the transaction, the acquired employees' health FSA elections would continue uninterrupted. Alternatively, the plan could be terminated prior to the transaction closing. In this event, acquired employees should be given as much advance notice as possible so that they have an opportunity to use account balance and avoid forfeitures. Generally, there will be no COBRA rights in this instance because there is no termination of employment and therefore no COBRA qualifying event.

Additionally, informal guidance from the IRS indicates that employees of the acquired business are permitted to be brought into the buyer's cafeteria plan midyear (at the time of the closing) with the same level of health FSA coverage and the same salary reduction elections as they had under the acquired company’s cafeteria plan at the time of the sale. In this situation, the buyer would have to make appropriate amendments to its plan.

The agreed upon approach for the transition should be incorporated in the purchase agreement, so each party’s obligations are clearly defined. Cafeteria plan amendments will likely also be necessary, as will clear communication with employees. Importantly, while the IRS provides default rules for health FSAs and business reorganizations, employers should consult with counsel on this matter.

August 3, 2021

FAQ: How should an employer claim a tax credit for ARPA premium assistance during a quarter when they did not learn about a qualified beneficiary’s eligibility until a subsequent quarter?

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ARPA’s premium subsidy period begins on April 1, 2021, and ends on September 30, 2021, so it covers the entire second and third quarters of the calendar year. Since individuals have up to 60 days to notify employers that they are assistance eligible individuals (AEIs), it is possible that they would not provide that notice of premium assistance for the second quarter until after the third quarter has already begun. For instance, an individual might be laid off on May 31, 2021, but not notify the plan of the need for assistance beginning on June 1, 2021 (during the second quarter) until July 15, 2021 (during the third quarter).

Employers claim their credit for providing premium assistance on Form 941, which is filed on a quarterly basis. If the employer provided COBRA subsidies to eligible beneficiaries in April, May and June, the ARPA tax credit for these amounts should be claimed on the second quarter Form 941 due August 2. Under normal circumstances, any corrections to information provided in a Form 941 must be made by filing Form 941-X. However, IRS guidance indicates that the employer becomes eligible to claim the credit once they become aware of the AEI's eligibility and the qualified beneficiaries' premiums are paid for them. So, if an employer is notified in the third quarter of an employee's eligibility for the second quarter, they can claim the credit for the third quarter by filing in the fourth quarter. To continue with the example above, the employer could claim the credit for the month of June, as well as any months in the third quarter during which the AEI received premium assistance, on the Form 941 filed for the third quarter (which is due on October 31).

Employers should consult with their tax or payroll advisors concerning any specific issues with filing Form 941.

July 20, 2021

FAQ: If an employee is on a leave of absence, can they still contribute to a health FSA, dependent care FSA or HSA? Also, must employer HSA contributions continue during the leave period?

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The handling of health FSA contributions while an employee is on a leave of absence depends upon the type of leave and the employer’s leave policies.

For FMLA leave, the employer must maintain the same group medical benefits, which include health FSA benefits, during the leave as if the employee was still working. So, the employee must be allowed to continue contributing to the health FSA for the leave period.

In such an event, arrangements should be made for the employee on FMLA leave to pay the health FSA contribution. The three options permitted are pre-payment (prior to the leave), pay-as-you-go (meaning at regular intervals during the leave, which would be post-tax for an unpaid leave) and catch-up (i.e., upon return from leave). The employer cannot offer pre-payment as the only option.

However, the employee is not required to make contributions during FMLA leave. If the employer requires the health FSA coverage to continue during the leave, the employee could cease contributions during the leave period (and then make catch-up contributions upon return). But an employer cannot require continuation of coverage during FMLA leave, unless also required for a non-FMLA leave of absence.

Alternatively, the employer could permit the employee to revoke the health FSA coverage during the leave (and be reinstated upon return). If the employee revokes the coverage, the employee is not entitled to reimbursement for health FSA claims incurred during the period the coverage was not in place.

USERRA also provides certain benefit rights for employees on a leave of absence for military service. Employees on USERRA leave must have the right to continue the health FSA coverage during the leave and are generally offered the same three payment options as those on FMLA leave (noted above). The employee may also be permitted to revoke coverage during the leave, subject to reinstatement upon return.

For other types of leave, the employer should review their cafeteria plan terms and leave policies to determine how the health FSA benefits should be addressed during the leave. These terms and policies should be clearly communicated and consistently applied to all similarly situated employees.

With respect to dependent care FSAs, an employer is not required to allow contributions to continue during the leave. The employee could be permitted to continue such contributions and, as with health FSA contributions, be offered the options of pre-payment, pay-as-you-go or catch-up contributions.

However, the employee may instead prefer to revoke or decrease the dependent care FSA contribution during the leave period because the employee will not have dependent care expenses that are eligible for reimbursement. Under IRS rules, dependent care expenses are generally only reimbursable if for the purpose of enabling the employee (or spouse) to be gainfully employed, (although there is an exception for short absences of two consecutive weeks or less). Additionally, the applicable qualifying event rules allow an employee to change a dependent care FSA election because of any change in daycare use, provider or cost. So, the employee should be made aware of the option to stop the contributions for the leave period (and make a new election upon return).

An HSA is not coverage under a group medical plan that must be continued during FMLA, USERRA or other types of leave. Rather, an HSA is a trust or custodial account owned by the employee. If permitted under the terms of the HSA program, an employee on a leave of absence may continue to contribute to the HSA, provided that the HDHP coverage is maintained during the leave period. If the leave is unpaid, the employee may prefer to cease HSA contributions for the leave period and then make a new election to resume HSA contributions upon return. Under a cafeteria plan, an employee must be permitted to change HSA elections at least monthly, for any reason. 

Employers are not required to make employer HSA contributions for employees on a leave of absence, even if the leave is protected leave (such as FMLA). So, an employer may discontinue employer HSA contributions for an employee on leave (with no catch-up upon return).  However, if the employer chooses to make HSA contributions for employees on non-protected leave, the contributions must be made for those on protected leave. The employer’s policy with respect to HSA contributions should be clearly defined in their leave policies and HSA program.

Accordingly, whether health FSA, dependent care FSA and HSA contributions continue during a leave period depends upon the type of leave, employer policy and, as applicable, options elected by the employee. Therefore, it is imperative that the employer’s cafeteria plan document, leave policies and other benefit materials clearly reflect how the health FSA, dependent care FSA and HSA contributions and benefits will be addressed during the leave period. This information should be clearly communicated to affected employees, so they are aware of their options and obligations for the leave period.

July 7, 2021

FAQ: When do small health and welfare plans become subject to the Form 5500 filing requirement?

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The annual Form 5500 filing must be filed by plan sponsors that are subject to ERISA, unless there is an exception. One such exception is the small plan exception that applies to small unfunded, fully insured or combination unfunded and fully insured health and welfare plans that cover fewer than 100 participants on the first day of the plan year. In other words, an employer only needs to file a Form 5500 for a given plan year if there were 100 or more participants on the first day of the plan year; exceeding that threshold mid-year is of no consequence until the following plan year. (For calendar year plans, the plan would have to have 100 participants on January 1 to be subject to the Form 5500 requirement for that year.)

Importantly, when counting participants for this purpose, employers must count all participants who are enrolled in the plan. Benefits that are wrapped together for plan document purposes (i.e., established with a single plan document) would need to have all distinct participants counted when determining whether the small plan exception applies. As an example of this, an employer with a wrapped plan consisting of medical, dental and vision benefits would need to file a Form 5500 if there were 75 medical participants, 40 dental participants (20 of whom are not on the medical plan), and 35 vision participants (10 of whom are not on the medical or dental plan); this is because the distinct participants in each group equal more than 100 participants in the wrapped plan (75+20+10=105).

Plan sponsors should work with their service providers to ensure their compliance with the Form 5500 annual filing requirements. Employers who have engaged in compliance failures with regards to the Form 5500 can explore the DOL’s delinquent filer voluntary compliance program.

June 22, 2021

FAQ: Are employers required to collect attestation forms from individuals who are eligible for the ARPA COBRA premium assistance in order to apply for and obtain the tax credit?

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Employers who seek a tax credit for providing the ARPA COBRA premium assistance must collect and maintain documentation to substantiate that the individuals who received the assistance are in fact eligible for it. This would include documentation confirming that the individual experienced a reduction in hours or involuntary termination as well as documentation confirming that they are not eligible for other group health plan coverage or Medicare.

The IRS’ guidance does not require employers to obtain a self-certification or attestation if the employer has other documentation to substantiate that the individual was eligible for the COBRA premium assistance. Examples of other documentation include employment records concerning a reduction in hours or involuntary termination of employment.

However, since individuals are only eligible for premium assistance if they are ineligible for other group health plan coverage or Medicare, employers will likely need to obtain an attestation from the individual reflecting that they do not have that access to such disqualifying coverage.

Ultimately, the attestation may be the easiest way to substantiate that the person receiving the premium assistance is eligible for it, but the employer may also rely upon their employment records to substantiate the individual’s status as an assistance-eligible individual.

June 8, 2021

FAQ: What is a “minimum essential coverage” (MEC) plan? Can an applicable large employer offer an MEC plan to comply with the employer mandate?

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Prior to January 1, 2019, all US taxpayers and dependents had to maintain a certain level of health insurance, minimum essential coverage (MEC), or pay a tax penalty. This was known as the "individual mandate" or "individual shared responsibility." There is no longer a penalty attached to the federal requirement for individuals to maintain MEC. However, several states have implemented a state version of the requirement.

An employer with 50 or more full-time employees, including equivalents (otherwise known as an “applicable large employer” or ALE), must comply with two conditions of an employer shared responsibility imposed by federal law. If an ALE fails to meet this "employer mandate," then it is at risk for two penalties. Each penalty corresponds with one of the two conditions of the employer mandate. Penalty A requires employers to offer MEC to at least 95% of full-time employees and their dependent children. This is one reason that it is important for employers to correctly identify employees versus independent contractors and full-time employees versus part-time employees. If they were to incorrectly classify more than 5% of their population and fail to offer coverage to those workers, the penalty is $2,700 (in 2021) times each full-time employee (minus the first 30 employees).

Penalty B requires employers to offer each full-time employee coverage meeting minimum value and affordability thresholds. Minimum value is a higher threshold than MEC. Minimum value must include hospitalization and prescription coverage. In contrast, MEC only needs to provide coverage for preventive care.

Affordability is measured by applying one of the three employer safe harbor tests to the employee's required monthly contribution for the lowest cost self-only coverage tier.

  • Rate of Pay: The employee's required contribution is 9.83% (2021) or less of the employee's monthly salary. If the employee is hourly, the contribution is 9.83% or less of the employee’s hourly rate times 130 hours (regardless of the number of hours worked). Importantly, an employer cannot use this method for tipped or commissioned employees.
  • Form W-2: The employee’s required contribution is 9.83% or less of the employee’s 2021 Box 1 earnings. Box 1 includes tips, wages, overtime, bonuses, commissions, etc., but does not include pre-tax retirement and health contributions.
  • Federal Poverty Level: The employee’s required contribution is 9.83% or less of the federal poverty level. The 2021 contribution threshold would be $104.52 or less per month.

An ALE must meet both Penalty A and Penalty B conditions to comply with the employer mandate. If it only offers MEC, any full-time employee who waives that coverage in favor of purchasing individual coverage in the exchange with a premium tax credit would trigger a penalty for the employer. Alternatively, if an employer offers an MEC along with a minimum value/affordable plan, both requirements would be met regardless of whether the employees waive coverage, enroll in the MEC or enroll in the richer minimum value plan.

May 25, 2021

FAQ: What circumstances are considered “involuntary termination” for purposes of eligibility for COBRA premium assistance under ARPA?

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An employer must use a facts and circumstances test in order to determine whether termination is involuntary for purposes of COBRA premium assistance eligibility under the American Rescue Plan Act of 2021(ARPA).

The ARPA provides premium assistance for qualified beneficiaries who elect continuation coverage through COBRA, including state continuation programs. To be an assistance eligible individual (AEI), a qualified beneficiary must have experienced a reduction of hours or an involuntary (i.e., employer-initiated) termination of their employment (other than by reason of such employee's gross misconduct) and must also not be eligible for other group health coverage or Medicare. This subsidy covers the entire cost of COBRA premiums and applies to COBRA premiums paid for coverage periods between April 1, 2021, and September 30, 2021 (or when the qualified beneficiary becomes eligible for other group medical or Medicare coverage, whichever date comes first).

On May 18, 2021, the IRS issued guidance related to COBRA premium assistance under the ARPA. This guidance defined involuntary termination as an employer’s unilateral decision to terminate employment when the employee is willing and able to continue performing services. As an example, IRS Notice 2021-31 explains that termination is involuntary, even if it is designated as voluntary, when the facts and circumstances indicate that the individual was willing and able to continue working and but for the voluntary termination, the employer would have terminated the individual (and the individual was aware that they would be terminated).

Since the ARPA was signed into law, how to determine if a termination was in fact involuntary remained unclear in certain circumstances. That said, the notice clarified that:

  • Voluntary termination due to general concerns about workplace safety, a health condition of the employee or a family member, or other similar issues generally will not be involuntary termination. This is because the actual reason for the termination is unrelated to the action or inaction of the employer.
  • Absence from work due to disability or illness is not an involuntary termination unless the employer takes action to terminate employment. However, this could be a reduction in hours that may give rise to premium assistance if the individual loses coverage as a result of the leave.
  • Involuntary termination includes when an individual voluntarily terminates employment due to being offered a severance agreement or imminent termination.
  • Generally, retirement is a voluntary termination except for when the facts and circumstances indicate that, absent retirement, the employer would have terminated the individual’s employment and the individual was aware that they would be terminated and was willing and able to continue working.
  • Employees who voluntarily terminated employment because they do not have childcare would not be AEIs. However, if such employees remain employed, take leave for that reason, and lose coverage this would be considered a reduction in hours that may make them AEIs.
  • Involuntary termination includes a situation where an employee voluntarily terminates employment because of the employer’s material change to the employment relationship such as a reduction in hours or change in geographic location of worksite.
  • An employer’s decision not to renew an employee’s contract is an involuntary termination only if the employee is willing and able to continue the employment relationship. However, if all parties always understood that the contract was for specified services over a set term and would not be extended, the completion of the contract without it being renewed is not an involuntary termination.

Not all terminations will fall neatly into the scenarios provided above. As mentioned, whether a termination is considered voluntary will ultimately depend on whether facts and circumstances show that the termination was the employer’s unilateral decision to terminate employment when the employee is willing and able to continue performing services. Clients may need to seek counsel to make such a determination.

May 11, 2021

FAQ: Do individuals covered only under state healthcare continuation qualify for the ARPA premium assistance or a special election period?

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The American Rescue Plan Act (ARPA) provides a 100% premium subsidy for COBRA premiums, including state continuation premiums, under certain circumstances. However, absent further guidance, individuals covered only by state healthcare continuation programs do not appear to have a special election period.

Under the ARPA, individuals are eligible for premium assistance if they were terminated from employment (except when terminated due to gross misconduct) or experienced a reduction in hours (either voluntary or involuntary). Voluntary terminations (e.g., resignations) do not qualify an individual for premium assistance.

The ARPA provides a special election period for qualified beneficiaries who are eligible for premium assistance, and who are currently in their maximum continuation coverage period but either failed to initially elect continuation coverage or dropped continuation coverage. However, recent DOL guidance explains that the ARPA does not change any requirements or time periods for election of state continuation.

We believe that this means that there is not a special enrollment opportunity where state continuation applies, so it is not necessary to look back to determine who would qualify for state health continuation right now but have not elected it. Since ARPA does not give state continuation individuals a special enrollment opportunity, employers just need to run a report on who was enrolled in state continuation on April 1, 2021, to determine the group that gets the ARPA subsidy for state continuation. You can find the DOL guidance here.

The DOL provides a model Alternative Notice for all qualified beneficiaries subject to state health continuation, not just covered employees. It is clear that this notice is intended for those who experience a qualifying event sometime between April 1 and September 30. We believe that this form would also be used for persons who are covered by state health continuation before April 1 and continue to be covered during the subsidy period. However, it does not appear to give persons who initially declined state health continuation coverage or who dropped it before the end of the coverage period an opportunity to elect that coverage (as discussed above).

The client may wish to consult with counsel or with the insurance carrier before sending anything to a person who initially declined state health continuation coverage or who dropped it before the end of the coverage period.

April 27, 2021

FAQ: I heard “new” mental health parity requirements regarding non-quantitative treatment limitations (NQTLs) went into effect this year. What are NQTLs? How does a plan comply with the requirements?

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The Consolidated Appropriations Act of 2021 (CAA) amended the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) by imposing new obligations on group health plans. These additional requirements went into effect on February 10, 2021.

Under the MHPAEA, financial requirements (e.g., deductibles and copayments) and treatment limitations imposed on mental health or substance use disorder (MH/SUD) benefits cannot be more restrictive than those applied to medical/surgical benefits. Nor can separate treatment limitations be imposed only on MH/SUD benefits.

The MHPAEA applies not only to quantitative treatment limitations (e.g., number of visits or days of coverage), but also to non-quantitative treatment limitations (NQTLs) that affect the scope and duration of treatment. NQTLS include, but are not limited to:

  • Medical management standards that limit or exclude benefits based on medical necessity
  • Experimental treatment exclusions
  • Prior authorization or ongoing authorization requirements
  • Step therapy protocols (e.g., requiring lower cost drugs to be prescribed before more expensive options)
  • Methods for determining usual, customary and reasonable charges for out-of-network (OON) services
  • Standards for providing access to OON providers
  • Standards for provider admission to participate in a network, including reimbursement rates
  • Restrictions based on geographic location, facility type or provider specialty

Since the MHPAEA’s enactment, plan sponsors have been required to review the plan’s written terms and operations to ensure that the processes and standards applied to NQTLs for MH/SUD benefits are comparable to those applied to medical/surgical benefits. The following are examples of NQTLS that would appear to be problematic:

  • MH/SUD pre-authorization requirements are stricter than those for medical/surgical benefits
  • Medical necessity criteria apply differently to MH/SUD services as compared to medical/surgical services
  • Concurrent review (i.e., review of the necessity of care while the patient is receiving treatment) or retrospective review (i.e., after treatment has been provided) occurs regularly for MH/SUD services but not for medical/surgical services
  • OON reimbursement rates for MH/SUD services are based upon lower percentages of usual, customary and reasonable charges than the percentages used to determine medical/surgical OON reimbursement rates

Under the CAA, plans must conduct and document their NQTL comparative analysis and be prepared to provide it to federal or state regulators upon request. Additionally, the written analysis must be made available to participants upon request. Amongst other items, the analysis must describe each NQTL, the plan benefits to which the NQTL applies, and the factors (e.g., high variability in cost of care, lack of clinical efficacy of a treatment) and sources (e.g., internal claims analysis, medical expert review) upon which the NQTL is based.

For example, a plan that imposes a concurrent review requirement on certain treatments might explain that the NQTL was applied because of a lack of medical literature to support the treatment’s effectiveness. In such case, the plan documents and records must also show that the requirement was applied consistently to both MH/SUD services and medical/surgical services.

Accordingly, plan sponsors should consult with their carriers and/or third-party administrators to ensure that the required NQTL comparative analysis has been completed and is available in written form.

To learn more about the MHPAEA requirements, please review our recent Compliance Corner article Federal Health Updates ( and register for our upcoming Get Wise Wednesday webinar on May 19, 2021.

April 13, 2021

FAQ: How do the ARPA COBRA subsidies interact with the extension of certain timeframes relief?

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While both types of relief could apply to an employee who has experienced a reduction in hours or involuntary termination, the application of the provisions differ.

The COBRA subsidies provided through the American Rescue Plan Act of 2021 (ARPA) allow certain individuals to elect COBRA coverage and have that COBRA coverage 100% subsidized by the federal government from April 1, 2021, to September 30, 2021. (We first discussed this provision in the March 16, 2021, edition of Compliance Corner.) The extension of certain timeframes for employee benefit plans, participants and beneficiaries required plans to disregard the period from March 1, 2020, until 60 days after the end of the National Emergency (known as the “Outbreak Period”) for certain deadlines, including the deadlines applicable to COBRA notices and payment. (We first discussed this provision in the May 12, 2020, edition of Compliance Corner.)

Employees who were due an offer of COBRA under the extensions of certain timeframes continue to have the opportunity to elect COBRA based on the date of their termination or reduction in hours. Specifically, the most recent guidance on this subject (which was discussed in the March 2, 2021, edition of Compliance Corner) indicated that the relief under these extensions will continue until the earlier of a) one year from the date an individual or plan is first eligible for relief or b) 60 days after the announced end of the national emergency (the end of the outbreak period). Since the national emergency has yet to end, some individuals will be entitled to this relief at the same time that they are entitled to elect COBRA under the ARPA.

There are a few distinctions to be made, though. First, the extensions of certain timeframes applies to all COBRA-qualified beneficiaries, while the ARPA COBRA subsidies only apply to those who were involuntarily terminated or experienced a reduction in hours. So while individuals whose COBRA was triggered by divorce, death or aging off of the plan continue to have an extended time period by which they can elect COBRA, they are not eligible for the COBRA election and subsidies provided by the ARPA.

Second, the election of COBRA under the two provisions takes effect differently. Under the ARPA, individuals who were involuntarily terminated or had their hours reduced going back as far as October 2019 may now elect COBRA (even if they waived it, or elected and dropped it before). As long as they are not eligible for Medicare or other group health plan coverage, the relief provided through ARPA will allow for them to elect that COBRA prospectively, and receive a subsidy from April 1, 2021, through September 30, 2021, as long as there are still months left in their 18-month COBRA maximum duration period.

On the other hand, individuals who are eligible for relief under the extension of certain timeframes could potentially elect COBRA, but would need to elect and pay for the coverage retroactively back to the date of their COBRA-triggering event. In other words, the relief provided under that guidance allows employers to require that the coverage be instated retroactively. Individuals who are eligible for this relief also can likely elect COBRA through the end of the outbreak period even if they are eligible for Medicare or other group health coverage.

Third, the DOL’s most recent guidance on the ARPA COBRA subsidies makes it clear that the extensions of timeframes guidance does not affect the COBRA notice requirements under the ARPA. As discussed in an article in this edition of Compliance Corner, employers only have until May 31, 2021, to notify assistance-eligible individuals (AEIs) of their right to elect COBRA and receive subsidies under the ARPA. That time is not extended by the extensions of timeframes. Likewise, AEIs only have 60 days to elect COBRA under the ARPA; if they do not do so, they waive their opportunity to elect COBRA and receive subsidies.

So while it is possible for both pieces of guidance to apply to certain individuals, their effect and application will be different. Consider the following example of an employee who was terminated in December 2020:

Amy was involuntarily terminated in December 2020 and would have the right to elect COBRA, effective beginning January 2021. She does not elect COBRA.

Under the extension of certain timeframes, Amy would have until the earlier of the end of the outbreak period or one year from the date she was first granted relief (January 2022) to elect COBRA. If she chose to do so, she would have to pay for COBRA going back to January 2021.

Under the ARPA, Amy should receive a notice from her previous employer by May 31, 2021, notifying her of the right to elect COBRA and receive a subsidy from April 1, 2021, through September 30, 2021. As long as Amy is not eligible for Medicare or other group health plan coverage, she could elect COBRA prospectively and receive 100% subsidized COBRA for the entirety of the subsidy period (since her COBRA maximum duration period would not be over until June 30, 2022).

March 30, 2021

FAQ: What are the penalties if an employer failed to timely file or distribute Forms 1094/95 B&C? Is there an obligation to self-report the violation or is there an IRS-approved self-correction process?

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If an employer missed the deadline by which they should’ve reported under Sections 6055 or 6056, they should follow the normal procedures for filing forms as outlined in the IRS Instructions for Forms 1094-B, 1095-B, 1094-C and 1095-C. Those instructions require employers to file Forms 1094/95-B&C with the IRS electronically via the IRS’s AIR filing system (if filing 250 or more forms) or by paper/mail to the IRS address in the Instructions (if filing fewer than 250 forms). In addition, employers must distribute a copy of Forms 1095-B or -C to their employees (as applicable) (See our reminder regarding IRC 6055 and 6056 Reporting Deadlines in this edition of Compliance Corner for more information on reporting requirements.) The employer would then just have to wait and see if the IRS will assess penalties for the late filings, as there is no requirement to self-report the violation.

As an example: employers should have already filed their 2020 forms with the IRS (by March 1, 2021, if filing by paper, and by March 31, 2021, if filing electronically), and should have distributed a copy of 1095-C to FT employees by March 2, 2021. Note that while there was relief that allowed an employer not to distribute Forms 1095-B to employees if they placed a notice on their website, there’s an argument that employers would not be able to avail themselves of that relief if they actually failed to file or even draft Forms 1095-B on a timely basis. If an employer missed those deadlines, the employer may be at risk for a penalty up to $280 per form for failure to distribute to FT employees, and an additional $280 per form for failure to timely file with the IRS (capped at $3,392,000 for 2021 filings). That said, since there is no obligation to self-report the untimely filing, the employer should not submit payment with filing. Rather, the employer would just file the forms (and distribute a copy of Forms 1095-B&C to employees, if applicable), and then the IRS has discretion in assessing penalties and will notify the employer if they are going to do so. The result would be the same for any missed filings from prior years.

Penalties may be waived if the failure was due to reasonable cause and not willful neglect. Note that special rules apply that increase the per-statement and total penalties if there is intentional disregard of the requirement to file the returns and furnish the required statements. Thus, if the employer has knowledge of their responsibility and delinquency, the employer should correct as soon as possible.

Although there is not an official self-correction program (like the Delinquent Filer Voluntary Correction Program for Forms 5500), there are two potential ways that a penalty could be reduced if the error is corrected within a certain period following the due dates. The first way is the “thirty-day rule:” if a failure is corrected within 30 days after the required filing date (or the deadline for furnishing individual statements), the penalty is reduced to $50 per return or statement, and the calendar-year cap is reduced to $565,000 ($197,500 for smaller entities) for filings made in 2021. The second way is the “August 1st rule:” if a failure is corrected after the 30-day rule described above but on or before August 1, the penalty is reduced to $110 per return or statement, and the calendar-year cap is reduced to $1,696,000 ($565,000 for smaller entities) for filings made in 2021. These rules may help for this year's filings (due in 2021) but would not apply to last year’s or any previous years’ filings, since they would be too late to take advantage of those exceptions.

Ultimately, employers who have failed to timely file and distribute these forms should likely consult with legal counsel. Counsel will be best suited to assist with filing delinquent forms and, potentially, negotiating with the IRS on any assessed penalties. The IRS Instructions are helpful in outlining the process and penalty information.

March 16, 2021

FAQ: An employee heard that the eligibility for premium tax credits in the health insurance exchange has been expanded. Does that impact an applicable large employer's (ALE's) obligation to offer minimum value coverage meeting the affordability threshold?

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While the eligibility criteria for premium tax credits (PTCs) was changed by the American Rescue Plan Act (ARPA), this does not change large employers' obligations under the employer mandate.

Prior to the ARPA, individuals were eligible for a PTC to purchase individual coverage through the exchange if these two conditions applied:

  • They had household income between 100% and 400% of federal poverty level (FPL).
  • They were not eligible for minimum value coverage from an employer where the self-only coverage cost 9.5% (adjusted annually) or less of household income.

Since an employer does not typically know an employee's household income, an ALE's responsibility under the ACA's employer mandate is to offer minimum value coverage to full-time employees and their children. The employee's required contribution for the employer's lowest cost option self-only coverage cannot be more than 9.5% (adjusted annually, and 9.83% in 2021) of the employee's earnings, as determined under one of the three affordability safe harbor options (FPL, rate of pay, Form W-2).

The ARPA made two changes to the PTC eligibility conditions for calendar year 2021. First, the 400% of federal poverty level maximum household income limit has been removed. In other words, U.S. taxpayers who have household incomes greater than 400% of FPL will now be eligible for a PTC. Second, individuals receiving unemployment compensation for any week in 2021 may receive a PTC even if they have income below 100% of FPL.

Importantly, if an individual is eligible for qualified coverage from an employer (meeting both the minimum value and affordability standards) they are not eligible for a PTC, regardless of income. Further, ALEs are still required to offer qualified coverage to full-time employees or be at risk of a penalty under the employer mandate. If a full-time employee who is eligible for qualified coverage from an employer purchases coverage in the exchange, they would not receive a PTC, would be required to pay the full premium in the exchange, and could not trigger a penalty for the ALE.

March 2, 2021

FAQ: If a participant is reimbursed more than $5,000 in a calendar year for dependent care FSA (DCAP) expenses due to an extended grace period or carryover provision, is the amount above $5,000 subject to taxation?

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In short, no. The American Rescue Plan Act of 2021 (ARPA), passed by Congress on March 10, 2021, temporarily increases the allowable exclusion for DCAPs.  

Generally, a participant’s DCAP reimbursement amount in a calendar year is limited to $5,000 if the employee is married and filing a joint return or if the employee is a single parent (or $2,500 if the employee is married filing separately). Further, any account balances available at the end of the plan year are forfeited (unless the DCAP permits a grace period). 

The Consolidated Appropriations Act of 2021 (CAA), passed by Congress in December 2020, provides employers with relief options related to administering health FSAs and DCAPs. One such option provided by the CAA is that employers are permitted, if they choose, to allow up to the full year-end DCAP account balance to carry over into the subsequent plan year (a feature otherwise limited to health FSAs and capped at $550 as indexed). The CAA also permits an extended grace period up to 12-months (otherwise limited to 2.5 months) after the end of the plan year. Both the carryover and extended grace period provisions are applicable to plan years ending in 2020 and 2021. 

Then the IRS released Notice 2021-15 in February 2021, clarifying much of the guidance provided in the CAA and confirming that unused DCAP amounts carried over from prior years or made available during an extended period for incurring claims are not considered when determining the annual limit applicable for the following year. This means that a participant who takes advantage of an extended carryover or grace period can still contribute up to the annual limit in the subsequent plan year. However, neither the CAA nor Notice 2021-15 amend the annual DCAP limit permitted to be excluded from income.  

The ARPA addresses this issue by providing a temporary increase for this exclusion to $10,500 (or $5,250 if the employee is married filing separately) for taxable years beginning after December 31. 2020, and before January 1, 2022. This new increase in the DCAP limit should provide relief for employees whose employers choose to permit the temporary extended carryover and grace period DCAP provisions provided by the CAA. Accordingly, the amounts in excess of $5,000 that are reimbursed through a DCAP during a taxable year will not be treated as taxable income for participants (for the taxable year beginning after December 31, 2020, and before January 1, 2022). 

February 17, 2021

FAQ: Can employers provide employees an incentive, such as a gift card or other cash payment, to receive the COVID-19 vaccine?

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Many employers are considering doing this, but they will need to be mindful of the compliance obligations that would come with such a decision.

The biggest concern with an employer offering an incentive to employees who obtain the vaccine is that doing so is likely considered offering a group health plan. This would make the reward subject to many benefits-related laws. Specifically, when an employer offers an incentive to employees who receive medical care (in the form of a vaccine in this case), they are creating a wellness program that will need to comply with ERISA, COBRA, HIPAA, the ACA, etc.

If the incentive is provided only to employees on the major medical plan, then the employer is already meeting most of those compliance obligations through that plan and could simply tack on the vaccination reward as a part of the pre-existing plan. However, if it is also offered to employees who are not enrolled on the major medical plan, then the employer is creating a stand-alone wellness program and compliance becomes much more difficult (and virtually impossible for the program to meet the ACA’s requirements prohibiting annual and lifetime limits).

It is possible that the IRS and DOL will choose not to enforce the rules surrounding COVID-19 vaccination wellness programs in the interest of public health; however, the agencies have made no public announcement to that effect. If an employer wishes to offer an incentive to employees who aren’t on the medical plan they should consult with their own legal counsel about their options.

You can find more information on this and related topics in a recent seminar hosted by NFP.

February 2, 2021

FAQ: If the individual mandate penalty is zero, do I still need to provide the Form 1095-C to employees? If so, can these forms be provided electronically?

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Yes; the Form 1095-C must still be distributed to employees.

ALEs with an average of 50 or more full-time employees (including full-time equivalent employees) during the preceding calendar year must report to the IRS how they complied with the employer mandate. Specifically, under Code Section 6056, ALEs must complete a Form 1095-C for each full-time employee and report whether that full-time employee was offered coverage meeting the minimum value and affordability requirements. This reporting obligation applies regardless of whether the plan is insured or self-funded.

Additionally, as required by Code Section 6055, an ALE must report to the IRS those who were covered by the plan and for which months. A self-insured ALE would include this information in Part III of the Form 1095-C. The carrier would report this information for an insured plan.

The 2020 1095-C forms must be filed with the IRS by March 1 (if filing by paper) or March 31 (if filing electronically). These fillings should be submitted to the IRS with the transmittal Form 1094-C. As in past years, the deadline for distributing the forms to individuals is extended from January 31 to March 2, 2021.

Congress reduced the federal mandate penalty to zero, so individuals will not pay a federal tax penalty for failing to have coverage. However, the Form 1095-C is used to determine if an ALE is complying with the employer mandate and to determine if an individual is eligible for a premium tax credit for coverage purchased on the exchange. So the form still needs to be filed AND distributed to employees.

Furthermore, if the employer has employees residing in DC, CA, NJ, RI or MA, these regions have individual mandates that would rely upon the information reported in the Form 1095-C. Although the federal individual mandate penalty was reduced to zero, employees residing in these states could face state penalties for failing to maintain coverage. An employer with employees residing in these states may also be subject to additional state filing requirements.

The Form 1095-Cs must be mailed or hand-delivered, unless the recipient affirmatively consents to receive the statement in an electronic format. If mailed, the statement must be sent to the employee’s last known permanent address, or if no permanent address is known, to the employee’s temporary address.

For electronic delivery, the recipient’s affirmative consent must relate specifically to receiving the Form 1095-C electronically. An individual may consent on paper or electronically, such as by email. If consent is on paper, the individual must confirm the consent electronically. This affirmative consent requirement is designed to ensure that statements are furnished electronically only to individuals who can access them. Once an individual provides such affirmative consent to receive the Form 1095-C electronically, the form may be furnished either by email or by informing the individual how to access the statement on the employer’s website.

An ALE’s failure to file the Form 1095-C with the IRS, or to distribute it to employees, could result in significant penalties. The penalty is $280 per failure. For example, if an employer failed to file the form with the IRS and to distribute it to one employee, the penalty could be $560. Accordingly, if the employer fails to file or distribute the Form 1095-C for numerous employees, the potential liability could be substantial.

January 20, 2021

FAQ: What are the benefits compliance implications of lifestyle spending accounts?

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Lifestyle spending accounts (LSAs) are reimbursement accounts in which employers deposit a set amount of money for employees to spend on certain benefits that are determined by the employer. These accounts generally allow for the reimbursement of various wellness activities such as fitness classes, gym memberships, fitness competition entries, nutritional coaching, food supplements, work-out equipment, or other items or activities that will promote health amongst their employees. Some employers even use LSAs to include other non-wellness benefits such as pet or child care benefits, financial services, travel or entertainment.

Keep in mind, though, that the nature of the LSA will determine the compliance aspects of such a program. The first compliance concern to be aware of is that LSA benefits will likely be taxable to the employee. As a reminder, any benefit provided to employees would be included in their taxable income unless the tax code provides an exclusion. Notable exclusions are in place for benefits provided through a Section 125 plan, transportation plan or education plan. However, LSAs generally don’t include benefits that would be excluded from gross income under any of those exceptions (in fact, employers sponsoring LSAs likely have other plans in place that provide pre-tax benefits under those exclusions). So it’s most likely that employees would be taxed on the benefits provided through an LSA.

Another big question we get about LSAs is whether these arrangements are subject to ERISA. LSAs are generally not subject to ERISA for the same reason that they are taxable; the fact that they do not offer medical care or any of ERISA’s enumerated benefits would not subject them to ERISA as a health and welfare benefit. Specifically, if the employer wants to offer the benefit without it being subject to ERISA, then the employer would need to make sure that they do not allow reimbursement for medical treatment that would make the wellness plan an ERISA-covered plan. For example, offering mental health/psychiatry services or reimbursement of medication would likely be considered medical care and make the plan one that would be subject to ERISA. This is important because many employers do not want to have to meet all the ERISA requirements (Form 5500 filing, SPD, COBRA, etc.) for these types of plans. So in designing the activities that can be reimbursed through the LSA, the employer would want to work with counsel to ensure that none of them would lend the LSA to becoming subject to ERISA.

One final compliance consideration is how the LSA would impact employees’ HSA eligibility. When it comes to offering these accounts and an HSA, it would just be important to make sure that the plan does not offer first-dollar reimbursement for medical care. (Notice the theme here in ensuring that medical care is not offered through the LSA.) The reason for that is that employees who have an HDHP and want to be eligible to contribute to an HSA cannot have impermissible coverage (which is generally any coverage for medical care that pays before the deductible is met). So employers would need to make sure that the employees could not use the LSA to pay for their medical care if they want to preserve their employees’ HSA-eligibility.

Outside of the concepts mentioned above, there would not seemingly be any other compliance issues with providing an LSA to employees. But to be sure that the benefit is designed, implemented and communicated in an appropriate manner, employers should work with an LSA vendor or legal counsel in establishing the LSA.

January 5, 2021

FAQ: What are some group health plan compliance issues that employers should consider at the beginning of 2021?

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There are some compliance items that apply in January and February each year regardless of the group health plan year start date. First, by January 31, employers must report the value of group health plan coverage on employees’ Forms W-2. (There is an exception to this reporting for employers that filed fewer than 250 Forms W-2 in the previous calendar year.) While most employers rely on payroll providers (as they prepare W-2s on behalf of many employers), it’s important to work closely with the provider in ensuring proper reporting.

Second, employers will have to prepare for employer mandate reporting (IRS Forms 1094/95-C and/or 1094/95-B). Due to IRS extensions, there are three different dates to consider for reporting, all in March. By March 1, 2021, employers must file 2020 Forms 1094/95-C with the IRS (if filing by paper). By March 2, 2021, employers must distribute 2020 Form 1095-C (or a similar statement) to employees. By March 31, 2021, employers must file 2020 Forms 1094/95-C with the IRS (if filing electronically, which is required if filing 250 or more forms). In connection with those three dates, during January and early February employers should work closely with payroll providers and filing vendors in gathering information relating to the reporting, including offers of coverage, enrollment, waivers and required employee contribution amounts.

Third, employers will have to consider pandemic-related extensions to FFCRA leave tax credits and to COBRA elections and premium payments. On FFCRA tax credit extensions, end-of-2020 legislation allows (but does not require) employers to provide FFCRA-related leave and receive the associated tax credits through March 31, 2021. Employers will have to decide whether to extend FFCRA leave availability to employees, considering the continued availability of the tax credits. On COBRA election and premium payment extensions, as the end of the so-called “outbreak period” approaches (by statute, it will end on February 28, 2021), employers will need to work closely with COBRA vendors on any additional communications to affected employees (or former employees). The extension rules place the burden of employee notification on both the employer and the vendor (the employer, as plan sponsor, has the fiduciary obligation to ensure notification, though). Thus, employers should review whether the extensions were communicated properly to affected employees or former employees (at the time of the COBRA event), and whether additional communications are necessary.

Lastly, MEWA sponsors must file Form M-1 with the DOL by March 1. MEWA sponsors will need to work with their administrator and potentially with outside counsel in preparing and filing Form M-1.

For employers with calendar year plans (i.e., those with plan years beginning on January 1), there are additional items to consider in January. First, employers should review nondiscrimination tests (for self-insured plans, cafeteria plans, and both health and dependent care FSAs) to assess whether the plan will somehow favor the more highly compensated employees. While adjustments can be made at any point before the end of the plan year to bring the plan into compliance with the tests, knowing early whether adjustments are necessary will help with difficult conversations with those highly compensated employees (whose elections may need to be adjusted).

Second, and similarly, employers should double check their election and enrollment systems to ensure employees’ elections were properly administered. Catching errors earlier in the year helps avoid more difficult administrative problems (and employee conversations) later in the year.

Finally, employers should prepare their Medicare Part D disclosure to CMS form, which is due within 60 days of the plan year start date (March 1, 2021, for calendar year plans). The CMS disclosure is meant to notify CMS whether the employer’s prescription drug coverage is on par with Medicare Part D. Filing is straightforward and can be completed online.

December 22, 2020

FAQ: We are an ALE and preparing our Forms 1095-C for the 2020 reporting year. Are there any special reporting codes or considerations for the months in which some employees were furloughed?

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There are no codes specifically for furloughed employees. The answer depends upon whether the employer continued coverage during the furloughed period, whether the employee was enrolled in that coverage, the measurement method used by the employer, and the applicable affordability safe harbor, if any.

Furloughed employees who were still covered by the plan during a period of zero work hours would be reported as normal with the respective offer of coverage on Line 14 (for example 1E) and 2C (employee enrolled) on Line 16. Any employee who is enrolled in the employer’s coverage cannot trigger a penalty for the employer, regardless of the cost of coverage or affordability.

If an employer uses the monthly measurement method and the employee has a change of status from full-time to unpaid leave (a period of zero hours), the employee is no longer considered full-time at the end of the month in which the change occurs. A furloughed employee, under this method, who was still eligible for active coverage during the period of zero hours, but was not enrolled (due to a previous waiver), would not be reported as a full-time employee for the furloughed months. The employer would still report the offer of coverage on Line 14 and the employee’s required contribution on Line 15. Line 16 would indicate that the employee was not a full-time employee during the furloughed period (2B).

If an employer uses the look-back measurement method, an employee who has earned full-time status during an initial or standard measurement period is considered full-time during the entire stability period regardless of the number of hours worked (assuming there was not a termination of employment). A furloughed employee, under this method, who was still eligible for active coverage during the period of zero hours, but was not enrolled (due to a previous waiver), would be reported as a full-time employee for the furloughed months occurring during the stability period. The employer would report the applicable offer of coverage on Line 14 with the employee’s required contribution on Line 15. Line 16 would be the employer’s affordability safe harbor, if one applies. If none of the safe harbors apply, Line 16 would be left blank and would indicate potential risk under Penalty B for the employer.

As a reminder on the affordability safe harbors, if the employer is using:

  • Rate of Pay, the code would be 2H on Line 16. The rate is affordable if it is not greater than 9.78% of the employee's monthly salary or 9.78% of the employee's hourly wage multiplied by 130 hours, regardless of how many hours are actually worked.
  • Federal Poverty Level, the code is 2G. The employee's required contribution would have to be $101.79 or less per month. This is the only safe harbor that is not based on the employee’s specific earnings.
  • Form W-2 safe harbor, the code is 2F. The employee’s cost of coverage is affordable if it is less than 9.78% of the employee's 2020 Form W-2 Box 1 earnings divided by 12. This will be the most difficult safe harbor to satisfy for furloughed employees. If the employee had a number of months with zero compensation, the cost of coverage very likely will not be affordable.

If an employee was terminated from the plan and offered COBRA, the coding is different based on whether the loss was triggered by termination of employment or reduction of hours. For termination of employment, the employee would be treated as any other terminated employee. COBRA coverage is not considered an offer of coverage for this purpose following a termination of employment. Line 14 would be 1H (no offer of coverage); Line 15 would be blank; and Line 16 would be 2A (not employed). If the employee was offered COBRA due to a reduction of hours, COBRA coverage would have to be reported as an offer of coverage. Please see IRS FAQ #23 for guidance on reporting this scenario.

Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C »

December 8, 2020

FAQ: Will leave granted under the FFCRA end when the law expires on December 31, 2020?

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Currently, the FFCRA is set to expire on December 31, 2020, and has not yet been extended. An individual who is currently on FFCRA paid leave as of December 31, 2020, and who has not exhausted said leave, will not be able to continue their leave into 2021. In other words, December 31 appears to be a hard stop.

As background, the FFCRA provides for temporary paid leave provisions – including emergency paid sick leave (EPSL) and expanded FMLA leave (EFMLA) – for specific circumstances related to COVID-19. To review, to qualify for EPSL, an employee must be unable to work or telework because the employee:

  • Is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • Has been advised by a healthcare provider to self-quarantine related to COVID-19;
  • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  • Is caring for an individual subject to an order described in item one or self-quarantine as described in item two;
  • Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
  • Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

In order to qualify for EFMLA, an employee must have been employed for 30 calendar days immediately prior to the day the employee’s leave would begin and they must be unable to work or telework due to a need to care for their son or daughter under 18 years of age whose school or place of care has closed, or whose childcare provider is unavailable, for reasons related to COVID-19, among other requirements.

These FFCRA provisions apply to private employers with fewer than 500 employees and public employers of any size, and provide up to 80 hours of EPSL and 10 out of 12 weeks of paid EFMLA for qualified employees. Additionally, employers who provide such leave are eligible for a federal tax credit. Note that the tax credit expires at the end of the year too.

With the FFCRA expiration quickly approaching, the following example illustrates how FFCRA paid leave can be impacted:

Tracy qualifies for both EPSL and EFMLA under the FFCRA because she is unable to work (or telework) due to a need to care for her children whose school is closed for reasons related to COVID-19. She qualifies for leave beginning December 7, 2020. The 80 hours of EPSL will expire on December 18, 2020. Although 10 additional weeks are permitted for EFMLA, Tracy’s FFCRA paid leave will end on December 31, 2020 (using less than two weeks of the benefit) because the FFCRA is set to expire at that time.

Importantly, many states have enacted their own COVID-19-related leave laws, which may provide for leaves into 2021, but they would not carry the federal tax credit. As a result, any related leave provided may be at employer cost.

Employers administering paid leave under the FFCRA should be mindful of the approaching expiration date and communicate with employees, especially if the expiration impacts the length of their leave. It remains to be seen whether Congress will extend the FFCRA beyond the end of the year; if they do, we will report that in Compliance Corner.

November 10, 2020

FAQ: How does COBRA coverage affect Medicare entitlement?

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COBRA coverage can have a big impact on a person’s entitlement to Medicare coverage. If a Medicare-enrollee is unaware of how COBRA affects Medicare entitlement, they may find themselves paying higher premiums for as long as they are covered by Medicare and could experience gaps in coverage when COBRA coverage expires.

Remember that a person is “entitled to” Medicare Parts A and B when they become eligible (generally, when the person turns 65) and actually enroll in the coverage. An eligible person becomes enrolled automatically if they sign up for Social Security benefits; otherwise, there is a window of time within which they must enroll in Medicare Parts A and B to avoid a penalty. If they enroll in Medicare within a seven-month window that begins three months before the month they turn 65, covers their birthday month, and ends three months following their birthday month, then they will not have to pay higher premiums for enrolling later. If they do not enroll during this window, they will have to wait until a subsequent Medicare general enrollment period, which runs from January 1 through March 31 of every year.

However, there is a special enrollment period for people who didn’t enroll when first eligible because they were covered by a group health plan based upon their current employment status. This special enrollment period ends eight months after the earlier of the date someone loses group health plan coverage or the date the current employment ends. Importantly, COBRA coverage is not considered a group health plan based upon current employment. So a Medicare-eligible person that has COBRA coverage and delays Medicare would not experience a special enrollment period when the COBRA ends and would be subject to premium increases if they fail to enroll when first entitled to Medicare.

So if the person does not enroll in Medicare Parts A and B in a timely manner because they chose COBRA coverage, then not only are they subject to higher premiums for enrolling late, but they would also have to wait until Medicare general enrollment rolls around to enroll.

As you can see, the Medicare rules can be difficult to follow. As such, employers should consult with Medicare-knowledgeable advisors when employees have questions about how their coverage decisions affect Medicare enrollment.

October 27, 2020

FAQ: If an employer sponsors a cafeteria plan, do employees need to make affirmative elections each year or are default, or “rolling,” elections permitted?

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Under the Code Section 125 cafeteria plan rules – which apply to benefits that are paid on a pre-tax basis – eligible employees should be provided the opportunity to change their elections no later than 12 months after their last election. Additionally, ALEs subject to the ACA’s employer mandate provisions should ensure that they provide an adequate opportunity to opt into or out of medical coverage annually; otherwise, the requirement to offer coverage at least once a year (or to offer a chance to decline coverage that fails to meet minimum value or affordability mandates) will not be satisfied.

However, the plan is not required to obtain affirmative elections from eligible employees. Of course, some employers prefer the affirmative method because it provides a clear written record of the employee’s choice and consent to payroll deductions.

But a plan is permitted to use a negative or “default” election approach, under which employees who do not want health coverage must affirmatively elect not to participate in the cafeteria plan. In addition, the employer could continue the default approach on an ongoing basis through the use of rolling or “evergreen” elections for re-enrollment.

With default elections, it is important that at the time of hire and again before the beginning of each subsequent plan year, the employer provides a detailed notice to employees. Specifically, the notice must include all of the following:

  • An explanation of the automatic enrollment process and the employee's right to decline coverage and have no salary reduction
  • The salary reduction amounts for employee-only coverage and family coverage
  • Procedures for exercising the right to decline coverage
  • Information on the time by which an election must be made
  • The period for which an election will be effective
  • For a current employee, a description of the employee's existing coverage

The plan documents, election forms and enrollment communications should be drafted to clearly and consistently incorporate the default process. The employer will also want to allow employees adequate time to determine whether they wish to affirmatively opt out of the coverage.

As an alternative to the default approach, an employer may prefer that an employee make an initial affirmative election, which would thereafter roll over for future years unless the employee made an affirmative election to change it. If such rolling or “evergreen” elections are used, the employer must distribute open enrollment materials to all participants each year, preferably including a copy of their current elections. The disclosures should include any changes to plan design and employee contribution rates, as well as other information. The use of rolling elections should also be disclosed in the plan documents and in the initial affirmative election form signed by the participant. There may also be state wage withholding laws to consider.

However, the rolling election feature is typically not used for certain benefit offerings, such as HSAs and FSAs. Instead, employers offer active enrollment, so employees can choose how much they want to fund these accounts for the year based upon the annual IRS maximum contribution levels and any changes in their personal lives and budgets since the prior year. Additionally, requiring HSA active enrollment each year reminds the employee to reassess their eligibility. (Perhaps in the upcoming year, an employee will be covered by a spouse’s FSA or other medical plan that would make the employee ineligible to contribute to the HSA.) Furthermore, regardless of the open enrollment approach, HSA accountholders must still be given the opportunity to change their contribution deferral elections at least monthly.

Accordingly, it is permissible for a cafeteria plan to be designed to allow for initial default and/or ongoing rolling elections, so long as the participants are provided with the necessary disclosures and the opportunity to change elections at least once during a 12-month period. The employer would need to keep the above considerations in mind and determine the benefits for which such an approach may be appropriate.

October 13, 2020

FAQ: Our insurance carrier has agreed to extend our coverage period for an additional two months. What are the compliance implications of a 14-month plan year?

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Although insurance carriers are often willing to extend the insurance contract beyond 12 months, employers must consider what that will mean for the plan’s compliance. Specifically, the employer will have to consider what will need to be done to avoid violating the Section 125/Cafeteria plan rules, ERISA and the ACA.

Section 125/Cafeteria Plan
If employees are able to contribute towards their premiums on a pre-tax basis, then the plan is a Section 125/cafeteria plan. The Section 125 rules require employees to have the option to prospectively elect coverage for the “coverage period” (also called the “plan year”). The related rules state that a “plan year” must be 12 consecutive months, although there is an exception for a shorter plan year (if it's justified by a business purpose).

The plan year can begin on any day of any calendar month and must end on the preceding day in the immediately following year. So, if the employer has a cafeteria plan, the employer must allow employees to change their elections at the end of the plan year (i.e., prospectively elect or not elect coverage for the following plan year). This would mean that the employees would have to be given a chance to change their elections no later than 12 months after their last election.

Similarly, under ERISA, a plan year can be no longer than 12 months. The plan year must be identified in the SPD and the Form 5500 filing is based on a 12-month plan year (unless there is a shorter plan year).

The Form 5500 filing instructions make this clear when they mention that:

All required forms, schedules, statements, and attachments must be filed by the last day of the 7th calendar month after the end of the plan or GIA year (not to exceed 12 months in length)…

Thus, the Form 5500 filing would need to be completed for a 12 month period and could not be done for a 14-month period. Instead, the employer would likely have a 12-month ERISA plan year that would be followed by a two-month short plan year (or vice versa depending on the particular situation).

Employers with more than 50 employees are likely applicable large employers (ALEs) subject to the ACA’s employer mandate. Generally, an employer is an “applicable large employer” for a calendar year if it employed an average of at least 50 full-time employees on business days during the preceding calendar year. To comply with the employer mandate, a large employer must offer full-time employees minimum value, affordable coverage.

An employer makes an offer of coverage to an employee if it provides the employee an effective opportunity to enroll in the health coverage (or to decline that coverage) at least once each plan year. Treasury Regulation 54.4980H-4(b)(1) states:

An applicable large employer member will not be treated as having made an offer of coverage to a full-time employee for a plan year if the employee does not have an effective opportunity to elect to enroll in the coverage at least once with respect to the plan year.

As mentioned with the laws above, a plan year can be no more than 12 months. So, if a previously waived employee, who has not experienced a qualified event, is not given an annual opportunity to enroll in coverage — the employer will be considered to have failed to make an offer of coverage to the employee under the employer mandate and the employer would be at risk for a penalty.

The employer mandate requires an offer of coverage to be made at least annually, ERISA requires a plan year of no more than 12 months, and IRC Section 125 requires employees to have the option to make a prospective election for each coverage period (12 months). So even if the carrier is willing to extend the renewal date/contract “year,” the employer will likely need to host an additional open enrollment opportunity for the short plan year.

September 29, 2020

FAQ: For many plans, open enrollment is just around the corner. May employers build the SBC - required to be distributed at open and initial enrollment - into their online open enrollment process?

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Generally speaking, yes. Under a DOL safe harbor, SBCs may be provided electronically to participants and beneficiaries in connection with their online enrollment or renewal of coverage under the plan. In addition, an SBC may also be provided electronically to participants and beneficiaries who request an SBC online. In either case, the individual must have the option to receive a paper copy of the SBC upon request.

That said, it's not entirely clear what it means to be "in connection with" an online enrollment. One thing is for sure, though, and that is that the rules would only apply for those employees who are actually enrolling in benefits online. In other words, it would not be available for those who choose to enroll via other means (such as by phone or by paper, if those are options for enrollment). The rules do say that if the SBC is provided to an employee via this safe harbor, it will be considered as having been provided to related beneficiaries (i.e., other dependents that are enrolled) — so that’s helpful for employers.

Based on that, employers can have confidence that they satisfy the safe harbor by providing SBCs electronically both in connection with annual open enrollment as well as at other times (like mid-year special enrollments, etc.), so long as all enrollments must be completed online, the SBC is built into that process (i.e., provided in connection with the online enrollment), and there is a description of the right to receive the SBC in paper format, free of charge, upon request.

If employees are not required to complete enrollment online (i.e., there are phone, paper or other options), then the employer should distribute the SBC with open enrollment materials. That distribution can be by accomplished by paper (via postal mail, which is always an acceptable delivery method) or by email or other electronic means. If distributed electronically, the employer must ensure that they comply with the DOL’s electronic disclosure safe harbor. In other words, the employee must have electronic access as an integral part of their job (meaning they have a work email, computer or other device access and are expected to access email or the computer regularly throughout the work day or week).

If electronic access is not integral to their job, then the employee must provide authorization to receive plan-related documents electronically; otherwise, the employer should send the SBC as a paper copy via mail. For those eligible but not enrolled, the rules do allow the employer to post the SBC on the employer’s intranet if the individuals are notified in paper form (such as a postcard) or via email that the documents are available on the intranet (list the internet address and indicate that the SBC is available in paper form upon request).

Employers should also consider COBRA beneficiaries enrolled in the plan, who are also entitled to open enrollment materials and SBCs. Since employers may not have a COBRA beneficiary’s email address, mailing paper copies of open enrollment materials and SBCs may be the best approach. If online enrollment is required, though, the SBC could be built into the online enrollment process (per the above safe harbor). Employers considering that route should ensure, though, that the COBRA beneficiary is notified of their open enrollment rights, which means they’d either have to send a paper version or get permission from them to send via email (since it’s unlikely the COBRA beneficiary would have electronic access as a part of their job, as most COBRA beneficiaries are former employees and/or their dependents).

September 15, 2020

We have an employee who has been out on long-term disability for several months. When can we terminate them?

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There are two different issues to consider – employment termination and health plan coverage termination.

Let’s first discuss health plan coverage termination. An employee on FMLA is entitled to up to 12 weeks of continued eligibility and coverage at the same cost as an active employee. If the employee is on unpaid leave, the employee may choose to pre-pay the premiums when the leave is foreseeable, the employer may require payment during the leave through personal check, or the employer may permit repayment upon return. Similarly, an employee whose absence from work is covered by a state leave law may be entitled to continued coverage and eligibility.

Once FMLA and any state leave is exhausted, the employer should then review the terms of eligibility listed in the plan’s Summary Plan Description. Most state that an employee is eligible if they work a certain number of hours per week or on an approved leave. Most plans do not provide continued eligibility for an extended unpaid leave of absence. As an ERISA fiduciary, the employer needs to follow those terms. If they do not, it would be a breach of their fiduciary duty to follow the terms of the plan.

The employer also needs to consider the employer mandate. If the employer uses the look-back measurement method to determine eligibility, and an employee earned full-time status in the most recent measurement period, the employee would remain eligible throughout the entire stability period regardless of the number of hours worked.

Once the employee no longer meets the terms of eligibility (because they are not working the required number of hours per week and not in a covered leave period), COBRA would be offered for reduction of hours. If the employer continued the employee’s coverage under the active plan when they are not otherwise eligible, the carrier (including a stop-loss carrier for self-insured plans) could deny the claims, leaving the employer to self-insure all claims. Sometimes to soften the blow for an employee on a medical leave of absence, an employer may subsidize the COBRA premiums for a period of time.

On the second issue of employment termination, the employer should proceed with caution and consider consulting employment law counsel. But at a minimum, the employer should remember that the ADA could have some application in this regard. As background, the ADA requires employers with 15 or more employees to make reasonable accommodations for employees who are unable to perform their job duties because of a disability. A reasonable accommodation may include equipment modification/purchase, a temporary leave of absence, a modified schedule and other measures.

If an employee is in need of a leave extension, the employer will want to very carefully consider this request and its obligations under the ADA before denying the request or terminating employment. Please note that an extended leave of unpaid absence made as an accommodation to an employee is not an FMLA extension. The leave would not have the same protections as FMLA.

The EEOC prohibits an automatic termination policy. In other words, an employer couldn’t say an employee is provided six weeks of unpaid medical leave and if they don’t return at that time, they are automatically terminated. Each situation needs to be reviewed for reasonable accommodation. Before terminating an employee’s employment, the employer should engage in an interactive process to determine any reasonable accommodations and seek outside counsel.

September 1, 2020

What options do employers have when dealing with health FSA and/or dependent care FSA experience gains (i.e., forfeitures)?

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Under the “use-or-lose” rule, health FSA and DCAP contributions that are not used to reimburse expenses incurred during the plan year (or during a carryover or grace period, if applicable) will be “forfeited,” even if the reimbursements are less than the participant's contribution. In light of the COVID-19 public health emergency, employers may be dealing with such experience gains/participant forfeitures more so than usual given that participants may not have the opportunity to use designated health FSA and DCAP funds within the period of coverage.

Fortunately, the IRC and ERISA provide guidance to employers on what can be done with such experience gains/participant forfeitures.

  • For plans not subject to ERISA, they may be retained by the employer maintaining the cafeteria plan.
  • For plans subject to ERISA, the forfeitures may be used only in one or more of the following ways:
    • To reduce required salary reduction amounts for the immediately following plan year, on a reasonable and uniform basis
    • Returned to the employees on a reasonable and uniform basis
    • To defray expenses to administer the cafeteria plan

Practically speaking, many employers choose to use experience gains to defray reasonable administration expenses as this is generally the easiest approach to administer. Importantly, if an employer chooses to return funds to employees, experience gains may not be allocated among employees based (directly or indirectly) on their individual claims experience — it must be on a reasonable and uniform basis. For example, experience gains may be returned to all employees who elected coverage for the plan year on a per capita basis or weighted to reflect the employees' elected levels of coverage. Further, any cash returned to employees from a FSA's experience gains will be considered to be W-2 wages for purposes of FICA and federal income tax withholding.

While the IRS and DOL provide the above options, employers should be sure to follow any terms in their plan document that may dictate how forfeitures and experience gains must be applied.

August 18, 2020

FAQ: What are some FFCRA considerations now that the school year is about to begin?

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The Families First Coronavirus Response Act (FFCRA) requires employers to provide emergency paid sick leave (EPSL), as well as expanded FMLA (EFMLA), to employees if they must take care of their children whose school or daycare is unavailable due to COVID-19. Absent additional guidance from the DOL, this could likely result in a diminished ability to take FFCRA leave for the coming school year. Specifically, if schools and daycare centers are open and providing in-person instruction, then employees would seemingly not be eligible for this leave if, for example, they simply did not feel comfortable sending their kids to school or daycare due to risk of contracting the virus.

As a reminder, employers with fewer than 500 employees must provide FFCRA to their employees under certain circumstances. In order for their employees to qualify for EFMLA, they must have been employed for 30 calendar days immediately prior to the day their leave would begin and they must be unable to work OR telework due to a need to care for their children under 18 years of age whose school or place of care has closed, or whose childcare provider is unavailable, for reasons related to COVID-19, among other requirements. Note that an eligible employee is entitled to up to 12 weeks of EFMLA under the FFCRA to care for a child due to school/daycare closure related to COVID-19. If the employee did not exhaust the entire 12 weeks during the spring, they may be entitled to additional time in the coming fall semester.

In order for employees to take EPSL, one or more of six specific reasons enumerated in the FFCRA must apply, including that the employees cannot work because they are taking care of their child and the school or place of care of their child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions. According to DOL regulations, EPSL can be taken for this reason only if no other suitable person is available to care for the child during the period of such leave. If this reason applies, then employees are entitled to take up to 80 hours of EPSL, regardless of how long they have worked for their employers.

So employees may be entitled to FFCRA leave when their children’s schools are closed due to COVID-19. However, if they are open and available for in-person instruction, employees would seemingly be ineligible for paid leave under the FFCRA if they simply choose not to send their children. If the school or daycare is “partially” open – so that part of the curriculum is not in-person and is instead on-line only – employees (if otherwise eligible) would seem to qualify for the FFCRA leave if they cannot work (or telework) due to needing to care for their children during said partial closure.

Please note a few caveats. Several states, like New York, expand on the leave provided under the FFCRA, such as applying this or similar leave to employers with 500 or more employees. This could mean that there are additional state requirements to provide leave that could apply to children’s school circumstances whether instruction is provided in-person or not. Additionally, a recent federal court case struck down several DOL regulations that administer and enforce the FFCRA, including a requirement that employees can take FFCRA leave only if their employers have work for them do to that they cannot do because of the reasons for the leave. This case is discussed at more length in a separate article in this edition of Compliance Corner.

We are hoping for additional guidance from the DOL on this and related matters that are not directly addressed by current guidance. In the meantime, employers should consult with counsel if they have questions concerning the application of FFCRA leave to any particular case. We will pass along any new developments as we learn them.

August 4, 2020

FAQ: If an employee voluntarily travels (takes a vacation) and has to quarantine when they return due to a state quarantine order, are they eligible for FFCRA emergency paid sick leave?

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Yes, the employee would be eligible, provided they otherwise meet the eligibility requirements for emergency paid sick leave (EPSL) under the Families First Coronavirus Response Act (FFCRA). To review, to qualify for EPSL, an employee must be unable to work or telework because the employee:

  1. Is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in item one or self-quarantine as described in item two;
  5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Accordingly, an employee that takes a vacation and is required by a state order to quarantine upon return would be eligible for EPSL leave based on reason one. The fact that the employee’s trip was voluntary as opposed to work-related is not a disqualifying factor. In other words, the FFCRA does not distinguish between reasons for receiving a self-isolation or quarantine order; it simply requires that EPSL be offered if the person is ordered to quarantine and cannot work or telework as a result.

Question 87 of the DOL FFCRA questions and answers may be instructive in this regard. It references a situation in which an employee is returning from a cruise ship upon which other passengers tested positive. This exposure resulted in the employee’s quarantine by a government official upon return. The DOL response indicated that such an employee was entitled to paid sick leave if the employee could not work (or telework) because of the order. So, the EPSL entitlement was not affected by the fact that the trip was the employee’s choice.

It is also important to remember that the FFCRA was promulgated largely to protect the health of workers and their communities by mitigating the spread of the COVID-19 virus. For this purpose, it is not relevant whether an employee’s potential exposure to the virus results from voluntary or involuntary behavior.

Therefore, a covered employer should not deny leave to an otherwise eligible employee who is subject to a state quarantine order following voluntary travel and is unable to work or telework as a result. The DOL has already taken some enforcement action with respect to employers who have improperly denied FFCRA leave. So, an employer would want to be careful not to restrict such leave in a manner not required by the legislation.

Of course, this response addresses only the application of the federal FFCRA paid sick leave to the voluntary travel situation. State COVID-19 paid sick leave may not be available to those who are quarantined following voluntary travel; eligibility for any such state leave would depend upon the particular state’s leave law provisions.

DOL FFCRA Questions and Answers »

July 21, 2020

FAQ: Must plans cover COVID-19 antibody tests without cost sharing?

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Yes, plans must cover COVID-19 antibody tests without cost-sharing. As background, the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act require both insured and self-funded plans to cover COVID-19 testing without cost sharing. Specifically, the FFCRA provides that the required testing includes “in vitro diagnostic products for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19.”

Back in April, HHS, the DOL and the Treasury provided a set of FAQs on the obligations to cover COVID-19 testing under the FFCRA and CARES Act. (We discussed the FAQs in our April 14, 2020, edition of Compliance Corner.) One of the questions explicitly indicates that “in vitro diagnostic products” includes serological tests used to detect antibodies for the virus that causes COVID-19. Q/A 4 reads as follows:

Q4. Do “in vitro diagnostic tests” described in section 6001(a)(1) of the FFCRA, as amended by section 3201 of the CARES Act, include serological tests for COVID-19?
Yes. Serological tests for COVID-19 are used to detect antibodies against the SARS-CoV-2 virus, and are intended for use in the diagnosis of the disease or condition of having current or past infection with SARS-CoV-2, the virus which causes COVID-19. The Food and Drug Administration (FDA) currently believes such tests should not be used as the sole basis for diagnosis. FDA has advised the Departments that serological tests for COVID-19 meet the definition of an in vitro diagnostic product for the detection of SARS-CoV-2 or the diagnosis of COVID-19. Therefore, plans and issuers must provide coverage for a serological test for COVID-19 that otherwise meets the requirements of section 6001(a)(1) of the FFCRA, as amended by section 3201 of the CARES Act.

So although the guidance states that serological tests should not be the sole basis for COVID-19 diagnosis at this time, the FFCRA and CARES Act require plans and insurers to cover these tests (among other services) without cost-sharing when medically appropriate for the individual (as determined by the individual’s attending healthcare provider in accordance with accepted standards of current medical practice).

July 7, 2020

FAQ: Does HIPAA require employers to maintain information from COVID-19-related return-to-work questionnaires or employee temperature checks separately from other employee personnel information?

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HIPAA only applies to protected health information, which is personally identifiable health information that is obtained in connection with a group health plan. So, health information received due to employment practices, such as return-to-work questionnaires or temperature checks, is not likely HIPAA-protected. Nevertheless, employers should take important steps to safeguard the confidential medical information, whether stored in paper or electronic form.

In fact, these types of questionnaires or temperature check records are most likely protected under the ADA, which requires that such information be stored separately from an employee's personnel file, in order to limit access to it. However, an employer may store all medical information related to COVID-19 in existing medical files it maintains on employees (such as other sensitive medical information, plan-related information, etc.). This type of confidential medical information would include an employee's statement that they have COVID-19 or suspect they have COVID-19, the employer's notes or other documentation from questioning an employee about symptoms, and records of temperatures taken of the employee before entering the workplace. Note that this does not prohibit the employer from disclosing that information to a public health agency, nor does it prohibit a temp/staffing agency or contractor from notifying an employer if it learns an employee tests positive for COVID-19.

June 23, 2020

With all of the recent changes related to COVID-19, what are an employer’s choices related to a health FSA and dependent care FSA?

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The IRS has recently released several notices and regulations related to the administration of health FSA’s and dependent care FSA’s. This article will summarize that guidance.

One of the changes is mandatory in the sense that an employer does not have a choice. The change must be adopted. The period of time that a health FSA participant has to submit already incurred claims has been extended. This is generally called the run-out period. If the end of the run-out period occurred on or after March 1, 2020, then participants have additional time to submit qualified claims that were incurred during the plan year or grace period. The deadline is suspended until the end of the National Emergency is declared plus 60 days (called the Outbreak Period). This does not apply to a dependent care FSA.

Then there are the optional changes. First, the sponsor of a health FSA or dependent care FSA that had a grace period or plan year end in 2020 may choose to implement an extended claims period. Participants would have until December 31, 2020, to incur claims. This gives participants a chance to spend down any balance that was remaining in their account at the end of the plan year or grace period. It’s considered an extension of the grace period. An employer may choose to adopt this optional provision for a plan that has a grace period, rollover or neither. Importantly, an employer that also sponsors an HSA should understand that adopting the extended claims period for a health FSA would result in participants being ineligible for HSA contributions during that period. If adopted, the employer must revise their Section 125 written plan document by December 31, 2021.

Let’s go over an example:

Tommy’s Brake Pads sponsors a health FSA that runs from January to December with a two and a half month grace period. The most recent plan year ran from January 1, 2019, to December 31, 2019, with a grace period ending March 15, 2020. Typically, employees have until March 15 to incur claims and until March 31 to submit claims. Under the new guidance, the plan cannot enforce the March 31 claims deadline. Participants have until 60 days following the end of the Outbreak Period to submit claims. Additionally, Tommy’s Brake Pads may choose to allow employees with a remaining balance to incur claims through December 31, 2020.

Second, employers may choose to allow employees to make changes to their health FSA or dependent care FSA without a qualifying event. Typically, a participant may not change their Section 125 election mid-year without a qualifying event. Through December 31, 2020, employers may permit employees to add, increase or decrease their health FSA or dependent care FSA election amount. The employer may limit the changes to a certain timeframe. For example, the employer may choose to allow such changes only during the month of July. The employer may also limit the types of changes permitted. For example, the employer may allow only decreases to election amounts, not increases or adds. (Keep in mind, though, that changes could still be allowed under the regular qualifying event rules if an employer doesn’t choose to recognize an additional qualifying event opportunity.)

Whatever choices are adopted by the employer, they should be clearly communicated to employees.

For a summary of many of the mandatory and optional changes employers must or can make, see our quick reference chart.

June 9, 2020

How does the recent extension of certain timeframes for employee benefit plans impact HIPAA Special Enrollment requests?

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The guidance issued in the DOL and the Treasury’s joint final rule “Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak” provides that all group health plans subject to ERISA or the Code must disregard the period from March 1, 2020, until 60 days after the end of the National Emergency (known as the “Outbreak Period”) for certain deadlines, including the 30-day (or 60-day, if applicable) deadline to request a special enrollment under HIPAA. In other words, any plan participant who experiences a HIPAA special enrollment event that occurs during the Outbreak Period need not count the 30-day election period (60-day election period for Medicaid and CHIP related events) until the completion of the Outbreak Period, as illustrated in the following example:

Mary has a baby on March 31, 2020. For purposes of this example, let’s say the National Emergency is proclaimed to be over on May 31, 2020 (as such, the Outbreak Period ends July 30 — 60 days after the end of the National Emergency). In this scenario, Mary may request enrollment for the baby (and herself and spouse, if applicable) in the group health plan up until August 29, 2020, which is 30 days after the end of the Outbreak Period. It is important to note that coverage would be retroactive back to the event date.

This temporary extension is a good opportunity to review the nuances and requirements of HIPAA special enrollment rights (SERs). As background, HIPAA requires group health plans to provide SERs when there is a loss of eligibility for group health coverage (or health insurance coverage including Medicaid or CHIP); becoming eligible for state premium assistance subsidy; and the acquisition of a new spouse or dependent by marriage, birth, adoption or placement for adoption. Also required by HIPAA, an SER must allow for at least a 30-day special enrollment period for requests due to loss of group health plan coverage or with an acquisition of a new spouse or dependent; and at least a 60-day election period for enrollment requests due to loss of Medicaid/CHIP or becoming eligible for a state premium assistance subsidy.

Often overlooked, HIPAA SERs are only applicable to enrollment requests. For example, a request to drop coverage due to marriage is not a HIPAA SER, and a request to drop coverage due to becoming eligible for Medicaid or CHIP is not a HIPAA SER (but both are permitted IRS mid-year election change events). Further, election changes due to a HIPAA SER are applied prospectively with the exception of birth, adoption or placement for adoption, which can be applied retroactively to the date of when the birth, adoption or placement occurs (as mentioned in the example). In addition, coverage due to marriage must be effective no later than the first day of the first month beginning after the enrollment request is received.

Finally, employers that offer health coverage to domestic parties should be aware that loss of coverage SERs protect an employee’s right to add a domestic party due to the relevant loss of coverage event. However, SERs do not grant employees the right to enroll a newly qualified domestic partner outside of the employer’s open enrollment period, as attaining domestic partnership status is not comparable to marriage for purposes of triggering a HIPAA SER.

May 27, 2020

What are a plan’s options regarding COBRA continuation coverage during a qualified beneficiary’s election and initial premium grace period?

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The COBRA regulations normally provide a qualified beneficiary with a minimum 60 day period to elect COBRA and a minimum 45 day grace period following such election to make the first premium payment.

However, under recent COVID-19 IRS/DOL joint guidance, the election and grace periods have been significantly extended. Specifically, in determining an election or payment deadline, the timeframe from March 1, 2020, to 60 days following the declared end of the COVID-19 National Emergency (which is not yet known) must be disregarded (or tolled). The COBRA administrator should communicate these extended timeframes to qualified beneficiaries (by providing, for example, a supplement provided with the election notice).

The IRS COBRA rules provide that during the interim election and premium grace periods, the plan could do one of the following:

  1. Provide the COBRA continuation coverage and retroactively cancel it if the election or payment is not timely made
  2. Cancel the coverage and retroactively reinstate it once the election or payment is timely made

The COBRA election notice should specify the plan’s chosen policy during the grace period.

In either situation, the plan would need to explain the status of the COBRA-qualified beneficiary to any health care provider seeking to confirm coverage during the interim period. So, if the plan’s policy was to provide the coverage and retroactively cancel it, the plan would need to inform a provider to alert them of the possibility of a retroactive termination that could result in claims not being covered. Some plans may continue to pay claims during this interim, but then retroactively deny the claims and seek reimbursement if a timely COBRA election and payment is not made.

Similarly, if the plan cancels but retroactively reinstates coverage, then the plan must inform the provider that the qualified beneficiary currently does not have coverage but will retroactively if the election or payment is made. During the interim period, some plans take the approach of denying claims, but later reprocessing these if a timely election and payment is received. Other plans may hold or “pend” the claims. However, given the current extended deadlines, pending claims may be particularly challenging if in-network provider contracts require payments within a certain timeframe.

For a fully insured plan, it is imperative that the employer consult with the carrier regarding the approach, as well as any third-party COBRA administrators. If the plan policy is to provide coverage and retroactively cancel it, the carrier may require the employer to pay the COBRA premium for the interim period. A self-insured plan should confer with the stop loss carrier and any other service providers. Given the additional administrative challenges presented by the extended deadlines, coordinated efforts and consistent, clear communications to qualified beneficiaries are essential.

Finally, an employer should consult with counsel regarding any liability concerns with respect to COBRA administration, including those relating to the extended election and payment deadlines.

May 12, 2020

How should an employer handle health FSA eligibility when employees are furloughed?

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The answer depends upon whether the employees lost eligibility for the health FSA when they were furloughed, and how long the furlough lasts.

If they did lose eligibility, COBRA should be offered for any employee with an underspent balance. If they want coverage for the furlough period, they would have to elect and pay for COBRA. If they return to work in less than 30 days since the date they were furloughed, the employees would be reinstated to their previous elections, including the health FSA. If it’s more than 30 days, then they would be treated like new hires, with an opportunity to enroll in the health FSA if they choose.

If the employer does not wish for their employees to lose eligibility while on furlough, the limited guidance available (including the federal government’s own cafeteria plan) suggests three possible approaches:

  • First, the employer could suspend the FSA, with no employee contributions and no FSA coverage during the furlough. Upon return, there would be no employee salary contribution collection in arrears. The employee is not responsible for salary contributions during the furlough, but the employee cannot be reimbursed for FSA claims incurred during the furlough period. The employee’s total annual FSA benefit either remains the same (with the employer picking up the difference) or reduced by the missed furlough amount.
  • Second, the employer could suspend employee FSA contributions but continue FSA coverage through the furlough. Upon return to work, the employees would pay back the contributions they skipped while on furlough paying a new recalculated contribution amount over the remaining pay periods. Employees can incur health FSA expenses during the furlough, and the employee’s FSA benefit amount remains the same. The employer risks not collecting in arrears if the employee does not return to work.
  • Third, the employer could pay for the employees’ contributions and continue coverage during the furlough. However, this third option comes with some additional issues. The employer should be careful to make contributions that do not cause the FSA to lose its excepted benefit status (i.e., employer contributions should not exceed $500 or an amount that matches the employee’s contribution).

Although the idea is that employees would resume paying their portion of the contribution upon their return to work (and their contribution amount remains the same as before they went on furlough), the risk here is that employees do not return and the contributions that the employer has made on their behalf were wasted.

Finally, another thing to keep in mind is that, according to guidance from the IRS released on May 12, 2020, it is possible for employers to amend their plans and allow employees to make mid-year changes to their FSA elections. See our article in this edition of Compliance Corner about this new guidance from the IRS for additional information.

April 28, 2020

If employees lost eligibility for group health plan coverage as a result of a furlough, when must their health coverage be effective upon return to work?

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There are two ACA rules that come into play with this type of a potential return to work situation.

First, group health plans are prohibited from applying a waiting period that exceeds 90 calendar days. That is, an eligible employee must be able to elect coverage that becomes effective within 90 calendar days.

Under the waiting period rule, a former employee who is rehired may be treated as newly eligible for coverage upon rehire (and subject to the plan’s eligibility criteria and waiting period requirements). Additionally, if eligibility for coverage depends on being employed in an eligible job classification, a waiting period can be imposed when an employee moves from an ineligible job classification to an eligible job classification. So, if the furloughed status resulted in the employee being ineligible for coverage under the plan terms, resuming work may return the employee to an eligible job classification.

However, the imposition of the waiting period must be “reasonable under the circumstances” and “not a subterfuge to avoid compliance.” These terms are not defined, so the situation would need to be reviewed in terms of factors such as the expectation of the parties and the employer’s motives.

Additionally, employers with more than 50 full-time employee equivalents must consider the ACA shared responsibility provisions. With respect to new hires, there is generally a limited non-assessment period of three calendar months in which an ALE will not be liable for shared responsibility penalties for not offering coverage to full time employees.

However, if an employee stops working for the ALE and then returns (for example in a furlough situation), it is necessary to determine whether the employee is considered to be either a continuing employee or a terminated and rehired employee.

Generally, an employee will be considered to have terminated employment if the employee has a period of 13 consecutive weeks in which they are not credited with an hour of service. (For an educational organization, this period would be 26 consecutive weeks.) In such case, the employee would be considered a new employee upon return.

If deemed a new employee, the limited non-assessment period can be applied, and the group health plan coverage would need to be effective by the first of the month following three full calendar months of employment.

By contrast, if the employee was credited with service hours during the 13 week timeframe, then the returning employee would be classified as a continuing employee. (This could occur in the situation where a furlough lasts less than 13 weeks.) In this situation, the required effective date of the coverage offered would be the first day that the employee is credited with an hour of service or as soon as administratively practicable (generally interpreted to be the first day of the following month). So, for example, for a continuing employee that returns to work on May 15, the coverage would need to be reinstated no later than June 1.

Accordingly, the credited hours of service (if any) for each affected employee prior to the return date should be reviewed. Failure to offer coverage in the required timeframe could subject the employer to shared responsibility penalties if the employees sought marketplace coverage and received a tax credit.

Finally, let’s say an employee is determined to be terminated and rehired so that a limited non-assessment period can be applied with respect to the coverage offer. The coverage date would still need to be coordinated with the 90 calendar day waiting period requirement. So, the employee returning on May 15 would need to be offered coverage that would be effective by August 13 to meet the waiting period rule, even if the limited non assessment period rule would only require a September 1, 2020, effective date. So, the employer always needs to coordinate the two dates with any new hire or rehire.

April 14, 2020

During the COVID-19 pandemic, some employers would like to pay the entirety of the health plan premium or subsidize COBRA premiums for furloughed employees. What compliance considerations are there to that approach?

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If employers want to minimize the disruption of their furloughed employees’ health care, employers may choose to supplement the health plan premium in a greater manner or to subsidize COBRA during the furlough period. Ultimately, the employer must consider the plan terms, any qualifying event implications, and COBRA maximum duration periods.

First, the employer will need to consider the plan terms. If employees being furloughed will cause a loss of eligibility under the plan, then the employer should not merely pay a greater portion of the premium. Instead, they should likely terminate the employee’s coverage (since they’re no longer eligible) and offer COBRA. They could then choose to subsidize the COBRA.

If employees being furloughed will not cause a loss of eligibility under the plan, then COBRA would not be warranted since there would not be a COBRA-triggering event. In this case, the employer could choose to pay a greater portion (or all) of the premium for employees while they are on furlough. The employer would just want to clearly indicate to employees whether or not they intend for the fronted premiums to be paid back by employees upon any future return to work. Amended plan documents and communications might also be necessary to reflect the change in the employee’s cost.

One additional consideration for employers that pay a greater portion of the premium is whether this will create a qualifying event for others who waived the plan to choose to enroll now. This could be the case where the employer’s plan recognizes the qualifying event based on a significant cost change. If the employer did not want to allow for employees who waived coverage to enroll on the plan because the employer increased its contribution, then they might need to amend their Section 125 plan document to indicate that they do not allow employees who had previously waived coverage to enroll in the plan pursuant to this event. Employers should work with the entity that drafted their Section 125 plan document to communicate their position on any potential qualifying event.

If the employer offers COBRA and chooses to subsidize it, then they should make sure to clearly communicate the offer of COBRA. In other words, they will want to make sure employees know that they have received an offer of COBRA and not a subsidization of active coverage. In furtherance of this goal, they should provide the requisite COBRA notices. They also need to indicate how long the COBRA subsidy will last and that the subsidized COBRA goes towards their COBRA coverage maximum duration period. Further, any severance or separation agreements that are being written to include the COBRA subsidy should be reviewed by the employer’s HR professionals or legal counsel to ensure that the agreement is clear that the coverage that is being subsidized is COBRA coverage.

In addition, while employer COBRA subsidies are generally not taxable to the former employee, an employer COBRA subsidy of any non-tax dependent (including most domestic partner) coverage would be taxable. Employers should work with their CPA or tax counsel in determining any potential tax consequences.

As an additional note, many have wondered whether the additional payment of health care plan premiums or COBRA subsidies will cause an employee to become ineligible for unemployment benefits. This will depend on the state’s unemployment insurance provisions. However, keep in mind that the vast majority of states do not limit unemployment benefits (or even underemployment benefits) for individuals who have access to health care through COBRA or active coverage.

March 31, 2020

Is a furlough considered a qualifying event that would allow an employee to drop their group health plan elections (including medical plan and health and dependent care FSA elections)?

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Possibly. It would depend on the group health plan eligibility terms, and whether the employer allows midyear election changes per its section 125 plan document. Most employers allow midyear election changes as allowed under section 125.

On medical plan elections, if the furlough results in a loss of medical plan eligibility, then eligibility would automatically be lost and the employee should be offered COBRA (or state continuation). If eligibility is extended through the leave, though, and the employee intends to enroll in a state health insurance exchange, there are two potential qualifying events (reduction in hours and exchange enrollment) that allow the employee to drop coverage. Normally, the employee would need a special enrollment event to enroll in a state exchange plan, but some states are opening up their enrollment windows midyear for anyone in that state (even if they have not experienced a midyear event). So, if an employee intends to use one of those exchange enrollment windows, the employee could drop the employer’s medical plan.

Importantly, neither of those qualifying events requires actual enrollment — just intention. An employer can rely on the employee’s attestation of intention to enroll in an exchange plan. (Keep in mind, though, that many states are only allowing a special enrollment event for individuals without insurance; this could mean that employees with employer-sponsored coverage are not eligible for the special enrollment.)

On health FSAs, if the furlough results in loss of health FSA eligibility, then the employee can drop FSA coverage (and in some instances, health FSAs will have an automatic termination, so there's really no choice). So if the employer is furloughing or otherwise sending employees on a leave of absence, then the employee would likely lose eligibility for the FSA, and therefore could drop FSA coverage (or may lose it automatically). But if the employer chooses to continue eligibility through a furlough (including FSA eligibility), then there would be no qualifying event.

If the reason the employee is taking a leave is because the employee has COVID-19, then it's possible that the employee qualifies for FMLA. Also, the emergency FMLA expansion (part of the newly enacted Families First Coronavirus Response Act — FFCRA) might apply if the employee is unable to work or telework because they have to care for their son or daughter under 18 years of age whose school or day care has closed due to a public emergency. So if the leave is FMLA-protected (through either of those), then benefits (including health FSAs, but not including dependent care FSAs) should not be dropped by the employer; benefits should continue on the same terms as prior to the leave. However, if the employee wants to drop their coverage during unpaid FMLA leave, there is a qualifying event that would allow them to do so for all benefits.

With dependent care FSAs (DCAPs), when there is a change in the cost of a dependent care provider, the employee’s work location changes (so that a different daycare is more convenient), a participant changes dependent care providers or a daycare closes, then a plan may permit a midyear change in election. Such election change may include starting, stopping or modifying a DCAP election, depending on the employee’s situation. In the current COVID-19 environment, with day cares and other childcare options temporarily closing, a decrease in (or cancellation of) a DCAP election would likely be permitted. In addition, if and when employees can go back to work, and if and when the daycare reopens, participants should at that time be able to increase their DCAP elections accordingly.

Overall, employers should review their Section 125 written plan document to ensure that appropriate section 125 elections are allowed. Most plan documents allow employers to make changes as allowed by section 125, but it's worth reviewing to be sure.

March 17, 2020

What do employers need to take into account when contemplating furloughs or other leave options for employees affected by COVID-19?

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If the furloughed employee has the coronavirus, or a family member has it, then it is possible that it will be a FMLA leave. In that case, benefits would continue on the same terms as before the employee took the leave, for the duration of the FMLA leave (usually up to 12 weeks in a 12-month period).

UPDATE: Congress passed a temporary expansion of FMLA that provides qualified employees up to 12 weeks of protected leave taken for certain COVID-19 related events, some of which as paid leave. Previously, FMLA did not require that the leave under the statute be paid. Employees can take this leave if they must take care of a child because school or daycare is closed due to the outbreak and they cannot otherwise work or telework. The first ten days of this leave is unpaid leave, although the employee may use accrued vacation or sick leave during that time, in accordance with the employer’s leave policy. The employee may also qualify for emergency paid sick leave, provided for under the same legislation, which could be used during the first ten days of the expansion leave, as discussed below. The employee must be paid at 2/3 the employee’s rate (but capped at $200 per day and $10,000 in the aggregate) for the paid time off granted under this expansion. The expansion lasts until December 31, 2020.

Importantly, all employers with fewer than 500 employees must comply with the expanded leave entitlements (a change to the 50-employee threshold that currently applies under FMLA). That said, the law gives the DOL authority to exempt employers with fewer than 50 employees if the paid FMLA provisions would jeopardize the viability of the business. Also, while not directly addressed in the new law, it appears that the general FMLA rules for counting employees would apply; if separate business entities (separate EINs or business lines) have different management and separate operations, then the entity would count employees separately from the bigger controlled group of entities — employers should work with counsel to be sure. Additionally, any employee who has been employed for at least 30 calendar days would be eligible for the expanded leave (but there are exceptions for employers that are experiencing economic hardship and employ fewer than 25 employees — we assume the DOL will further clarify that via regulations). Finally, the job protection requirements of the FMLA would also apply to COVID-19-related leaves (meaning employers must reinstate employees after their FMLA period ends), although there are some exceptions for employers with fewer than 25 employees.

To help employers shoulder the financial burden, employers can claim a tax credit equal to 100% of qualified sick leave wages paid to employees. These credits, however, are limited to $200 to $511 per day, depending on the qualifying leave event. Employers can claim a full credit for employees earning up to $132,860 in income and a partial credit for higher earners.

In addition to the FMLA expansion, new legislation grants certain employees immediate access to up to 80 hours of emergency paid sick leave. Employers with fewer than 500 employees and employees of public employers must make this leave available to employees. Applicable employees can take this leave if they are:

  • Diagnosed with COVID-19, to self-isolate (or to obtain a diagnosis or care for symptoms of COVID-19)
  • Under quarantine to comply with an official order or recommendation because of COVID-19 exposure or symptoms
  • Providing care to a COVID-19-diagnosed individual or an individual seeking a diagnosis or care for symptoms of COVID-19
  • Caring for an individual affected by a school or other care facility closing

During sick leave relating to an employee’s own condition, employers are obligated to pay employees the higher of their regular rate of pay or the applicable minimum wage. That amount is capped at $511 per day and $5,110 in the aggregate. For sick leave taken to care for a family member, the rate of pay is reduced to two-thirds of the employee’s regular rate of pay. That amount is capped at $200 per day and $2,000 in the aggregate. It appears that this emergency paid sick leave could be used during the first ten days of the expanded FMLA leave, if the employee needs the leave to take care of children who are out of school or daycare due to COVID-19.

Note that this new legislation authorizes the federal Department of Labor has the authority to enact regulations that exempt employers with fewer than 50 employees from complying with the emergency aid sick leave as well as the FMLA expansion, under certain circumstances.

If the furloughed employee or the employee’s family member is not affected by the coronavirus, then the situation becomes more complicated. The answer varies upon the employer’s size, whether they are subject to the employer mandate, whether they use the monthly or look-back measurement methods, what their plan document says, what any SCA or DBA contracts say, what is outlined in their Section 125 Plan Document as a qualifying event, and how long the furlough lasts.

ERISA Plan Document and any Employment Contracts
First, the employer needs to look at the plan document and review the plan’s terms of eligibility. If the employer has experienced this issue before, then they may have previously put language in their plan documents about furloughs or leaves of absence and continued coverage. If there are SCA or DBA contracts in place, they might want to review those as well to see if there are any special provisions. This goes for all benefit offerings- medical, dental, vision, life, disability, etc.

If there are no special terms, then it just comes down to regular old eligibility- which for medical, dental, and vision probably says something like” employees are eligible if they normally work X hours per week or are determined to be full-time.” If it’s a small employer, an employee not working X hours per week would not be eligible under the terms of most plans, so coverage would be terminated with COBRA or state continuation offered. This would go for dental and vision for all sized employers as well- as soon as the employee no longer meets the terms of eligibility, coverage is terminated and COBRA offered.

Employer Mandate
If the employer is a large employer, then they need to consider the employer mandate rules as well for medical coverage. If they are using the monthly measurement method, then an employee who has a change of status (and no longer eligible for coverage) would be terminated at the end of the month with COBRA offered for reduction of hours.

If they are using the look-back measurement method and the employee was one who was previously determined to be full-time in a measurement period, than the employee would remain eligible through the end of the stability period regardless of the number of hours they work.

Payment of Contributions
Usually the employee pays for his or her premium contribution through a paycheck deduction. Employers of all sizes must consider how employees who are on leave without pay make premium contributions without a paycheck to deduct from. Generally, the rules for FMLA premium payment can serve as useful guidelines. For instance, the employer may require that employees pay during the furlough period by personal check. The payments may be due per pay period or per month. The employees should be provided with written notice of the payment method, due date and consequences for nonpayment (termination of coverage). Alternatively, the employer could permit the employee to pay upon return, but this is typically not preferred when the return date is not known.

Section 125 Cafeteria Plan Document and Reinstatement
All sized employers also need to consider the Section 125 cafeteria plan rules. Let’s say that an employee continues to be eligible for coverage under the terms of the plan and/or employer mandate rules, but wants to drop coverage because of no pay. Is this allowed? There is a qualifying event permitting employees to drop coverage based on an unpaid leave of absence if the Section 125 Cafeteria Plan Document provides that such employees lose eligibility under the cafeteria plan. If they return to work within 30 days after dropping coverage, they would be reinstated to the same coverage with no chance to change elections.

For a large employer subject to the employer mandate, if they return to work after 30 days but before 13 weeks, they would be reinstated to eligibility and would have the right to change elections. If they return beyond 13 weeks, then they could be required to meet a new waiting period or start a new measurement period.

Eligibility for group coverage also directly affects the question of when someone must be offered coverage through COBRA. To be COBRA eligible, the employee must experience a COBRA triggering event (which in the furlough situation, could be a reduction of hours) AND a loss of eligibility for group coverage. Although the employee would be experiencing a reduction in hours (albeit temporarily), if the employee here would continue to be eligible for group coverage, he or she would not lose eligibility for coverage. So COBRA would not need to be offered. In other instances, we have seen a longer furlough that caused a loss of eligibility, such as when the employee was not working the requisite hours of service to be eligible (a requirement sometimes imposed by the carrier). This gets back to the idea of clearly outlining eligibility terms in the plan document--perhaps the employer will want to consider a limit to continuing eligibility for a furloughed employee (or any employee on a leave of absence, for that matter). But that would be up to the employer to outline in the plan document.

There are many moving parts to designing a compliant furlough or leave plan, so employers should consult with outside counsel for guidance on one that best serves their needs.

March 3, 2020

What are an employer’s responsibilities regarding HIPAA training for a self-funded plan? Is HIPAA training required each year?

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HIPAA training should be tailored to the employer’s involvement with the group health plan – and, specifically, PHI – as well as the dynamics of the employer’s workforce.  

It is important to keep in mind that a self-funded plan is required to comply with all of the HIPAA privacy and security requirements. Typically, the employer as plan sponsor is the fiduciary responsible for the plan's compliance. As such, the employer may choose to be hands-on with respect to PHI and handling the plan administrative functions and therefore, have more regular and direct access to PHI. By contrast, the employer may delegate the plan administrative functions and tasks necessary to comply with HIPAA to TPAs or other service providers which would act on behalf of the plan, but the employer would remain ultimately responsible for compliance with the regulations.

However, even if a TPA or other service provider performs most of the administration functions for a self-funded plan, the employer will retain some functions requiring access to PHI. For example, many TPA arrangements require that the plan sponsor serve as the named fiduciary for appeals of denied claims. Deciding appeals almost always requires access to PHI.

Accordingly, the employer would need to be sure to protect the PHI in accordance with the privacy and security requirements. The necessary measures may include, but are not limited to creating a firewall to protect the PHI, ensuring staff is aware of and adhering to the limitations on the use of information, and providing covered individuals with notice of certain rights with respect to their own PHI. Additionally, if PHI is provided in electronic format, compliance with security requirements (e.g., encryption) must also be observed.

Employees may not necessarily be aware of the HIPAA privacy and security requirements absent training. The general rule is to train all members of the workforce, which would include new employees upon hire. A broad training regime demonstrates the employer’s commitment to HIPAA compliance and raising awareness throughout the organization. Most importantly, the training should focus upon employees that will be administering and involved with the health plan (i.e., those that will actually have access to PHI). Instruction on an annual basis (if not more frequently) is generally recommended. It is also advisable that the employer document each employee’s completion of the program (for example, by collecting a certification statement).

The current global viral outbreak highlights the importance of a well-trained workforce. Even under these circumstances, the HIPAA privacy rule still applies. Therefore, a group health plan must continue to apply administrative and technical safeguards to protect the confidentiality of PHI. Accordingly, any PHI disclosure must be the minimum amount necessary (e.g., to treat an employee or dependent, protect the public health) in accordance with applicable guidelines.

In addition to educating the staff and protecting the privacy of employees, an ongoing HIPAA training regime may be advantageous to the employer in the event of a security incident or breach. Should there be a complaint to a regulator, the employer can demonstrate that it took its compliance obligations seriously, which could possibly be considered a mitigating factor in terms of damage assessments.

With respect to the training format, the employer has flexibility to design a program appropriate for the employee population and logistics. Accordingly, the employer can use videos, webinars, live meetings, newsletters/bulletins, a review of compliance guidelines, etc. The approach selected should clearly explain the employer's formal policies and procedures on HIPAA security and privacy.

If the employer is interested in a suggestion for a vendor to assist with HIPAA training, Total HIPAA can provide a comprehensive training program with formal record keeping at a reasonable price. Contact your adviser for more information about Total HIPAA.

February 19, 2020

Do plan sponsors have to provide plan documents in non-English languages?

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Plan documents don’t automatically have to be provided in non-English languages. Instead, the SPD/SMM/SAR regulations and the SBC and appeals requirements under the ACA have different ways that they require employers to acknowledge employees who may speak another language and provide them with the opportunity to receive assistance.

There is no specific ERISA requirement to provide SPDs or SMMs or SARs in non-English languages. However, plans that cover certain amounts of participants who are literate only in the same non-English language must provide some assistance in that non-English language. Whether a plan must provide assistance in a non-English language depends on the size of the plan and the number of plan participants that are literate only in the same non-English language, as follows:

  • A large plan (one covering 100 or more participants) must provide language assistance if the lesser of (a) 10% of participants, or (b) 500 participants (or more) are literate only in the same language.
  • A small plan (one covering fewer than 100 participants) must provide language assistance if 25% or more of the participants are literate only in the same language. 

The SPD (or SMM or SAR) for a plan subject to this requirement must include a statement, in the applicable non-English language, offering language assistance and clearly explaining the procedures that individuals must follow to obtain that assistance. Practically, the employer should actually provide access to such assistance and it’s best if the language about the availability of non-English language assistance is clearly stated in the SPD or SMM (either at the beginning or on the cover).

SBC/Appeals Notices
The ACA requires that the SBC and appeals notices be presented in a “culturally and linguistically appropriate manner.” In general, those rules provide that in specified counties of the United States, plans and insurers must provide interpretive services and written translations upon request, in certain non-English languages. The applicable counties are those in which at least 10% of the population residing in the county is literate only in the same non-English language—this determination is based on U.S. Census data and includes four languages: Spanish, Chinese, Tagalog, and Navajo. The initial list of applicable counties was set forth in the amended interim final regulations relating to appeals notices; the HHS website provides a current list. (Access the most recent list from

To comply with the language requirement, SBCs and appeals notices sent to addresses in an applicable county must include a one-sentence statement clearly indicating how to access the language services provided by the plan (or insurer). This statement should be included on the page of the SBC with the “Your Rights to Continue Coverage” and “Your Grievance and Appeals Rights” sections. Written translations of the SBC or appeals notices must be provided upon request in the required non-English languages.

In order to assist with compliance with this language requirement, written translations of the SBC template and uniform glossary in the four applicable languages are available on the HHS website. An oral translation (in MP3 format) is available in Navajo.

Employers are not necessarily required to provide entire documents in non-English languages, unless a participant asks for them. The regulations do require that certain plan documents and notices include some information in different languages that notifies participants of their right to ask for translated information (as outlined above).

February 4, 2020

Now that some states have enacted individual mandates for their own state residents, is there any associated employer reporting?

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In connection with the ACA’s individual mandate penalty being zeroed out in 2019 (meaning US residents can forego individual health insurance coverage and will not have to pay a tax penalty), some states have stepped in and enacted their own state individual mandates. Under those mandates, residents of the state must have some level of MEC, or pay a state tax penalty. While these state individual mandates are not employer mandates (i.e., the state laws do not force employers to offer MEC or other coverage), the ACA’s employer mandate remains in effect. The states, though, may require employers to report whether their employees have MEC or some other level of coverage. The reporting generally relates to employees who reside in that state (rather than the state in which they work).

The two newest requirements for 2020 apply to employers with employees who reside in New Jersey and Washington, D.C., as outlined below.

New Jersey
Individual Mandate: Effective 1/1/19
Employer Reporting: Yes
Employer Size: All size employers
Form to File: Form 1095-C
Due Date: March 31, 2020
Applies to: NJ residents (those living in NJ) covered under the group health plan
File through: NJ Division of Taxation (same as where employers file W-2s with the state)
More/Final Info »

Individual Mandate: Effective 1/1/2019
Employer Reporting: Yes
Employer Size: 50 or more FT employees (same as the ACA’s employer mandate)
Form to File: Form 1095-C
Due Date: June 30, 2020
Due Date in Future Years: 30 Days following the IRS deadline
Applies to: D.C. residents (those living in D.C.) covered by a group health plan
File Through: D.C. Office of Tax and Revenue, website
More/Filing Info »

States with similar reporting obligations that will take effect in 2021 include California, Rhode Island, and Vermont (more information to come on those filing obligations). Also, while not directly connected to state individual mandates, Massachusetts (relating to the Health Insurance Responsibility Disclosure (HIRD) forms) and San Francisco (relating to the Health Contribution Security Ordinance (HCSO)) also have reporting requirements. Massachusetts requires employers to file a HIRD form (reporting plan-level information not employee-specific information) by the end of November each year (although the Massachusetts website appears to extend this to December 15), while San Francisco requires employers to file the HCSO contribution form by the end of April each year.

Additional information on MA and SF are available here:
MA »
SF: HCSO Reporting Web Site »
(2020 filing information usually posted it in March)

January 22, 2020

Our company will sell one of its divisions this year. What will happen to employees’ health FSA elections, which run on the calendar year and have already been elected for 2020?

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Employee benefit plan operations, responsibilities, and liabilities should be part of the negotiated transaction. There is general guidance available for these circumstance and options available to the buyer and seller, which should be outlined along with other benefit plan decisions in the sale agreement. We recommend working with outside counsel to determine what is best for your specific circumstances.

With that said, the rules vary based on whether the transaction is a stock or asset sale. General guidance is discussed below for both scenarios.

Asset Sale

In an asset purchase, the buyer usually purchases specific assets and certain agreed-upon liabilities of the seller. The employees of the seller are typically terminated from employment and rehired by the buyer. COBRA would be offered by the seller if the seller continues to maintain a group health plan, including the health FSA. This is true even if the employee is rehired by the buyer and eligible for the buyer's health insurance.

If a seller ceases to provide any group health plan and the buyer continues the business operations associated with the assets purchased without interruption or substantial change (aka successor employer), there is no obligation to offer COBRA to the employees who were immediately employed by the buyer after the sale because they are considered not to have experienced a COBRA triggering event.

However, IRS guidance provides two acceptable scenarios in which the health FSA coverage may continue for entities involved in an asset sale as an alternative to terminating the coverage and offering COBRA:

  • Coverage under seller’s FSA with salary reductions under buyer: The seller may maintain the health FSA and the buyer either has an FSA or will create one at a designated point in time (e.g., end of the plan year). The seller and buyer may agree to have the transferred employees continue to participate for an agreed-upon period. The seller and buyer may also agree on how original salary reductions will continue as if made under the buyer’s plan.
  • Coverage and salary reductions under buyer: The buyer agrees to cover the transferred employees under its health FSA for the rest of the plan year. After the asset sale, employee account balances are rolled over and all claims for reimbursement are submitted to the buyer’s FSA (even claims incurred prior to the sale but not yet paid). Then the transferred employees’ salary reductions continue for the remainder of the buyer’s plan year.

Note that under each scenario, no mid-year changes of election are permitted because eligibility is not lost as a result of the asset sale because the coverage continued. Consequently, existing FSA elections must remain for the remainder of the plan year unless there is some other qualifying event.

Stock Sale

In a stock sale, a current employee of the seller who continues to be employed following the sale would not be offered COBRA coverage because they have not experienced a qualifying event.

Specific to the health FSA, IRS guidance provides that the buyer in a stock scenario could take advantage of the second option discussed above, available in asset sales. Another option would be for the buyer to arrange with the seller to offer COBRA-like coverage to transferred employees in order to avoid the use-or-lose rule (since COBRA is not required to be offered in a stock sale where there has been no termination of employment or other statutory COBRA trigger). Those not electing the COBRA-like coverage would still be able to submit claims for expenses incurred before the transaction during a run-out period.

Again, any decisions related to the FSA, COBRA, or health plan would need to be clearly outlined in the purchase agreement with corresponding amendments made to the Section 125 plan document and ERISA plan documents. Thus, due to the complexities inherent with mergers and acquisitions, the employers would want to work with outside counsel to ensure compliance.

January 7, 2020

Can an employee remove their spouse from coverage during open enrollment in anticipation of a divorce?

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An employee may be allowed to drop their spouse from coverage during open enrollment; however, the employee should follow any court orders in place, and the employer should be mindful of the fact that there are COBRA implications when the employee does this in anticipation of divorce.

First, it’s important to note that divorcing spouses who provide health coverage to the soon-to-be ex-spouse are often ordered not to terminate that coverage until the divorce is finalized. Some state laws even require this continuation. Even in situations where an individual cancels their spouse’s coverage before they have filed for divorce, the court could seek to require the individual to either reinstate the coverage or pay for the spouse’s medical care. So the employee should discuss their desire to terminate the spouse’s coverage during open enrollment with their legal counsel or the court in which they are filing for divorce.

Second, when an employee’s spouse is covered by an employer’s health plan, the spouse is eligible for continued coverage through COBRA when a triggering event occurs, such as when the employee and the spouse divorce. As background, COBRA is required when qualified beneficiaries experience a loss of coverage due to a COBRA-triggering event. Those rules generally mean that qualified beneficiaries are only eligible for coverage if they had coverage on the day before the event. However, when a person who has coverage loses that coverage in anticipation of a triggering event, such as a divorce, the loss is disregarded in determining whether the event causes a loss of coverage. In other words, for purposes of determining whether the spouse qualifies for COBRA and when COBRA coverage starts, the spouse is treated as if they had coverage on the day before the triggering event even though they were dropped during open enrollment.

Upon receipt of notice of the divorce between the employee that dropped the coverage and their spouse, a benefit plan that is subject to COBRA must make COBRA coverage available to the divorced spouse as of the date of the divorce. This means the employer should send the COBRA election notice to the divorced spouse so that they can elect COBRA if they so choose.

So, the employee could presumably be free to drop the spouse during open enrollment as long as any court orders do not stipulate otherwise. It would be best for them to discuss their desire with legal counsel, though. Additionally, in anticipation of divorce there are COBRA issues to be mindful of. The client should consult with outside counsel regarding any additional issues that may arise in this situation, including possible disputes with the insurance carrier regarding the eligibility of the spouse for COBRA.

December 10, 2019

What benefit compliance considerations are there when large clients acquire smaller organizations? Is there a deadline by which a buyer must enroll acquired employees onto their plans?

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Clients that are engaging in mergers and acquisitions should generally consult with legal counsel about the implications of the transaction on the two business entities involved. Counsel would be best suited to analyze the plans of the two clients and analyze obligations given the purchase agreement and benefits-related laws. However, we can provide some general considerations.

The initial step in determining what obligations the buyer in a transaction might have is to understand the legal structure of the transaction. The type of transaction is important because it determines whether the seller's rights and obligations are transferred by law to the buyer (although the parties can contract otherwise). With an asset purchase, any employees of the seller who will soon be working for the buyer would generally be considered terminated and rehired by a new employer (the buyer). With a stock purchase, the same employees would just continue to be employed by the same legal entity, soon to be owned by the buyer.

When it comes to the benefits plans of the buyer and seller, there is no one set transition timeframe. The timeframes would depend not only on the type of transaction and acquisition closing date, but on the type of benefits offered, applicable legal mandates, and the contractual agreements between the parties. Several considerations are outlined below. The buyer should discuss these with their counsel and work out the details prior to the transaction closing date.

First, the buyer should be cautious about an arrangement in which the seller agrees to continue to provide benefits for a transitional period after the closing date to former employees who are now newly hired employees of the buyer. This may result in the inadvertent creation of a MEWA, with additional compliance obligations and possible liability under both state and federal laws. Although some of those obligations are curtailed by law for certain transactions, the buyer will need to be sure of the implications of such a transitional period.

Second, there may be ACA considerations. If the buyer’s company had 50 or more full time or equivalent employees last year, it is an applicable large employer (ALE). As an ALE, the buyer is subject to the requirement to offer affordable minimum value coverage to full time employees.

It is not clear what the employer mandate would require if the acquired company is a non-ALE or an ALE. The general view is that if a non-ALE is acquired (via stock purchase) by an ALE group during a calendar year, the acquired entity becomes an ALE member beginning with the month in which the acquisition occurs. So, if the transaction occurs mid-month and the acquired entity was not previously an ALE that offered affordable minimum value coverage to full time employees, this could subject the buyer to potential penalties. If the acquired company was also an ALE complying with the ACA mandates, there are still issues concerning the measurement and stability periods that would need to be reviewed and addressed (particularly if the lookback method was used). If the acquired company used different measurement methods, an option may be available to continue using such methods for a transition period following the transaction closing date.

Third, there may be cafeteria plan issues. If the employees currently make pre-tax premium and other benefit payments through the seller’s cafeteria plan, will they now be offered participation in an existing cafeteria plan of the buyer? With an asset purchase, upon the closing date, the employees of the acquired business will cease to participate in the seller’s cafeteria plan and their elections would normally terminate at that time. New elections should be obtained from these employees for the buyer’s plan. If applicable, there may also be an option to transfer FSA balances from the seller’s plan to the buyer’s plan.

With a stock purchase, the buyer assumes sponsorship of the cafeteria plan covering the employees of the acquired business, and the elections under the plan could continue. Alternatively, the buyer may want to terminate the acquired business’ cafeteria plan at closing and enroll the employees in the buyer’s plan. A short plan year (for the acquired plan) would be allowed in this instance, provided the plan was amended and Form 5500 timely filed (which would be under an accelerated schedule). Although there is no direct regulatory guidance, new benefit elections for the acquired employees should also be permissible. However, if the transaction occurs mid-year and the cafeteria plan benefits include health or dependent care benefits, the employees should be given as much advance notice as possible so they can use their existing balances.

An additional and related issue is non-discrimination testing. Upon acquiring the stock (or assets) of a business, the buyer must determine the potential impact of including the employees of the acquired business in its benefit plans. Note that with respect to retirement plan coverage testing, there is a transition period from the closing date to the last day of the following plan year in which plans can be tested separately. Although it would seem reasonable to apply such a rule to Section 125 cafeteria plan testing, there is no direct regulatory guidance to that effect. A self-insured plan would also be subject to the Code Section 105 testing. Prior to the closing date, it would be advisable for the employer to assess the highly compensated versus non-highly compensated populations of the acquired employees and the effect upon testing results. This will help to prevent test failures and taxation of benefits for highly compensated employees.

COBRA may also be a consideration. If the seller maintains a plan after the sale, the seller would provide COBRA coverage to any COBRA qualified beneficiaries. However, if the seller ceases to maintain any group health plan in connection with the sale, then a group health plan maintained by the buyer must provide the COBRA coverage if 1) the buyer maintains a group health plan; and 2) in the case of an asset sale, the buyer is a successor employer. As with other issues, the parties can contract to allocate the responsibilities in a different manner.

Once these benefit decisions are determined, the plan document/SPD should be amended and employee disclosures and communications updated to reflect any changes.

To summarize, there is no one set period to transition the acquired employees to the new plans. It first should be determined whether the acquisition is an asset or stock purchase. Then, each benefit and its related compliance concerns would need to be reviewed. A brief summary of some potential issues are outlined above. Given the complexities and potential liabilities associated with benefit plans, it would be wise for the client to consult with counsel and develop a plan to address these issues well in advance of the transaction closing date.

November 26, 2019

If an employee or their dependent relocates to another city, state, or country, is that a qualifying event for the employee to change their election mid-year?

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Assuming that the plan is subject to the Section 125 qualifying event rules (by virtue of employees being able to pay their premiums on a pre-tax basis), an employee or dependent simply moving would not allow the employee to make a mid-year change to their coverage. As background, Section 125 requires that employees be able to elect their coverage annually, and their elections cannot be changed mid-year without a qualifying event.

While there is a change in status qualifying event that includes a change in residence, that qualifying event is only permissible when that change in residence affects the participant’s or dependent’s eligibility for coverage. So unless the relocation makes the moving individual ineligible or newly eligible under the plan, the move would not be considered a change in status qualifying event.

On the other hand, there would likely be a qualifying event if the relocation resulted in the employee or dependent moving outside of a network that would provide service (for example if the plan were an HMO and the employee or dependent moved out of the HMO service area and therefore couldn't receive any coverage where they lived).

But if the employee or dependent is eligible under the plan before and after the move (which is often the case for PPO or HDHP plans with a national network), then change in residence is not a qualifying event. As such, the employer could not allow the employee to change their election mid-year absent some other qualifying event (like a marriage, birth, or divorce). Doing so would risk the disqualification of the entire plan (meaning that neither the employer nor employees could pay for their coverage on a pre-tax basis).

Now, there could be other qualifying events that would apply given the circumstances. For example, a cafeteria plan may permit a qualifying event for a loss of coverage under any group health coverage sponsored by a governmental or educational institution, including a foreign government group health plan. So if the relocating dependent has coverage through their government and will lose it by virtue of moving to the US, then that could make the move a qualifying event.

Keep in mind, though, that both the change in status and loss of coverage under a governmental health plan are permissible qualifying events, meaning that the plan document has to allow for them. Additionally, these events do not apply to health FSAs, so the employee could not change their health FSA election on account of either of those qualifying events.

November 12, 2019

We apply a premium contribution discount as a wellness program reward for employees who complete a biometric screening. How does that impact affordability under the employer mandate?

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As background, large employers (those with 50 or more full time employees, including equivalents) must offer affordable coverage to all full time employees (those working 30 hours or more per week). The affordability rules say that incentives under a wellness program that reduce the amount employees have to pay for the employer's coverage are not treated as reducing the employee's required contribution for purposes of affordability, unless the incentive is related to tobacco use.

So, in this situation, since the wellness activity is not related to tobacco usage, the wellness incentives do not reduce an employee's required contribution (even if the employee actually receives the incentive). That means the employer will have to use the employee’s required contribution prior to the wellness incentive’s application, which likely makes it more difficult to achieve affordability.

As an example, if an employee’s required contribution is normally $100 per month, and the employer gives a $25 discount for employees who complete a biometric screening, the employer would still use the $100 per month contribution amount when calculating affordability (instead of using the $75 discounted rate). If the incentive were tied to tobacco use, the employer could use the $75 per month contribution.

As an aside, wellness programs raise many other issues under several different laws, including HIPAA, ERISA, ADA, and GINA. Employers that choose to connect their rewards with their employer-sponsored group health plans (such as through a premium discount or surcharge, a contribution to an HRA/HSA/FSA, or something similar) must consider the impact of those other laws as well.

October 29, 2019

Can I offer my employees a cash payment if they waive coverage under the medical plan?

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Yes, an employer may provide a cashable waiver to employees who decline medical coverage. However, they have to be very careful with its design, particularly applicable large employers that are subject to the employer mandate.

Section 125 is the exclusive means by which an employer can provide employees with a choice between taxable cash and nontaxable benefits. Thus, any cashable waiver must be included in the written Section 125 Plan Document as a qualified benefit.

An employee can waive coverage under Section 125 for any reason — even if they have no other coverage. However, if the employer is subject to the employer mandate, then they should likely only allow employees to opt-out and take the cash if they certify that they have other MEC. This is called a conditional waiver. If any waived employee is provided with the cash-out regardless of whether they have other MEC, this is called an unconditional waiver and it can negatively impact a large employer’s affordability calculation.

Let’s look at an example. ABC company offers employees the opportunity to enroll in self-only coverage for $150 per month. If the employee waives coverage, they would receive $75 as a cash-out amount. The $75 is taxable income. Under a conditional waiver, the employee must certify that they have other MEC to receive the $75 per month. The cost of coverage for affordability and Section 6056 reporting purpose is $150 per month. Under an unconditional waiver, any employee waiving coverage receives $75 per month. The cost of coverage for affordability and reporting purposes in this case would be $225 ($150 plus $75), and the $225 is the amount the employer would have to use to determine affordability.

MEC includes Medicare, TRICARE, Medicaid, and other group coverage. It does not include individual coverage. It can sometimes be difficult to distinguish individual coverage from group coverage by simply looking at a health plan identification card. This is why it is best to simply have the employee self-certify whether they have other MEC.

Lastly, please note that this issue only applies to employers who implement a cashable waiver design on or after December 16, 2015. If the employer’s design was adopted before that date, they are not required to treat the opt-out payment as increasing the employee’s required contribution.

October 15, 2019

An employee became Medicare eligible in July, but continued to make pre-tax HSA deferrals and receive employer HSA contributions. How should this situation be addressed?

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First, please note that simply turning age 65 does not make an individual ineligible for HSA contributions. The person only becomes HSA ineligible if he becomes entitled to (that is to say, enrolled in) Medicare. Enrollment in Medicare is not automatic for someone who turns 65, unless they start receiving Social Security.

If the employee actually enrolled in Medicare in July upon attainment of age 65, his Medicare would be considered impermissible coverage that would make him HSA-ineligible. Medicare is disqualifying coverage because it allows for cost sharing for medical expenses (other than preventive care) before the HDHP deductible is satisfied. In this situation, the employee would only be eligible to contribute for the first six months of the year. For self-only coverage, the 2019 annual HSA contribution maximum ($3,500) and 55 and older catch-up amount ($1,000) would need to be prorated; the result would be a 2019 maximum contribution of ($4500 x 6/12) or $2,250. So, the employee’s maximum 2019 contribution would be $2,250, and any funds contributed above this amount would be an excess contribution.

With respect to the employer contribution, it is important to keep in mind that HSA contributions are generally non-forfeitable. This situation does not fit the very limited exceptions for an employer’s recoupment of excess contributions, which are if the employee was never HSA eligible or the employer contributed beyond the statutory maximum ($4,500 for 2019). Nor is this a case in which there was a clear process error (for example, the contribution was credited to the wrong employee).

So, the employer would not be able to recoup the employer contributions. IRS Notice 2008-59, Question 25, makes it clear that the excess contribution cannot be returned to the employer in this type of situation:

Example. Employee N was an eligible individual on January 1, 2008. On April 1, 2008, Employee N is no longer an eligible individual because Employee N’s spouse enrolled in a general purpose health FSA that covers all family members. Employee N first realizes that he is no longer eligible on July 17, 2008, at which time Employee N informs Employer O to cease HSA contributions.

Employer O’s contributions into Employee N’s HSA between April 1, 2008 and July 17, 2008 cannot be recouped by Employer O because Employee N has a nonforfeitable interest in his HSA. Employee N is responsible for determining if the contributions exceed the maximum annual contribution limit in § 223(b), and for withdrawing the excess contribution and the income attributable to the excess contribution and including both in gross income.

To correct the excess contributions, the employee would need to remove the excess from the account by completing the appropriate form provided by the HSA custodian. Provided that the correction is made prior to the employee’s 2019 tax filing deadline (April 15, 2020, or later, if he files for an extension), the employee would not be subject to a penalty tax. If the excess contribution is not included in Box 1 of Form W-2, the employee would report the excess amount as "other income" on his individual return.

The employee must also remove any earnings on the excess amount while in the HSA. The earnings typically are the interest earned. However, if the funds were invested (as in stocks or mutual funds), the earnings would be the appreciation in value. The employee will owe taxes on the earnings and will need to include this amount as "other income" on his income tax return in the year of withdrawal. Although the amount is normally small, the IRS has a special rule for calculating the earnings.

If the excess contribution is not removed prior to the employee’s tax filing deadline, then the employee would need to file an IRS Form 5329 to pay the 6% penalty tax, but would not need to remove the earnings. Of course, the employee should consult with his tax advisor regarding any tax questions related to the excess contribution and reporting. IRS Publication 969, Health Savings Accounts and Other Tax-Favored Health Plans, may also be helpful.

IRS Publication 969 »

October 1, 2019

What are the timing rules for employer and employee HSA contributions? What should be done if HSA contributions are submitted late?

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There are some general rules pertaining to timeliness of HSA account contributions. While employer contributions to an HSA don't have a particular “due date,” the employer should sufficiently follow the plan terms. So if an employer communicates to employees that employer contributions will be contributed at a specific interval (such as per pay period), the employer should contribute based on that timetable. As an outside compliance limit, the IRS generally allows employers to contribute to employees' HSAs through the tax filing deadline for the year in which the HSA contributions were due.

On the other hand, participant contributions withheld from employee paychecks, including employee-deferred HSA contributions, are subject to the DOL's plan asset regulations governing welfare and pension benefits. Specifically, participant contributions become plan assets "as of the earliest date on which such contributions can reasonably be segregated from the employer's general assets, but in no event later than 90 days after the payroll deduction is made." This generally means the outside limit for submitting contributions is 90 days, but this is not to be considered a safe harbor because contributions should nearly always be segregated in a matter of days rather than weeks.

This deadline applies to participant contributions coming into an employer's possession under the welfare benefit plan, including personal checks used to pay COBRA contributions, premiums during FMLA leave, retiree premiums, salary reductions under a cafeteria plan, and HSA contributions. As such, employers should contribute employee-deferred HSA contributions to their accounts as soon as the funds can be separated from the employer’s general account. In this way, the deadline for forwarding HSA contributions is similar to the deadline for forwarding employee 401(k) deferrals.

Keep in mind, though, that there is a safe harbor for small employers for this purpose. Employers with fewer than 100 participants can utilize a DOL "safe harbor" that gives them up to seven business days to deposit plan assets (including HSA contributions) to an employee's account.

When an employer has failed to forward participant contributions on a timely basis, there are procedures available to correct both the fiduciary breach and the prohibited transaction that has occurred. There is a DOL correction program available to employers that commit this failure. The Voluntary Fiduciary Correction Program (VFCP) allows employers to correct failures (such as failure to forward HSA contributions on a timely basis) by submitting an application for the program and filing a Form 5330, acknowledging the prohibited transaction. However, as with any compliance failure, an employer that fails to timely forward contributions should consult with legal counsel.

DOL information on the VFCP »

September 17, 2019

If an employer adds coverage mid-plan-year to allow employees to cover domestic partners, would that be a qualifying event and allow employees to change their elections?

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Yes, a change in eligibility mid-plan-year that makes domestic partners eligible as dependents under the plan constitutes a Section 125 qualifying event. As background, Section 125 applies to any benefits that can be paid for on a pre-tax basis and it allows for only election per year, unless the employee or covered dependent experiences a qualifying event.

The qualifying event that would apply to the change to cover domestic partners is “addition or significant improvement of a benefit package option.” That event allows employees to change their election if a plan adds a new benefit package or coverage option or if coverage is significantly improved during a period of coverage (the plan year). Unfortunately, the related rules contain no specific definition of “significantly improved”; employers are left to determine that on their own. The general barometer is whether a reasonable participant might think that the change is a big deal or not.

Adding an entire class of dependent eligibility would likely be considered a big deal for most participants (even if many participants aren't actually going to add a domestic partner). So, since most employees would consider that eligibility change as significant, an employer would be on solid ground in allowing an election change in that situation. However, employers would want to ensure that the election change is consistent with the change under the plan. The consistent change in this situation would be for the employee to add coverage for a newly eligible domestic partner.

Now, many of the Section 125 qualifying events (of which the addition/significant improvement of benefit package options is a part) are optional for employers. (We call these the permissible qualifying events.) Only HIPAA special enrollment rights are mandatory. So the Section 125 plan document should be reviewed to ensure it allows these types of election changes. Most employers allow all of the events allowed by Section 125 — they want to give employees flexibility to change elections in certain scenarios. But the permissible Section 125 qualifying events are not mandates: The employer does not have to allow them. So the employer would want to confirm that the Section 125 plan document allows the permissible Section 125 qualifying events; if so, employees could change their coverage mid-year to add coverage for a newly eligible domestic partner.

September 4, 2019

Not all of our employees have work computers. Is posting the SPD and other required notices on a shared training/time clock computer sufficient for distribution purposes?

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No, posting required notices on a shared computer or kiosk is not sufficient to meet the DOL’s Electronic Disclosure rules. The preamble to the final 2002 regulations specifically state that merely posting documents to a shared computer kiosk in a common area at a workplace is not an appropriate means by which to deliver documents required to be furnished to participants.

An SPD, Employer CHIP Notice, HIPAA Special Enrollment Rights notice, Medicare Part D Disclosure Notice and other required notices may be sent via email to participants who have electronic access as an integral part of their job. The plan administrator must take the necessary steps to ensure that the email system "results in actual receipt of transmitted information" (which would be satisfied by return receipts or failure to deliver notices), protects the participant's confidential information, maintains the required style/format/content requirements, includes statement as to the significance of the document, and provides a statement as to the right to request a paper version.”

The documents may also be posted to an intranet, benefits admin portal, or HR information system, but the employees must still have electronic access as an integral part of their job. It is not enough to simply post the documents on the intranet; there must be a separate notification sent to each participant notifying them of the document’s availability, the significance, and their right to request a paper copy. The notice may be a paper document or it may be electronic (email). If it is sent via email, the above procedures must be followed.

If an employee does not have electronic access at work, then the employer may request a personal email address from an employee. The employee must give affirmative consent to receive benefit-related notices in such manner.

If the employee does not have electronic access as an integral part of their job, and they do not authorize the employer to send benefits documentation to a personal email address, there is really no compliant method other than delivering by paper (either by hand or mail). If the employer provides the documents in person, it is advisable for them to get the employee’s signature confirming receipt. Otherwise, the employer has no documentation that they have distributed the notices. If delivering by mail, the employer should document their procedures and the date that the documents were mailed to specific employees.

The employer should document and retain all methods of delivery used for each employee.

August 20, 2019

Can An Employer Provide Additional STD Benefits to Employees That Give Birth or Must They Provide the Same Amount of STD Benefits to All Employees?

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Employers are generally free to determine the benefits available to employees, including the amount of any such benefit. Essentially, as long as there is no law that prohibits the employer’s benefit design, the employer could choose to offer additional benefits to certain employees. And we are not aware of any law that requires an employer to treat all forms of leave or disability the same. So, an employer could likely offer greater maternity benefits than are offered for parental leave or other disabilities.

The usual concern when an employer wants to offer a greater benefit for maternity leave is the idea that it could be discrimination based on gender (since only women would be able to receive such a benefit), which would run afoul of Title VII of the Civil Rights Act. With that said, there are common practices that allow employers to achieve the goal of providing additional wage replacement benefits to employees who take maternity leave. Specifically, many employers choose to subsidize short-term disability payments or pay a portion over and above the STD payments for employees who give birth.

If that is the employer’s goal, it would likely be better to structure this type of program by paying additional paid leave to women who have given birth to a baby. This is because the EEOC actually allows employers to distinguish between leave related to any physical limitations imposed by pregnancy or childbirth and leave for purposes of bonding with a child and/or providing care for a child.

Specifically, leave benefits related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms (see the EEOC’s enforcement guide on pregnancy discrimination for more information). To the contrary, employers that simply offer baby bonding time should offer it equally to women and men (as underscored by the EEOC’s settlement with Estee Lauder).

So it’s possible for an employer to offer additional wage replacement or STD benefits to employees who give birth. We would just caution the employer to work with their legal counsel to ensure that their policy is compliant and to include the STD/wage replacement policy in the employee handbooks/communication to the employees, so that the policy is clear to everyone involved. The employer would also want to consider allowing all women employees who give birth the same level of benefits under the policy to avoid any arguments of disparate treatment or discrimination.

August 6, 2019

If an employer makes changes to their benefits in the middle of a plan year, what notice requirements apply?

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There are actually a few different notice requirements in play when an employer makes a change to benefits. ERISA has the summary of material modification (SMM) requirement — any material change to the plan requires the employer to send an SMM within 210 days of the end of the plan year in which the change occurs. If it’s a “material reduction” to benefits, then the notice (SMM or a summary of material reduction of benefits) actually needs to be sent within 60 days of the change. So, those notices are generally after the change occurs.

However, the summary of benefits and coverage (SBC) rules (which came into play under the ACA) say that if there's a material change that impacts the information provided in the SBC, and that change occurs outside of open enrollment (it occurs mid-plan-year), then the employer must distribute an updated SBC (or a notice describing the change) 60 days in advance of the change. So, for modifications to the plan that occur mid-plan-year, that advance-notice SBC will likely need to be distributed. Keep in mind that providing the updated SBC will also meet ERISA’s summary of material modification and material reduction requirements.

Now, if the change or modification (even if it’s a reduction) is occurring as part of renewal or open enrollment (that is, changes that are taking effect for the new plan year), then those changes can be included in open enrollment materials (and a new SBC) that is distributed during open enrollment. So, in that case, there's no need to distribute an updated SBC/notice 60 days in advance. Instead, the employer could just include the updated SBC/notice in the open enrollment materials.

July 23, 2019

We offer employee-paid voluntary benefits. As the employer, we do not contribute to the cost of such benefits. Are we required to include them in the Form 5500 filing?

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ERISA applies to group medical, dental, vision, health FSA, HRA, group disability, AD&D, and group term life. It can also apply to business travel accident plans, telemedicine, and employee assistance programs based on the program’s specific benefits. It does not apply to a dependent care assistance program (DCAPs/dependent care FSA), HSAs, transportation plans, and certain voluntary products.

Employee-paid voluntary products generally fall into that last category. ERISA contains an exception for voluntary plans, if they meet the voluntary safe harbor rules. They do so by meeting the following criteria:

  • 100% employee contributions (no employer contributions).
  • Employee participation is completely voluntary.
  • The employer does not endorse the program. However, the employer may permit the insurer to publicize the program to employees and the employer may collect premiums through payroll deductions and remit premiums to insurer.
  • The employer receives no consideration for plan implementation. However, reasonable compensation (no profit) is allowable for administrative services rendered for the plan.

There is additional guidance on how employers can be involved without endorsing the program:

  • Plan documents, including an SPD/wrap document, should not indicate that the plan is sponsored by the employer.
  • The employer should not encourage or urge participation in the plan.
  • Insurance presentations in the workplace are permissible.
  • Employer may notify employees of the existence of the plan, but should refer plan questions to insurer.
  • Maintaining eligibility lists and submitting enrollment forms to the insurer are permissible.
  • Employees do not contribute to the cost of coverage on a pre-tax basis (not included in the Section 125 plan).

If the voluntary plans meet this criteria, they would be exempt from ERISA, which means they would not be included in the Form 5500 filing, not included in the SPD or wrap document, not subject to the DOL claims and appeal procedures, and the employer would not have fiduciary obligations associated with the plan.

If the only criteria that applies to the plan is that the premiums are taken pre-tax, that alone may be enough to subject the plan to ERISA. Thus, an employer needs to carefully consider whether to include voluntary products in its Section 125 cafeteria plan.

July 9, 2019

In light of DOL guidance on the coverage of ABA therapy and mental health parity, must plans cover ABA therapy?

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There is currently no law federal law that would require a plan to cover ABA therapy. As background, the mental health parity rules generally require that mental health treatment (if it’s offered) must be provided in parity with medical surgical benefits. But mental health parity does not require plans to offer mental health treatment; it simply outlines what must happen if an employer does cover mental health treatment.

So let’s start there: A self-funded plan would likely be allowed to exclude mental health treatment altogether. They could also choose to exclude treatment for autism or simply for ABA therapy. However, some state laws mandate autism treatment and ABA therapy. So fully insured plans might be required to provide the therapy under state law.

Sometimes, self-funded plans do have to follow the state benchmark when it comes to essential health benefits (which are the benefits that must be covered under small plan insurance). This happens because the benchmarks are also used to identify the essential health benefits for purposes of determining whether lifetime or annual limits can be imposed on certain treatment. However, currently, only the state of Ohio and the District of Columbia seem to include ABA therapy as an essential health benefit.

This question has recently come up as some practitioners and employers are familiar with the DOL FAQ that discusses ABA therapy. However, it’s important to note that the DOL did not actually opine on whether or not ABA therapy must be covered. Instead, they answered the question of a hypothetical situation where an employer tries to deny coverage for ABA therapy as an experimental treatment. The problem is that ABA therapy is not considered experimental by professional guidelines. So the FAQ was prohibiting the hypothetical plan from excluding certain mental health treatments as “experimental” when there is not support for that under professional/industry guidelines. (See Q2 of the FAQ:

So in summary, plans are not necessarily required to offer ABA therapy sessions and can likely exclude them or seek to limit those sessions to a certain number unless they are subject to a state insurance mandate that requires the therapy. Keep in mind, though, that autism is an issue with increasing visibility; so it’s likely that we’ll see more guidance/regulations on it as parents and medical practitioners continue their advocacy.

June 25, 2019

Are PCOR fees required for self-insured plans this year?

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Yes, employers of self-insured plans are still required to pay the Patient-Centered Outcomes Research (PCOR) Institute fee for all plan years ending in 2018. The fee is generally due on July 31 of the year following the plan year end date, so the deadline for a plan year that ended in 2018 is Wednesday, July 31, 2019. Unless there is a change to the law, this will be the last year an employer sponsoring a calendar year plan will pay the PCOR fee.

As background, the PCOR fees are payable for plan years ending after September 30, 2012 and before October 1, 2019. If the plan is fully-insured, the insurance carrier is generally responsible for paying the fee. If the plan is self-insured, the plan sponsor is responsible for the fee. For this purpose, a plan sponsor is generally the employer for a single employer plan. Special rules apply for determining who is responsible in the situation of an association plan, MEWA, or VEBA. The IRS has a helpful chart to remind employers which types of plans are subject to the fee.

The PCOR fee generally does not apply to excepted benefits such as stand-alone dental and vision plans or most health flexible spending accounts (FSAs). However, the fee does apply to HRAs and retiree-only plans. There are four methods of calculation available (as detailed below).

Fee Calculation
The general rule is that the PCOR fee is based on the average number of covered lives during the plan year. Importantly, this includes not only employees, but also dependents (spouses, children, and others) as well as former employees still receiving coverage under the plan (former employees on disability who are still covered, retirees, COBRA participants, and so on). However, for an HRA plan, the fee is payable only on employees (not spouses and dependents). The IRS allows employers to use any one of four methods for calculating lives, as described below:

  1. Actual Count Method: Calculate the sum of the lives covered for each day of the plan year and divide that sum by the number of days in the plan year.
  2. Snapshot Method: Add the total number of lives covered on any date (or more dates, if an equal number of dates are used for each quarter) during the same corresponding month in each of the four quarters of the benefit year (provided that the date used for the second, third, and fourth quarters must fall within the same week of the quarter as the corresponding date used for the first quarter). Divide that total by the number of dates on which a count was made.
  3. Snapshot Factor Method: The calculation is the same as the snapshot method, except that the number of lives covered on a date is calculated by adding the number of participants with self-only coverage on the date to the product of the number of participants with coverage other than self-only coverage on the date and a factor of 2.35. For this purpose, the same months must be used for each quarter (for example, January, April, July, and October).
  4. Form 5500 Method: The plan may use the data reported on the most recent Form 5500. A plan may only use this method if it filed the Form 5500 by July 31. A plan filing an extension for the Form 5500 would have to use another calculation method. If a plan covers only employees, then the plan sponsor would add the number of participants at the beginning of the plan year and at the end of the plan year and divide by two. If the plan covers dependents, the plan sponsor would add the number of participants reported for the beginning of the plan year and the number of participants at the end of the plan year, and report this total.

Employers may switch methods from one year to the next, and should calculate the average number of lives under all four methods and choose the one that is most favorable.

The PCOR fee is filed and paid via IRS Form 720, Quarterly Federal Excise Tax Return. The PCOR fee is reported in Part II of that form, which also includes the amount of the fee (based on when in 2018 the plan year ended). For plan years ending on or after October 1, 2017 and before October 1, 2018, the fee is $2.39 per covered life. The fee for plan years ending on or after October1, 2018 through October 1, 2018 is $2.45 per covered life. Employers should work with their advisors and tax advisers in ensuring proper filing and payment of the fee.

IRS Information on PCOR fees: »
IRS PCOR Questions and Answers »
Form 720: »
Form 720 Instructions: »

June 11, 2019

What is the appropriate correction when, due to an administrative error by the employer or COBRA vendor, a COBRA participant has been charged incorrect premium rates?

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Generally, if the plan documents and COBRA election notices clearly provide that COBRA premiums will be 102% of the applicable premium, and if there has been a clear or mathematical error which results in an undercharge for COBRA coverage, it is likely permissible to correct the error on a prospective basis.

Specifically, the IRS COBRA regulations state that if a plan is charging less than the maximum permitted amount, it may increase its rates to that level. Thus, it’s widely understood that the employer is allowed to make the change to increase the premiums going forward. That said, there isn’t specific guidance as to how the employer should specifically engage in such a correction. The intent would be to put the COBRA participants and beneficiaries back in the position that they would’ve been had the employer not made the mistake.

If a COBRA participant has already elected COBRA under the presumption of the incorrect amount, the conservative position would be to renotify each COBRA participant who was incorrectly informed so that they are made aware of the correct premium amount. They would then charge the appropriate amount going forward.

As for correcting the undercharge retroactively, there is no explicit guidance on collecting a shortfall (that is, retroactive collection). The regulations do not appear to specifically allow or prohibit it. The employer could explain the mistake to each impacted COBRA participant and ask for the shortfall payment. But if the COBRA participant refused and the employer wanted to demand retroactive payment, they would not likely have statutory grounds to collect it. So, collecting shortfalls as a result of a mistake may be problematic, both in success as well as the administrative burden on either the employer or the COBRA vendor. Thus, if an employer wants to proceed in retroactive collection, they’d be best served by speaking with outside counsel for guidance.

May 29, 2019

Can an employer choose not to allow mid-year changes to employees’ HSA contribution elections?

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While an employer could choose to limit employees’ HSA contributions in some ways, they have to allow employees the chance to change their HSA contribution amount at least monthly.

As background, pre-tax HSA contribution election changes must be allowed at least monthly and upon a loss of HSA eligibility. This requirement correlates with the HSA monthly eligibility rules. Although an employer could choose to place other restrictions on HSA contribution elections under its cafeteria plan (such as only allowing one election change per month), the same restrictions must apply to all employees.

So the employer would essentially have to allow employees to change their HSA contribution elections on at least a monthly basis. Keep in mind, though, that many employers just allow open-ended prospective election changes to employees’ HSA contributions.

Ultimately, the circumstances under which mid-year election changes will be allowed for HSA contributions should be addressed in the cafeteria plan document and in participant communications.

May 14, 2019

What is required for FSA substantiation and what steps should the employer/administrator follow if substantiation is not provided?

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The Section 125 health FSA regulations require all health FSAs offered through a Section 125 cafeteria plan to have adequate claims substantiation to ensure that it pays only for legitimate health and medical expenses. This means that reimbursements must: 1) Be substantiated by an independent third party (describing the service/product, the date of service/sale, and the amount of the expense), and 2) have a statement from the participant that the medical expense has not been reimbursed by any other health coverage (and that he/she won't seek reimbursement).

If the substantiation requirements are not satisfied, the IRS could potentially treat all health FSA reimbursements as taxable, whether or not they were properly substantiated. In addition, the health FSA and the Section 125 cafeteria plan that funds it could be disqualified, causing a loss of favorable tax treatment for the employer and the employees.

So, when an employee has not provided adequate claims substantiation (including claims that qualify for after-the-fact-substantiation but for which proper substantiation is not subsequently provided), employers and administrators should ensure that there are collection procedures in place to recoup these improper payments. These recoupment procedures should be addressed in the governing plan document. Most plan documents have general provisions regarding the powers of the employer, but the best practice is for the plan document to expressly provide for recoupment of improper benefit payments. The SPD should also explain that the employer will recoup improper payments from the participant.

As to the specific procedures to follow, the IRS guidance provides multiple steps for recoupment. These initial steps, outlined below, can be taken in any order, as long as they are consistently applied for all participants.

Step one, the administrator should first follow the debit card correction procedures (if applicable), and deactivate the debit card until the amount of the improper payment is recovered. This step ensures that no further violations will occur.

The next step is to attempt to correct the error by “demanding” repayment from the participant. This generally involves a letter being sent to the participant as soon as possible that identifies the amount to be displayed, the reasons for requiring repayment, and the timeframe in which repayment must be made. The participant can write a check to the employer (or to the plan, if the plan is funded) in the amount of the mistaken reimbursement, or if properly authorized and allowed under state law, the employer can withhold that amount from the participant’s pay or other compensation on an after-tax basis. If the employer seeks to withhold the amount from pay or other compensation, the plan document must provide for this action and the administrator must be mindful that the withholding is compliant with the applicable state wage withholding laws. It is also important to keep in mind that, if the amount to be recouped is large (or the participant’s pay rate is low), repayment may need to occur in installments to avoid a cash-flow hardship to the participant.

Alternatively, the administrator could apply a substantiation or offset approach against subsequent valid FSA claims, up to the amount of the improper payment. The IRS has informally commented (in the context of the debit card correction procedures) that improper health FSA payments can be offset against other health FSA claims. The recouped amounts can be used for other eligible expenses incurred before the end of the plan year (or other period of coverage).

If the above steps are unsuccessful, the IRS guidance states that the improper payment should be treated as any other business indebtedness. Under this step, the employer must request payment consistent with its collection procedures for other business debts (depending on the amount, this might even include a lawsuit). If the improper payment is not recovered, it should generally be treated as a forgiven debt and reported as wages on Form W-2 for the year in which the indebtedness is forgiven, so that the reported amount becomes subject to withholding for income tax, FICA, and FUTA.

Please keep in mind that the IRS has indicated that treating improper payment as uncollectible “should be the exception, rather than a routine process” and that repeatedly including such payments in participants’ income suggests the plan lacks proper substantiation procedures or may be cashing out unused health FSA amounts. So, the steps detailed above should be the normal practice for recoupment and treating the payment as a business debt a last resort.

If the improper payment occurred in a prior year, then guidance from the IRS and Treasury Department is conflicted as to the available options for recoupment. In 2010, a Treasury Department representative indicated that an improper health FSA reimbursement could be offset against future claims in the second plan year (in which the overpayment was discovered). However, in 2014, the Office of Chief Counsel issued an Advice Memorandum which indicated that if an offset of claims could not be accomplished in year one (the year the overpayment occurred), the offset could not be done in year two. So, in light of the conflicting guidance, the conservative position would likely be to treat the improper payment as business indebtedness and that, if forgiven, must be reported as wages and an amended Form W-2 be made for the year in which the debt is forgiven (as described above).

For additional information regarding health FSAs, NFP has an informational webpage.

April 30, 2019

At what point would two merging companies that had fewer than 50 employees last year fall under the ACA’s employer mandate and reporting requirements?

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The ACA's employer mandate applies in the current year if an employer (or two companies that are commonly owned) has 50 or more full time employees (including equivalents) in the prior calendar year. Importantly, in counting “employees” the employer needs to calculate full-time equivalents, which include both full time (FT) employees (those working 30 or more hours per week) and part-time (PT) employees (for anyone who is not FT, add the total number of PT employee hours per month and divide by 120).

Also, only employees are included in the count, so owners would only be included in certain situations. For example, if owners are partners in a partnership, S-corp shareholders of more than 2%, or LLC owners where the LLC is taxed as a partnership, they would be considered “self-employed” and therefore wouldn't be included. If they were C-corp owners/employees (received W2 income) or LLC owners where the LLC is taxed as a C-corp and have owner/employee status (received W2 income), then they'd be considered employees and would be included in the count.

The ACA employer mandate count looks at the average number of employees working during the previous calendar year. The count also pulls in commonly-owned companies together, so that employees of both companies are included.

So, if two companies under common ownership hit 50 FT equivalents in 2019, then the mandate would apply in 2020. Assuming the two companies didn't have 50 employees/equivalents in 2018, they wouldn't have to comply with the mandate in 2019. Instead, they'd have to comply with the mandate in 2020. They would actually have until April 1, 2020 (there's a special rule that allows them a three-month “grace period” the first year that they're subject to the mandate).

That said, it might be easier to just comply beginning January 2020 (particularly if they have a calendar year plan). So 2020 would be the year that they'd have to identify and offer affordable coverage to all their FT employees (those working 30 hours or more per week); part-timers would not have to be offered coverage.

As for reporting, that attaches to the employer mandate's application. So if the mandate applies in 2020, the employer would have to report in 2021.The employer group would have to file Forms 1094-C and 1095-C (for each FT employee) with the IRS in early 2021 (by February 28 if filing by paper and by March 31 if filing electronically); and they would also have to distribute a copy of 1095-C to each FT employee by January 31, 2021. The IRS could potentially delay those due dates (they've done that in years' past), but those are the general deadlines.

April 16, 2019

Is an employer required to offer coverage to a temporary employee working full-time hours?

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The answer depends on many factors. Specifically, the employer group’s size and the nature of the temporary employees’ work will determine if coverage must be offered.

A small employer (with fewer than 50 full-time employees, including equivalents) must carefully review its plan documents and insurance contract for the terms of eligibility. If they simply state that employees working a certain number of hours per week are eligible, a temporary employee satisfying the hour requirement would qualify and would need to be offered coverage. If the intention is to exclude temporary employees, the small employer should work with outside counsel to review its employment practices and draft appropriate plan language.

Under the ACA’s employer mandate, large employers with 50 or more full-time employees including equivalents must offer coverage to employees working 30 hours or more per week. The only exceptions are for variable hour employees whose hours fluctuate above and below 30 hours and seasonal employees. These two categories of employees may be measured in a look-back measurement period and offered coverage prospectively if they average full-time hours during the measurement period.

Part-time employees should also be measured and monitored. If any of the classified part-time employees are in fact averaging full-time hours, they should be offered minimum value, affordable medical coverage as are other full-time employees. If they are not offered such coverage, the employer is at risk for an employer mandate penalty if one of the employees goes to the exchange, purchases individual coverage, and receives a premium tax credit.

There is no exception under the employer mandate for non-seasonal temporary employees. If they are regularly working 30 hours or more per week for more than three months, they should be treated as any other full-time employee and offered minimum value, affordable coverage.

If the temporary employee is employed through a staffing agency, that adds another dimension. Temporary employees who work multiple assignments with varying lengths are generally the common law employee of the staffing agency. An employer would generally not need to offer such an employee coverage.

However, if the temporary employee is on a long-term assignment with the employer, the employee could still be considered the employer’s common law employee even if the employee receives a paycheck from the staffing agency. In this case, the employer would need to review its contract with the staffing agency to see if the staffing agency is going to offer coverage to the employee and include them in reporting on the employer’s behalf. If the staffing agency does not accept that responsibility, the employer will need to offer coverage if the employee is working full-time hours for the employer and include them in reporting.

April 2, 2019

Can self-funded plan sponsors, including religious organizations, choose not to cover same-sex spouses on their group health plan?

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After the US Supreme Court decision in Obergefell v. Hodges, all states recognize same-sex marriages, and state insurance laws require that they be recognized by fully-insured health plans. While some make the argument that self-funded plans would not be subject to that requirement (since they aren’t subject to state insurance laws due to ERISA preemption), we are of the opinion that any self-funded employer seeking to limit coverage to opposite-sex spouses should seek counsel.

Since the Obergefell case did not speak to the application of the case to benefits, some are of the opinion that a self-funded plan that wishes to exclude coverage for same-sex spouses may do so. Keep in mind, though, that a self-funded plan that provides coverage to opposite-sex spouses, but excludes coverage for same-sex spouses risks litigation under Title VII of the Civil Rights Act of 1964. Specifically, some courts and the EEOC have contended that excluding coverage for same-sex spouses would be discrimination based on sexual orientation.

In one example of a case that was settled through the EEOC, the EEOC linked a press release that can be found here on the EEOC Newsroom page. The press release discusses a group health plan that specifically excluded coverage for same-sex spouses. One of the participants filed a complaint and the EEOC brought suit against the employer for Title VII discrimination. As part of the settlement, the employer had to reimburse health care expenses for the same-sex spouse and revise its policy.

Even religious organizations and religiously-affiliated institutions should consult with counsel before excluding same-sex spouses from coverage. While the EEOC does recognize a sort of “ministerial exception” available to churches under some laws, the exception doesn’t tend to allow churches the right to discriminate for every purpose. Instead, whether or not a religious institution could claim an exception under Title VII or any other federal law would likely involve a facts and circumstances-based determination. Additionally, there is always the risk of litigation of the matter.

So ultimately, while it seems that a self-funded plan sponsor could choose not to cover same-sex spouses, doing so would likely open the employer up to the risk of litigation. And courts and the EEOC have made it clear that they find a same-sex spouse exclusion to be discrimination. As such, an employer who wants to keep such an exclusion should work with their outside counsel (even if the client has a religious basis for excluding such coverage), and that counsel would be best suited to draft any documentation of the exclusion (if they move forward with one).

March 19, 2019

Is providing a COBRA Initial Notice in our enrollment packet for eligible employees sufficient to meet the distribution requirement?

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No, distributing the COBRA Initial Notice (also known as the General Notice) to all newly hired eligible employees in an enrollment packet is not sufficient for several reasons. As a reminder, the notice must be distributed to all newly enrolled employees and spouses within 90 days after commencement of coverage.

First, the Initial Notice should only go to covered participants. The first paragraph of the notice begins, “You’re getting this notice because you recently gained coverage under a group health plan (the Plan). This notice has important information about your right to COBRA continuation coverage.” Providing the notice to all newly eligible employees before enrollment is providing them with inaccurate information of rights that they do not yet have and never will have if they waive coverage. A plan administrator is required to provide the notice within 90 days after the participant enrolls and coverage begins.

Second, the Initial Notice is required to be distributed to not only covered employees, but also covered spouses. An enrollment packet is distributed only to the employee. The spouse is not considered a recipient of an enrollment packet. As such, the notice should be mailed to the home address on file with the spouse indicated in some manner on the envelope, such as John Doe and Spouse, John and Jane Doe or Mr. and Mrs. John Doe. If the employee and spouse enrolled at the same time, a single notice is sufficient as long as they are not known to have separate addresses.

Lastly, this is one of the most difficult notices for a plan administrator in terms of compliance dates. Many employers only think of the notice as a new employee notice. However, the notice is required to be provided to any newly enrolled employee or spouse. Consider the following scenarios:

  • A newly hired employee waives enrollment when initially eligible, but enrolls in single-only coverage during the next open enrollment.
  • An employee is enrolled in single-only coverage. During the year, he gets married and adds his spouse.
  • A newly hired employee waives enrollment when initially eligible, but enrolls in family coverage midyear upon the loss of other coverage.

A COBRA Initial Notice is required to be distributed in all of these scenarios. If you have any questions or would like to request a copy of the model notice, please ask your consultant.

March 5, 2019

Does gaining eligibility for Medicare or Medicaid create a qualifying event that allows an employee to add or drop employer coverage?

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If the group allows pre-tax salary reductions, then the Section 125 cafeteria plan regulations limit an employee’s ability to make changes to their elections midyear. They may only do so upon the occurrence of a qualifying event. There are two types of qualifying events: HIPAA Special Enrollment Rights (SERs) and the permissible Section 125 qualifying events.

Becoming entitled to Medicare or Medicaid is a permissible Section 125 qualifying event that may allow the employee to make a midyear election change. Individuals can become eligible for Medicare by virtue of turning age 65 or as a result of being diagnosed with various disabilities. Individuals can become eligible for Medicaid based on their state’s income threshold. However, becoming “entitled” to Medicare or Medicaid is not just reaching eligibility; instead, Medicare and Medicaid entitlement occurs when the individual is actually enrolled in either of those programs.

Now, if an entitlement to Medicare or Medicaid occurs midyear, then the regulations also require that any such change request comply with a special consistency rule. In other words, the change must be consistent with and on account of the qualifying event. For example, upon entitlement to Medicare or Medicaid, an election change request that is considered consistent would be a reduction in coverage or termination from the group plan with an accompanying salary reduction. The idea is that an individual that gains coverage under Medicare or Medicaid wouldn’t need as much coverage under the employer group plan. So, an employee becoming entitled to Medicare or Medicaid would be allowed to reduce or drop coverage, but a request to enroll or add to existing coverage likely would not be allowed.

This permissible qualifying event would also allow employees to reduce or cancel coverage through the plan’s FSA. However, it is not clear whether this qualifying event would allow employees to drop stand-alone dental or vision coverage. On one hand, dental and vision could be considered a group health plan. On the other hand, there is an argument that a change to dental or vision coverage would not be consistent since Medicare and Medicaid don’t cover dental or vision.

Please keep in mind that the permissible Section 125 qualifying events are not mandatory. So the plan document must be designed to allow for this qualifying event in order for the employee to make a midyear election change on account of enrolling in Medicare or Medicaid.

February 21, 2019

We have seasonal and temporary employees. When do we have to offer benefits to these employees?

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Generally, an employee who is hired to work 30 or more hours per week is considered full-time and therefore must be offered coverage under the employer mandate. This would also include even a temporary, contract or short-term employee if they are working or are expected to work 30 hours or more per week.

If an employee’s hours vary above and below 30 hours per week and there is no reasonable expectation that they will always work full-time hours, then they could be placed in a look-back measurement period. But again, if an employee is reasonably expected to work full-time hours (based on determinative factors such as comparable full-time positions, how it was advertised in a job description and so on), they should not be placed in a look-back measurement period and instead should be offered coverage after completing the normal new hire waiting period.

Further, the rules expressly state that an employer may not consider that employment will end during the initial measurement period, even if the employee has a short-duration employment contract. For example, if an employee is hired to work 30 hours per week but is expected to be laid off at some point, the employee could not be treated as part-time.

However, the employer mandate allows for a limited non-assessment period, which basically means that the employer would not be penalized if coverage is not offered to a full-time employee for the first three months, as long as that employee is offered coverage by the first day of the fourth month following hire. In other words, the employer has about a three month break to offer coverage after a full-time employee is hired.

So, if an employee works less than three months, the employer would not have to offer those employees coverage (even if that employee is a full-time employee—working 30 hours per week). Beyond that third month, though, the employer would need to offer coverage to that employee. For example, if any temp employees who work 30 or more hours are employed for five months, the employer would need to offer coverage for that fourth and fifth month in order to avoid a penalty. So, if any temporary employees would be employed for more than a few months, they would need to be offered coverage by the first day of the fourth month following hire, and could not be placed in a look-back measurement period.

Keep in mind, though, that the client would still need to consider their plan document terms. Specifically, if the plan document indicates that employees are generally eligible for coverage immediately or first of the month following 30 or 60 days, then the employer should make all full-time employees eligible on that timeline (including temporary employees). So if an employer would like to take advantage of the full limited non-assessment period for certain classes of employees, they will need to ensure that their plan document reflects that. In other words, while there may not be a problem with waiting to offer coverage under the employer mandate, the employer still needs to administer the plan according to their plan terms.

Now, a “seasonal employee” under the employer mandate is specifically one whose customary annual employment does not exceed six months and whose work begins at approximately the same time each year. If the employees are not, in fact, seasonal for this purpose, the only way they could be placed in a look-back measurement period is if they were hired as working variable hours (as opposed to working 30 or more hours per week).

So, an employer would need to determine if their seasonal employees actually meet the definition of seasonal under the employer mandate. Otherwise, if they will be working 30 hours or more per week just for a short duration, they’re probably not actually variable hour employees, and they’re likely not seasonal employees either. As such, the employer would be at risk of an employer mandate penalty if they fail to offer full-time employees affordable, minimum value coverage by the first day of the fourth month.

If they are, indeed, seasonal employees (as defined under the rules), or if they leave employment before the limited non-assessment period is up and are not eligible, a 1095-C would not need to be generated for such employees. But, again, an employer would need to make sure these “temp” or “seasonal” employees are actually considered variable hour employees, and not full-time eligible employees.

February 5, 2019

Does the actual cost of group term life coverage matter when determining the amount of imputed income?

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No. If the aggregate death benefit payable on all employer-provided group term life insurance (GTLI) during a period of coverage (usually one month) exceeds $50,000, the actual cost of the coverage does not matter when calculating the imputed income amount. If the coverage exceeds $50,000, then the imputed income amount is determined using the IRS Table I rates.

As background, generally the cost of employer-provided GTLI is included in an employee’s gross income. However, IRC Section 79 provides that an employee may exclude the cost of up to $50,000 of employer-provided GTLI coverage from income on his or her own life. The exclusion applies only to insurance on the life of the employee, and not on the life of a spouse, dependent or any other person.

Importantly, the exclusion is determined on a calendar-month basis. So, for purposes of determining the employee’s own tax liability, all employer-provided GTLI provided during a month is considered when applying the $50,000 limit.

If the employee receives more than $50,000 of employer-provided GTLI coverage for a period of coverage (a calendar month), then the cost of the insurance in excess of $50,000, less any amount paid by the employee with after-tax contributions, is included in the employee’s gross income for both federal income tax and FICA purposes. The included amount as a result of the excess coverage is commonly referred to as “imputed income.”

The cost of GTLI coverage taken into account in determining an employee’s imputed income is determined using a uniform table of life insurance rates outlined in IRS regulations, commonly known as the “Table I rates.” Table I establishes gradually increasing rates based on age, which are generally structured in five-year age brackets. For purposes of the table, an employee’s age is determined by his or her age at the end of the taxable year.

For example, if an employee receives $250,000 in coverage from the employer-paid group term life coverage, then $200,000 of excess coverage (250,000-50,000=200,000) must be counted in the employee’s gross income using the rates from Table I. If the employee is age 60, then the employer would first calculate .66 (Table I rate for insured age 60) per $1,000 of excess coverage (200 x .66 = 132), then by number of coverage months (132 x 12 = $1,584).

Any additional spouse/dependent coverage (let's say $20,000 of dependent coverage) from the employer-paid GTLI must be counted in the employee’s gross income using the rates from Table I. If the spouse is age 39, the employer would calculate .09 (Table I rate for insured age 39) per $1,000 of coverage (20 x .09 = 1.80), then multiply by number of coverage months (1.80 x 12 = $21.60).

So, to be clear, the requirement to impute income for the spouse/dependent GTLI is independent of the employee’s GTLI amount. All employer-sponsored spouse/dependent GTLI is imputed income to the employee. As another example, the employee could have $40,000 in GTLI and $20,000 on his/her spouse/dependent. The employee’s GTLI amount would not need to be imputed because it is under $50,000, but the $20,000 in spouse/dependent GTLI would need to be added to the employee’s gross income (again, since it is employer-paid GTLI).

After determining the cost of coverage through the Table I rate, the aggregate cost of the coverage for the employee’s taxable year is reduced by the amount, if any, that the employee paid toward the purchase of all employer-provided GTLI. Employee payments toward the purchase of such coverage do not include amounts contributed by pre-tax salary reduction under a cafeteria plan, amounts paid for non-employer-provided GTLI coverage or amounts paid for GTLI coverage during a different taxable year. In other words, the Table I aggregate cost of coverage may only be reduced by after-tax employee contributions; employer contributions and employee pre-tax contributions do not reduce the aggregate cost.

Although an employee’s imputed income for GTLI is not subject to income tax withholding, employers must report the income and must withhold FICA taxes on it. Employers are responsible for determining imputed income only for that employer’s GTLI coverage; employers are not required to take into account coverage provided by an unrelated employer.

In addition, there is a “de minimis” amount for dependent coverage. In other words, if the face value of the dependent coverage is $2,000 or less, then it isn’t includable in the employee’s taxable income (see page 9 of Publication 15-B). For example, if the employer-provided spouse/dependent GTLI is $20,000, this would not fall under the de minimis amount allowed for dependent coverage.

Therefore, employers should review their GTLI benefit plan offerings, and determine whether the employee coverage exceeds $50,000. If so, then the employer will have to determine the aggregate cost of coverage that exceeds $50,000, and that cost must be included in the employee’s gross income as imputed income. Any spouse/dependent amounts (assuming they exceed the de minimis amount) would generally be counted as taxable income to the employee subject to federal withholding (although imputed income for employee’s group coverage would not be subject to federal withholding). The employer will need to consult the Table I rates to make that determination based upon the insured’s age, and engaging outside tax counsel or an accountant may be necessary in some instances.

January 23, 2019

If an employee failed to establish an HSA in 2018, but was otherwise HSA-eligible in 2018, can the individual (or the employer on their behalf) make 2018 HSA contributions in 2019?

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The short answer is yes. Generally speaking, contributions can be made to an HSA up until the due date of the individual's (employee's) federal income tax return for that particular year. That means for 2018 contributions, individuals can contribute to their HSA until April 15, 2019. Since employers (and other third parties) can contribute to an individual’s HSA on their behalf, that rule includes both employer and employee/individual HSA contributions. So, either the individual or the employer on their behalf can make 2018 contributions up until April 15, 2019. The individual (or the employer on their behalf) should notify the HSA trustee/bank that the contributions relate to 2018. The general idea, though, is that the contributions should be allocated to 2018 (and therefore counted towards the individual’s 2018 HSA contribution limit)—the contributions would not impact the individual’s 2019 HSA contribution limit.

Digging a bit deeper into employer obligations, if the employer’s HSA contributions are running through the cafeteria plan (as are most employer HSA contribution designs), then the employer’s contribution design must not favor highly compensated employees per the Section 125 nondiscrimination rules. Making a 2018 contribution in 2019 for an employee who did not timely establish their HSA would not by itself favor highly compensated employees — it would just be giving the employee the contribution they were otherwise entitled to in 2018. If the employer’s HSA contributions are not running through the cafeteria plan, then the HSA comparability rules apply. Those rules also allow 2019 funding for contributions (plus interest) otherwise due in 2018, but the employer should have sent a notice to the employee at the end of 2018 notifying the employee of their obligation to open the HSA (by the last day of February 2019) before employer HSA contributions can be made. The IRS has a model notice for this notice requirement.

Importantly, regardless of whether the employer’s HSA contributions are run through a cafeteria plan or not, employees may not reimburse themselves from the HSA for medical expenses incurred in 2018 since there was no HSA account set up. This relates back to the general rule on HSA reimbursements (also called “distributions”) — individuals may be reimbursed only for expenses that are incurred after the HSA is established. An HSA is established per state law, so the exact answer might vary. But generally speaking, an HSA is considered established when the employee (or employer on their behalf) completes the proper paperwork or application to create the HSA account and the HSA is funded (once money actually goes into the HSA). So, an employee who failed to take appropriate steps to establish the HSA in 2018 could not be reimbursed through an HSA for medical expenses incurred in 2018. Once the HSA is established and funded in 2019, though, the employee could use HSA reimbursements for any expenses incurred after the 2019 HSA establishment date.

January 8, 2019

With the ACA Section 6056 employer reporting deadlines fast approaching, what are some of the most common reporting errors that employers make?

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Large employers with 50 or more full-time employees in 2017, including full-time equivalents, are required to comply with certain reporting requirements under Section 6056 of the IRC for calendar year 2018. The employer must complete and distribute a Form 1095-C by March 4, 2019, to each employee who was full-time for at least one month in 2018. If filing by paper, the employer must file those forms and the transmittal Form 1094-C with the IRS by Feb. 28, 2019; if filing electronically, the deadline is April 1, 2019. Employers filing 250 or more forms are required to file electronically.

As this is the fourth year of reporting and the IRS has begun enforcement, there are some common errors made by employers that can be identified:

Failure to file. Remember that size is determined in the previous calendar year and is based on the total size of all related employers. Thus, if a small employer is part of a controlled group and the total number of full-time employees across the group is 50 or more, then all employer members of a controlled group are subject to the employer mandate and reporting requirements.

If an employer discovers that they were delinquent in a previous year, they should work to correct the failure as soon as possible. This would include both filing the late forms with the IRS and distributing the forms to full-time employees. Failure to file can carry a penalty of $540 per form with possible increased penalties for willful neglect.

Qualifying Offer. The code 1A used on Line 14 of the Form 1095-C and the related “Qualifying Offer Method” on Line 22 of the Form 1094-C are often misunderstood. Many think that if they complied with the employer mandate by providing minimum value and affordable coverage then they use this code and check that box. But the term “qualifying offer” is very specific and most employers will not qualify for this method. A qualifying offer means that the employer’s offer is not only of minimum value but also that it is affordable per the federal poverty level safe harbor. In order to qualify, the employee’s required cost for self-only coverage must have been $96.71 or less per month in 2018. If the employee’s cost of coverage was more, that does not necessarily mean that the coverage was not affordable or that the employer did not comply with the mandate. It simply means that the employer may need to use 1E on Line 14 and the cost of coverage may have been affordable using one of the other two affordability safe harbors: rate of pay or Form W-2.

Failure to review forms prior to submission. In Column (a), Part III of the Form 1094-C, large employers must indicate whether they offered minimum essential coverage to substantially all of their full-time employees for every month in 2018. Substantially all means at least 95 percent of full-time employees.

In previous years, many employers who indeed complied with the requirement indicated a “No” response in the column. In many cases, this error was due to how data was processed either by the software or the vendor that was utilized for reporting. Remember that even if there is a third party completing the reporting on behalf of the employer, the employer is ultimately responsible for the accuracy of the information and any associated penalties for failures.

A “No” response in Column (a), Part III of the Form 1094-C can result in Penalty A being assessed against the employer by the IRS, which is $2,320 ($193.33 prorated monthly) multiplied by the total number of full-time employees minus the first 30 employees. Thus, it is crucial for an employer to review all forms for accuracy prior to filing with the IRS and distributing to employees.

NFP has many resources to assist employers with their filing requirements. Please contact your consultant with any questions.

December 11, 2018

How does an employer determine if they are over the 250-form threshold for the Forms W-2 reporting requirement? And if over the threshold, what types of coverage must be reported?

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Generally, the count is based on the number of Forms W-2 filed under each separate EIN for the previous calendar year. To determine if an employer must provide the cost of coverage for 2018, the employer would look back and determine if they filed fewer than 250 Forms W-2 under their EIN in 2017. If less than the 250-form threshold, then they wouldn’t be subject to the Form W-2 cost of coverage reporting for 2018, even if they are self-insured.

Please note that the aggregation/controlled group rules don't apply when it comes to the 250 threshold for the Forms W-2 reporting requirement. This means that if there are entities that have different EINs and that separately file their Forms W-2, their employees can be counted separately. So, if each EIN corresponded to less than 250 Forms W-2 in the prior year, the reporting requirement would not apply. However, if the entity is set up with different divisions within the same EIN, then they would have to look at the entire employee count for this reporting requirement.

If an employer did file more than 250 Forms W-2 during the previous year, what coverage costs are included within the report? The total cost of coverage to be included is the employee and employer contributions that are excludable from the employee’s gross income under IRC Section 106 (or that would be excludable if it were paid by the employer). This includes employer-sponsored major medical coverage, both fully and self-insured (e.g., PPO, POS or HDHP). It would also include prescription drug coverage and any dental/vision coverage that is combined with major medical coverage.

An employer would not report any “excepted benefits” (those not subject to HIPAA, and thereby exempt from ACA), including stand-alone dental or vision plans, non-coordinated and independent benefits (such as hospital indemnity or specific-illness plans), and health FSA salary reduction elections (but there are special rules regarding optional employer flex credits that could be used to contribute to an FSA). HRAs, HSA contributions, long-term care and coverage under Archer MSAs also are not included.

Employers will also want to review their EAP, wellness and on-site medical clinic arrangements and programs. If COBRA applies to those plans, then the cost of these programs will need to be included in the reportable cost. Whether COBRA applies is a bit trickier analysis, but it basically comes down to whether the EAP, wellness program or on-site medical clinic is providing medical care. Employers should work with outside counsel in making that determination.

If the employer continues to have questions, they should review their obligations under this requirement with their advisor. Additionally, the IRS has provided a Q&A ( to assist employers in both determining whether they are subject to the reporting requirement and calculating the total cost of coverage. NFP has information as well. Please ask your advisor for more information.

November 28, 2018

Are shareholders (2% or more) of S-corporations eligible to pay for benefits on a tax-advantaged basis through the employer’s cafeteria plan?

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A more than 2% S-corporation shareholder is not considered an employee for IRC Section 125 purposes. They are considered self-employed. Only employees can participate in pre-tax benefits through a Section 125 cafeteria plan. This means that individuals who are considered self-employed are not eligible to participate on a tax-advantaged basis. So, the health FSA and dependent care FSA (DCAP) options become less valuable because their only purpose is the tax savings. Once that is taken away, there really isn’t a point to participating.

On the other hand, they can still continue participation in the underlying health plans through a Section 125 plan (medical, dental, vision), but cannot make premium contributions on a pre-tax basis. The same would be true for any qualified benefit offered through the cafeteria plan. So, owners may generally participate in the plan, but certain owners cannot participate on a pre-tax basis under Section 125. In other words, self-employed owners are allowed to participate in the plan itself (assuming they are otherwise eligible per the terms of the plan), but self-employed owners are not allowed to participate on a tax-favored basis under Section 125, whether the plan is a fully insured plan or a self-insured plan. So, if the owner is not an employee, they would just have to participate by paying premiums post-tax. C-corporation owners are generally treated as employees and eligible to participate on a pre-tax basis.

In regards to an HSA, they may make post-tax contributions and then claim them as a deduction on their individual tax return. See IRS Form 8889 instructions, page 3. Since they are not employees, they also cannot receive pre-tax employer contributions to their HSAs.

In regards to an HRA, the IRS has stated that 2% S-corporation shareholders, sole proprietors, and partners in a partnership are treated as self-employed and are not eligible for the tax-free benefits of an HRA. Further, the IRS has informally stated that such individuals would not even be eligible for the HRA on a taxable basis. Conversely, C-corporation owners are typically considered employees and could participate in the HRA and receive tax-free benefits.

Lastly, these rules not only apply to the S-corporation shareholder but also to the shareholder’s children, parents, and grandparents due to ownership attribution rules contained in the IRC. Specifically for S-corporation shareholders, the Section 125 rules refer to 2% shareholder ownership as incorporating the family attribution rules (found in IRC Section 318). Section 318 basically says that someone that has a certain relationship with the owner is treated as having the same ownership interest as the owner. Specifically, an individual is deemed to own the interest held by his or her spouse, children, grandchildren and parents.

November 13, 2018

We offer a high deductible health plan with an HSA to our employees. If the deductible is embedded, how does this impact the HDHP’s limits for 2019?

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In order for an individual to be eligible to open and contribute to an HSA, they must be enrolled in a qualified HDHP and in no other disqualifying coverage (no “first-dollar coverage”). A qualified HDHP cannot pay any benefits before the minimum statutory deductible is met ($1,350 for self only HDHP and $2,700 for family HDHP in 2019). There is also a maximum out of pocket (OOP) limit for QHDHPs ($6,750 and $13,500 for 2019, respectively).

There is a special rule regarding embedded deductibles for individuals with family HDHP coverage. In order for the health plan to remain an HSA-qualified HDHP, the plan cannot pay benefits for an individual under the family tier of coverage until the minimum statutory family deductible has been met. This is tied to the statutory family deductible, not the plan’s family deductible. So, benefits could not be paid for an individual with family HDHP coverage in 2019 before the insured has met at least $2,700 of the deductible.

For example, Pat is enrolled in self-only HDHP; his deductible is $1,500. All covered expenses are paid 100 percent after he has met his deductible.

John, Jane and Junior are enrolled as family on an HDHP. The whole family has to meet $3,000 deductible for everyone’s expenses to be paid 100 percent for the rest of the year. If any one individual in the family has $2,700 in expenses, that one person has met the individual embedded deductible and has their own covered expenses paid 100 percent while the other family members continue to accumulate up to $3,000. Typically, one person in the family tends to meet their full deductible in the year. So, the scenario could be Jane has $2,700 in expenses and meets her embedded individual deductible, John has $100 and Junior has $200. Then claims would be paid 100 percent for all members going forward. Another way they could meet the family deductible would be if Jane incurs $1,000, John incurs $1,500 and Junior incurs $500. In this case, the embedded deductible was never triggered, but would still be a qualified HDHP.

Additionally, there are separate ACA rules to consider. The ACA OOP max for 2019 is $7,900 for individual coverage and $15,800 for family (for 2019). Non-grandfathered plans must have embedded individual max OOPs with family coverage. HHS guidance confirms that the ACA’s self-only annual cost-sharing limit acts as an embedded limit when an HDHP provides coverage other than self-only coverage (that is, family HDHP coverage). In other words, if an individual stays in-network, then under no circumstances should that individual pay more than $7,900 (in 2019), even if it is non-embedded/aggregate.

Therefore, putting these rules together (the embedded minimum deductible under QHDHP and embedded max OOP under ACA), this could result in an individual embedded maximum OOP being less than the plan’s family deductible. For example, if a carrier says that an individual must meet $10,000 in OOP (to match the family deductible), that design would be out of compliance with the ACA requirement.

So, the embedded OOP for an individual with QHDHP family coverage in 2019 must meet both of these conditions:

  • At least $2,700 (the statutory family deductible for QHDHPs)
  • Equal to or less than $7,900 (the statutory ACA individual max OOP)

As another example, four individuals (A, B, C and D) are enrolled in family coverage with an OOP max of $13,500. A incurs $10,000 in covered expenses, and B, C and D each incur $3,000 in covered expenses. Since the self-only max OOP applies to each person ($7,900 in 2019), A’s cost sharing is limited to $7,900, and the plan has to pay the difference ($10,000 - $7,900). With respect to cost-sharing incurred by all four individuals, the aggregate is limited to $13,500, so the plan has to pay the difference ($7900 + $3000 + $3000 + $3000 = $16,900), which is $16,900 - $13,500 ($3,400).

October 30, 2018

For companies under common ownership, is there a requirement to offer only one plan to the different companies, or can the different companies sponsor their own separate plans?

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Companies under common control are considered a ‘single employer’ for purposes of ERISA, the Internal Revenue Code (IRC) and for benefit offerings. That means one plan can be offered to the employees of all of the companies under common control. That said, there’s no requirement to offer the same plan to employees of all the commonly-controlled companies. It’s really up to the companies—and perhaps the parent company, if there is one—to decide how to offer benefits among the different companies. However, there are several compliance considerations.

First, the group of employers needs to consider the ACA’s employer mandate. All employees of all companies under common control must be included in the full-time employee/equivalent count in determining if the mandate applies. This means a smaller company that’s owned by a larger company may be subject to the mandate, even though on their own they may have fewer than 50 full-time employees/equivalents. In addition, the plans offered to full-time employees for all members of the controlled group would need to meet the minimum value and affordability standards under the mandate. Otherwise, the employer may be risking mandate penalties. Also, while each member of the controlled group is separately liable for such penalties, the group could come together and have one company offer the plan and perform reporting on behalf of the other controlled group members. But whatever the approach, the commonly-held companies would need to review their compliance obligations under the employer mandate.

Second, careful review of controlled group status should be made to avoid multiple employer welfare arrangement (MEWA) status. A MEWA is a plan that covers the employees of two or more separate (non-controlled group) companies. While MEWA status isn’t necessarily prohibited, it brings additional (and in some instances onerous) compliance obligations (such as Form M-1 filings and state requirements). Employers should ensure there’s sufficient common ownership before offering a single plan to companies within a controlled group in order to avoid additional MEWA obligations.

Third, if the group of commonly-owned companies offers different plans to different companies, there may be nondiscrimination testing required. The nondiscrimination rules prohibit a plan design that somehow favors highly compensated individuals (HCIs). There are two sets of rules that may apply: IRC Section 105 (if one of the offerings is self-insured) and IRC Section 125 (if employees can pay their portion of the premium pre-tax through salary reduction). While employers can vary plans (and employer contributions, among other things) by company (that is to say, different tax ID numbers/business lines within a controlled group), the result must not favor HCIs (which could happen if one of the companies had a much richer plan in place and that company had a disproportionate number of HCIs as compared to non-HCIs).

Fourth, whether the group offers one or multiple plans, arrangements should be outlined in related plan documents. Employers as plan sponsors have the ERISA obligation to create written plan documents and SPDs, and those should describe which company is sponsoring the plan and which companies’ employees are eligible to participate. So, after deciding to offer one plan versus multiple plans, the group should appropriately and sufficiently document their arrangements and offerings. They will also have to comply accordingly with other ERISA obligations (such as the Form 5500 and SAR reports).

Finally, the group of employers should work with outside counsel in running through the different considerations. Not only is the determination of actual controlled group status a tax and legal issue, but it also has consequences beyond benefits (primarily, employment tax and labor/employment law issues). Outside counsel would be in the best position to access and understand all of the facts and circumstances, and to advise the group of companies accordingly.

October 16, 2018

When an employee takes sick leave that isn’t covered under FMLA, how long must the employer allow the employee to stay on the health plan?

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When FMLA isn’t an issue – either because the employer isn’t subject to it or because the employee isn’t eligible – there is no federal requirement to continue an employee’s health benefits while the employee is out on the non-FMLA leave. However, sometimes there are state laws that will mandate certain leave be provided, and require that health coverage be continued.

Generally, insurance contracts include “actively at work” policies that stipulate how long an employee can be on non-FMLA leave before they becomes ineligible for health coverage. Many insurance contracts make employees ineligible for coverage once they have been out on non-FMLA leave for a period of 30 days or more. The employer should keep that in mind for these employees as well, because the employees’ coverage could be limited by the eligibility terms of the insurance contract (or self-insured plan document).

If the insurance contract and plan document don’t include such an “actively at work” clause, then the employer should review their policies to be consistent with what’s provided to employees on other types of unpaid leave. For example, if benefits continue for employees on sabbatical or personal leaves of absence, then the employer would probably want to do the same thing with employees who take non-FMLA medical leave. This is especially the case if the employee is taking leave due to a disability. The employer wouldn’t want to be at risk of violating the Americans with Disabilities Act or HIPAA’s nondiscrimination rules related to medical conditions and disability.

The employer should also consider any state or local requirements to continue coverage. While many states don’t give any additional protection outside of FMLA, other states do.

Finally, an employer who ceases to offer coverage to an employee taking leave should be sure to offer COBRA when the employee’s coverage is terminated (assuming the employer is subject to COBRA). Since the employee would be experiencing a reduction in hours and a loss of coverage, they would be eligible for COBRA. As such, the employer would need to send the employee a COBRA election notice once their coverage was terminated. This would give the employee the opportunity to elect COBRA for the maximum coverage period.

October 3, 2018

How should we maintain group health plan documentation? How long are we required to keep group health plan documents?

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In general, when maintaining group health plan records, an employer must consider ERISA, HIPAA and ACA guidelines.

The recommendation is to maintain ERISA related documents for eight years. Based upon DOL rulings and statute, records required to be maintained under ERISA include vouchers, worksheets, receipts, and applicable resolutions, claims records, plan documents, summary plan descriptions, copies of filed Form 5500s and Schedules, accountants' reports, enrollment materials, requests for reimbursement for health FSA plans, lists of covered employees, and records of payroll deductions. The ERISA retention period for group health plans is six years and is measured from the date of filing a Form 5500. Because Form 5500 is often filed many months after the end of the plan year, the six year retention period is actually closer to seven years when measured from the end of a plan year. When adding in the possibility of a filing extension, many group health plans use eight years as a rule of thumb for ERISA document retention.

Many items may be able to be kept electronically rather than in paper form. According to DOL regulations, records may be maintained electronically if the electronic recordkeeping system meets certain requirements:

  • The system must have reasonable controls to ensure the integrity, accuracy, authenticity and reliability of the records — and should not allow the modification of documents.
  • The system must maintain the records in a reasonable order. (It should have some type of filing system so the records could be retrieved or inspected as necessary.)
  • The system must maintain the records in a safe manner and should be backed up properly.
  • The system needs to be able to print a readily legible paper copy of the documents.

With regard to HIPAA, covered entities and business associates must retain documentation for the privacy rule for six years from the date the documentation is created or the date it was last in effect, whichever is later. The documentation under the privacy rule includes any action, activity or designation that the privacy rule requires to be documented. Group health plan brokers and employers of fully-insured plans are generally considered to be business associates.

If the documents include protected health information (PHI), HIPAA requires that the information be safeguarded. Any PHI should be kept in files separate from the personnel or files with expanded staff access. Only those who need the information to perform the duties of their job should be granted access.

The PCOR fee is considered an excise tax under the Internal Revenue Code. As such, the Form 720 instructions indicates that tax returns, records, and supporting documentation must be maintained for at least four years from the date the tax became due, the date the claim was filed, or the date the tax was paid, whichever was later. However, with respect to the documents and records substantiating the enrollment count that was reported, those records must be maintained for at least 10 years. The IRS generally accepts electronic records. However, they retain the right to examine any books, papers or records which may be relevant to a filing.

With regard to the employer mandate, this isn’t specifically addressed in the regulations or instructions, but it appears that the same IRS rule that applies to the PCOR filing may also apply here. In other words, records regarding enrollment and offers related to the medical plan must generally be kept for four years, and the IRS retains the right to examine books, papers or records relevant to the filing.

Storage and retention of SPDs, enrollment information, claims information and so on would likely fall under ERISA and HIPAA’s requirements to maintain claims records and PHI (and to properly safeguard if documents include PHI). Therefore, the most conservative time frame would be to retain group health plan records for at least eight years measured from the date of filing Form 5500. In other words, an employer would need to retain past documents for at least eight years based upon the date of filing Form 5500. Additionally, retention of PCOR fee filings and employer mandate forms and records likely falls under the IRS’s requirements to maintain records for at least four years, but records substantiating those filings should be kept for at least 10 years.

September 18, 2018

What should employers consider with respect to the Summary Annual Report (SAR)? To whom and how must it be distributed, and when is it due?

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The SAR is an annual summary of the latest Form 5500 for a group health plan. So, a SAR is required only where the plan is subject to Form 5500 filing requirements. If a plan isn’t required to file a Form 5500, then a SAR is not required. Under the DOL SAR regulations, a totally unfunded welfare plan, regardless of size, need not provide SARs (even though large, unfunded welfare must file a Form 5500). In contrast, large insured plans are subject to the SAR requirement. Employers with self-insured plans should work with outside counsel in determining if they are funded because large funded self-insured plans are subject to the SAR requirements. Generally, an unfunded plan means that benefits are paid out of general assets and that no plan assets are maintained. Segregating participant contributions from an employer's general assets could result in plan assets and thus a funded plan.

For those subject to the SAR requirement, the plan administrator must distribute a SAR to all plan participants covered under the plan within nine months of the end of the plan year. The SAR is only required to be distributed to plan participants who are enrolled at the time of the SAR distribution. For this purpose, a participant is defined as an employee or former employee (e.g., retiree, COBRA beneficiary) who’s actually enrolled on the plan — not terminated employees who are no longer covered. Also, it doesn’t include the participant’s beneficiaries (spouses or dependents).

SARs must be distributed two months after the Form 5500 filing deadline. For calendar year plans with a July 31 Form 5500 deadline, the SAR must be distributed by Sept. 30, which is fast approaching. If an extension of time to file the Form 5500 was granted, then the SAR deadline is two months after the extension date.

As far as the distribution method, mail is always an acceptable form of delivery. Email is also generally acceptable, so long as the DOL safe harbor on electronic distribution is followed. Essentially, employees must have computer access (e.g., a work email or a work computer station) as an integral part of their job, or they must give permission to receive communications at a separate email address. The employee also needs to have the ability to receive a hard copy of the SAR without additional cost. Employers using email delivery should use return-receipt features to maintain proof of delivery.

Lastly, the SAR can’t simply be posted on a company internal website; the employer must also send an email explaining what the document is, the importance of the document, where it can be located on the internal website, and the right for the employee to request a paper copy (and how to make that request).

September 5, 2018

If an employee experiences a qualifying event, do they have the right to switch benefit plan options (for example, from HMO to HDHP)?

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The answer depends upon which qualifying event is involved, but yes, the employee has the right to switch benefit plan options under certain circumstances.

As a reminder, when an employer offers coverage through a Section 125 cafeteria plan, employee elections cannot be changed mid-year without a permissible qualifying event. It’s called the irrevocable coverage rule and applies any time employees contribute to the cost of health coverage on a pre-tax basis with salary reductions. There are two types of qualifying events: HIPAA Special Enrollment Rights (SER) and the optional Section 125 qualifying events.

The HIPAA SER events are:

  • Birth
  • Adoption
  • Marriage
  • Loss of eligibility for other group coverage
  • Loss of Medicaid or CHIP
  • Gain of eligibility for Medicaid or CHIP premium assistance program

Employees currently enrolled in the group medical plan who experience a HIPAA SER have the right to switch benefit plan options. For example, if an employee is enrolled in HDHP single coverage and gets married, they have the right to add the spouse and switch to a different medical plan option (such as an HMO plan). This is an entitlement under HIPAA. Neither the employer nor the insurer may deny the employee the right to switch plans under these circumstances.

Please note that the HIPAA SER rules don’t apply to stand alone dental or vision plans, which are generally excepted from HIPAA portability governance.

The second type of qualifying events are the optional events under Section 125:

  • Change in status (employment, marital status, number of dependents, residence)*
  • Change in cost (significant* and insignificant)
  • Significant coverage curtailment*
  • Addition or significant improvement of benefits package option*
  • Change in coverage under other employer plan
  • Loss of coverage sponsored by governmental or educational institution
  • Certain judgments, orders or decrees
  • Medicare or Medicaid entitlement
  • FMLA leaves of absence
  • Reduction of hours without loss of eligibility
  • Exchange enrollment

These events are optional for both an employer and an insurer. If an employer intends to permit mid-year election changes based on these events, their written Section 125 Plan Document would need to provide for such and the insurer’s policy would need to be in agreement. Those events identified with an asterisk allow for an employee to switch benefit plan options (including not only medical, but also dental and vision) based on the employer and insurer election rules. Where there’s overlap between the HIPAA SER and optional Section 125 rules (for example, between the HIPAA SER event of marriage and the Section 125 event of change in marital status), remember that the HIPAA SER events along with the right to switch medical plan options are an entitlement to an eligible employee and cannot be denied by employer or insurer practice.

Lastly, remember that employers must operate the plan in accordance with the Section 125 rules and their written Section 125 Plan Document. Allowing employee election changes outside of those guidelines would put the employer at risk for disqualification of the plan’s tax status. On the other hand, denying an employee a HIPAA SER could result in DOL enforcement, an IRS excise tax penalty or legal action against the plan.

August 21, 2018

What is IRS Letter 5699, and what are the penalties for not filing appropriate reports (Forms 1094-C and 1095-C) with the IRS?

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Some employers have been receiving IRS Letter 5699, which is a letter from the IRS inquiring about an employer’s informational reporting forms (Forms 1094-C and 1095-C), which may have been due in past years. As background, under the employer mandate and the related reporting, applicable large employers (ALEs—those with 50 or more full time employees, including equivalents) are required to identify and offer affordable coverage to all full time employees (those working 30 hours or more per week) and to file Forms 1094-C and 1095-C (which detail the offer of coverage) with the IRS. ALEs were generally required to offer coverage beginning in 2015, and are required to file informational reporting forms regarding the prior year’s compliance (that is, file reports in 2016 reporting on 2015 compliance, in 2017 reporting on 2016 compliance, and so on).

The IRS sends Letter 5699 to employers that may have failed to submit their informational reports. In other words, if the IRS doesn’t have a record of a company’s Forms 1094-C and 1095-C, and the IRS believes the company should have submitted those reports, the IRS could send Letter 5699 to that company. Letter 5699 identifies the year of the alleged failed reporting, and provides the employer with five options for responding. Specifically, employers who receive this letter can:

  1. Acknowledge they were an ALE for the year indicated, and that they actually did file the appropriate forms (and identify the date and employer EIN used to file).
  2. Acknowledge they were an ALE for the year indicated, but that they didn’t file appropriately or on time for the year. The employer would also include in their response the appropriate forms and explain the reasons for the late filing.
  3. Acknowledge ALE status and promise to report within 90 days of the letter (and explain the reasons for the late filing).
  4. Claim they were not an ALE for the year in question.
  5. Categorize their response as “Other,” which is a catch-all option for the employer to explain why they didn’t file and any actions they plan to take to fix the failure.

The letter reminds the employer that there are penalties for failing to file the appropriate informational returns. Although the letter does not list specific penalty amounts, the IRS has previously indicated that the penalty amount for tax filings made in 2017 or after is $260 for each return to which a failure relates (capped at $3,218,500 — although there’s a lower cap for employers with $5 million or less in annual gross receipts). For failures in 2016, the penalty is $250 (with a $3 million cap). Keep in mind that the failure to provide a form to the IRS and to a given participant is considered two separate failures.

Employers that receive IRS Letter 5699 should review the letter closely and review their filing for the year indicated in the letter. Employers are required to respond to the letter within 30 days. The first page of the letter contains IRS contact information and employers should reach out to that IRS contact to let them know they’ve received the letter and are working towards its resolution. After reviewing and assessing whether the filings were made in the year in question, the employer should check the box relating to their response (under one of the five options above). The employer may also need to provide an explanation of the situation or the reasons for the failure, as well as any corrective action they plan on taking. Working directly with the IRS agent, the employer may also want to attach additional documentation or substantiation relating to the informational reports. If the employer has specific questions or needs exact advice, they should work with outside counsel.

August 7, 2018

What is the General Data Protection Regulation (GDPR)? To whom does it apply and what does it require?

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The General Data Protection Regulation (GDPR) is a law adopted in the European Union (EU) which took effect on May 25, 2018. GDPR seeks to protect the personal data of EU data subjects (citizens and residents) and affords privacy protection for such individuals. The regulation broadly defines personal data as any information that relates to an identifiable, living human being, which can include the person’s name, address, phone number, location, health records, income and banking information, etc. Essentially, if one can use the data to identify a person in any way, it is likely personal data that would render an entity receiving that data subject to the law.

Specifically, the law imposes requirements on entities that collect, use and process personal data of EU data subjects. Since the law does not limit its scope to EU-based companies, companies all over the world that employ individuals in the EU, offer goods and services to individuals in the EU, or track or profile individuals in the EU are impacted by this regulation.

The GDPR also recognizes two different roles that determine an entity’s responsibilities under the regulation – data controllers and data processors. Data controllers determine the purpose and means of processing personal data. Data processors process the data on behalf of the data controller. As an example, a US-based company with EU employees would likely be a data controller since as an employer it collects personal data on those EU employees for business/employment purposes. That same company with EU employees might contract with a health and welfare broker who takes some of that personal data and processes it to enroll the employees in the company’s health plan. The broker would likely be a data processor in this instance, as they are processing that information on behalf of a data controller (i.e., the employer company).

If an entity is a data controller, then they are subject to the GDPR’s requirement that data processing be fair and transparent, for a specified and legitimate purpose, and limited to the data needed to fulfill that processing purpose. The regulation also gives specific legal grounds under which a controller can process personal data, including if the person gives his/her consent, if there is a contractual or legal obligation, if doing so will protect the vital interests of the person, or if it is to carry out a task that is in the public interest or in the company’s legitimate interest. Keep in mind, though, that the regulation makes it clear that an individual’s right to their personal data will often trump the business’ interests.

Even if a company has the legal grounds to process certain personal data, they are still obligated to protect the individuals whose data they possess. Specifically, companies must:

  • Provide individuals with information on who is processing their data and why;
  • Provide individuals with access to their personal data when requested;
  • Erase an individual’s personal data when requested (under certain circumstances); and
  • Correct incorrect information or complete incomplete information when necessary or stop processing that data if the individual objects.

Data controllers are also required to ensure that any data processor they use offers sufficient privacy and data protection guarantees through a written contract between the controller and processor. This contract must specify, among other things, that the data processor will only process data as directed by the controller.

Ultimately, this regulation is aimed at allowing EU data subjects more rights and control over their personal data in an increasingly technological world. Keep in mind, though, that this regulation is much more detailed and complex than what we can summarily provide in this FAQ. The potential fines and costs associated with noncompliance of this regulation can be significant, up to twenty million euros or 4 percent of an entity’s worldwide revenue (in addition to any court proceedings or damage to an entity’s reputation). As such, companies that feel they might be subject to the GDPR should work with legal counsel to review and assess compliance with the regulation.

About the GDPR »
GDPR Fact Sheet »

July 24, 2018

We offer employees rewards for completing biometric screenings and health risk assessments. If the EEOC’s wellness program regulations are vacated, how will this affect our programs and incentives?

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As background, employer wellness programs involving a disability-related inquiry (e.g., a health risk assessment) or a medical examination (e.g., a biometric screening) are limited to a 30 percent wellness reward under the EEOC’s final wellness rules. A financial incentive may be provided to individuals who voluntarily provide genetic information as long as certain requirements are met. Additionally, a notice must be provided to participants prior to the inquiry or examination. Pursuant to the judge’s decision in AARP v. EEOC, those rules would be vacated effective 2019, if the EEOC fails to finalize new regulations in 2018. (We discussed that ruling in the Jan. 9, 2018 edition of Compliance Corner.)

Specifically, this means that if the EEOC doesn’t reissue their regulations by Jan. 1, 2019, then the 30 percent inducement might no longer be permitted. If this happens, then it’s presumed that things would revert back to the ambiguous language of the EEOC’s requirement that a plan be voluntary if it offers an incentive. Thus, an employer with a 30 percent inducement under the HIPAA wellness rules with a health screening or disability inquiry could be in violation of the EEOC’s previous guidance.

In addition, if the EEOC doesn’t issue new rules, this impacts the ability to have a spouse complete a health risk assessment. This information is generally considered genetic information, but there was a specific exception in the EEOC GINA rules that allowed for it as long as it was up to 30 percent, only considered the spouse’s previous or current manifestation of a condition and the reward/inducement was separate from the employee’s reward. This is another part of the inducement rule that would be vacated. In other words, employers likely couldn’t provide a reward for a spouse’s completion of a health risk assessment.

However, this is all still speculation. We don’t know if the EEOC is going to promulgate new rules or impose some type of non-enforcement policy on plans that rely on their rules after Jan. 1, 2019. For now, nothing has changed, and the EEOC’s rules remain in place. We’ll report any updates in Compliance Corner and other resources as soon as the EEOC issues new rules or if the rules do become vacated. Also, it’s unlikely that there wouldn’t be some type of transition relief for any plans to come into compliance (in other words, we don’t believe the rules would be vacated automatically, making everyone offering this type of program out of compliance on Jan. 1, 2019).

It’s ultimately up to employers to determine how they’ll proceed in light of the EEOC rules possibly becoming vacated. Some may choose to rely on the EEOC’s rule in the future (especially when you consider the 30 percent reward allowed under HIPAA wellness program regulations). Others may instead choose to take a more conservative route and not offer any incentive to provide disability-related information. Either way, we could not advise on a specific course of action due to lack of guidance and would recommend employers discuss the issue with outside counsel.

July 10, 2018

With the PCOR fee due date around the corner, can we get a refresher on the employer obligations?

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Due Date
The PCOR fee is due Tuesday, July 31, 2018, for all plan years that ended in 2017. The fee is generally due on July 31 of the year following the plan year end date. Please keep in mind that the PCOR fee applies to plan years ending on or after Oct. 1, 2012, and before Oct. 1, 2019. So, the end of the PCOR fee era is near.

Insurers are generally responsible for the PCOR fee payment and filing for fully insured plans; whereas the employer is generally responsible for the PCOR fee payment and filing for self-insured plans. Special rules apply for determining who is responsible in the situation of an association plan, MEWA or VEBA. The IRS has a helpful chart to remind employers which types of plans are subject to the fee. The requirement to pay the fee will remain in place until the plan years ending before Oct. 1, 2019.

Fee Calculation
The general rule is that the PCOR fee is based on the average number of covered lives during the plan year. Importantly, this includes not only employees, but also dependents (spouses, children and others) as well as former employees still receiving coverage under the plan (former employees on disability who are still covered, retirees, COBRA participants, etc.). The IRS allows employers to use any one of four methods for calculating lives, as described below:

  1. Actual Count Method: Calculate the sum of the lives covered for each day of the plan year and divide that sum by the number of days in the plan year.
  2. Snapshot Method: Add the total number of lives covered on any date (or more dates, if an equal number of dates are used for each quarter) during the same corresponding month in each of the four quarters of the benefit year (provided that the date used for the second, third and fourth quarters must fall within the same week of the quarter as the corresponding date used for the first quarter). Divide that total by the number of dates on which a count was made.
  3. Snapshot Factor Method: The calculation is the same as the snapshot method, except that the number of lives covered on a date is calculated by adding the number of participants with self-only coverage on the date to the product of the number of participants with coverage other than self-only coverage on the date and a factor of 2.35. For this purpose, the same months must be used for each quarter (for example, January, April, July and October).
  4. Form 5500 Method: The plan may use the data reported on the most recent Form 5500. A plan may only use this method if it filed the Form 5500 by July 31. A plan filing an extension for the Form 5500 would have to use another calculation method. If a plan covers only employees, then the plan sponsor would add the number of participants at the beginning of the plan year and at the end of the plan year and divide by two. If the plan covers dependents, the plan sponsor would add the number of participants reported for the beginning of the plan year and the number of participants at the end of the plan year, and report this total.

Employers may switch methods from one year to the next, and should calculate the average number of lives under all four methods and choose the one that is most favorable. For example, a plan that has many covered dependents (employees generally cover three or more dependents) may find that the snapshot factor method is advantageous, since it allows employers to disregard actual dependent count and instead assume 2.35 lives per covered employee. Similarly, if the employer hires more individuals at the end of quarters, the snapshot method may allow an employer to use a date early in each quarter to make a count, which may be advantageous.

The PCOR fee is filed and paid via IRS Form 720, Quarterly Federal Excise Tax Return. The PCOR fee is reported in Part II of that form, which also includes the amount of the fee (based on when in 2017 the plan year ended). Employers should work with their advisors and tax advisers in ensuring proper filing and payment of the fee.

The PCOR fee is treated as a tax. As such, it is generally assessed, collected and enforced in the same manner by the IRS as other taxes. We know of no amnesty or leniency for noncompliance with the PCOR fee filing.

Specifically, the fee is found in the excise tax portion of the IRC, and since the fee is reported on IRS Form 720, there are general penalties that apply for failure to file a return or pay a tax. Those are found in IRC Section 6651 and the penalties vary based on the amount failed to be reported or paid.

The general penalty would be up to 25 percent for a failure that is beyond five months. Like any other tax payment failures, there is also the risk of interest on top of the required amount. There are additional penalties if the failure was due to willful neglect, which means that the employer knew about the requirement but did nothing about it. So, there is definitely a risk involved with not filing and paying the PCOR.

There is no specific guidance on how to correct a failure. Ultimately the employer will want to consult their tax advisor as soon as the problem has been identified. However, as with other tax form and payment failures, it seems prudent and appropriate to come into compliance as soon as possible. Most likely, the employer could start by filing a Form 720 for past years as soon as possible. Generally speaking, the employer needs to file a separate Form 720 for each year, but could file multiple at the same time. Ideally, the employer should consult their tax adviser for advice on precisely how to proceed.

Here are some helpful IRS links:

IRS PCOR Fee Landing Page »
IRS Form 720 »
IRS Form 720 Instructions »

June 26, 2018

What are the latest enforcement efforts of the IRS in regard to the employer mandate and reporting requirements?

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As a reminder, the employer mandate (also known as the employer shared responsibility) only applies to employers with 50 or more full-time employees, including full-time equivalents (FTEs).

In November 2017, the IRS began enforcement of the employer mandate. Their efforts thus far have focused only on calendar year 2015. In 2015, most small employers with 50 to 99 FTEs qualified for transition relief. This transition relief exempted them from employer mandate penalties for that year, but they were still required to comply with Section 6056 reporting (Forms 1094-C and 1095-C).

The method of enforcement used by the IRS involves issuing a Letter 226J to the employer. The letter will identify the total assessment that the IRS believes the employer owes, the reasoning for the assessment, including a listing of the employees who received a premium tax credit, and instructions for appealing the assessment.

To our knowledge, the first round of letters sent by the IRS assessed Penalty A for failure to offer minimum essential coverage (MEC) to substantially all full-time employees (70 percent in 2015). Almost all of the letters we’ve seen were due to a reporting mistake rather than actual failure to comply with the employer mandate. In other words, the employer indeed offered MEC to substantially all full-time employees, but their Form 1094-C didn’t indicate that fact. Specifically, column (a) of the Form 1094-C was incorrectly marked “No” in response to whether they offered MEC to full-time employees.

The most recent letters we’ve seen seem to assess Penalty B for an employer’s failure to offer minimum value, affordable coverage to specific employees who received a premium tax credit. Again, the penalties are generally due to erroneous reporting. A common scenario is that the employee was indeed not offered coverage, but the employer had a valid reason for not offering it. For example, the employee was in an initial measurement period, part-time or not employed for that month. The employer entered 1H on line 14 of the Form 1095-C, but failed to claim the correct safe harbor code on Line 16.

In most cases, the IRS has been cooperative with employers. They have advised employers as to what documentation is necessary to eliminate or reduce the penalty assessment. In some cases, the IRS representative granted a 30-day extension to give the employer more time to respond and gather documentation.

The letters are still being sent out on a regular basis. We saw several employer letters just last week. So, just because you haven’t seen one yet doesn’t mean you’re in the clear. And remember, so far, they’ve only focused on 2015. We haven’t seen any enforcement action related to 2016 or 2017 yet. However, several IRS representatives have told employers that if the employer has knowledge that their 2016 or 2017 Forms 1095-C or 1094-C are incorrect, they encourage them to file a correction as soon as possible.

For now, the employer mandate is still in effect with no immediate changes expected. Large employers should continue to offer minimum value, affordable coverage to full-time employees. And just as important as the offer, an employer must have records documenting the offer, the cost of coverage for affordability purposes, and employee hours. An employer just might need these records to successfully appeal a potential assessment from the IRS.

June 12, 2018

Carriers have been making adjustments to past years' MLR rebates, which in some instances have resulted in additional MLR rebate checks to employers. What are those employers' responsibilities with regard to the additional MLR rebate amounts? Must they distribute those out to current and/or past participants, or is there some type of de minimis exception?

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Generally, employers will have to decide how to handle an adjusted MLR rebate check received from an insurance carrier. This can be somewhat confusing for employers, since the adjustments generally relate to prior years. Overall, though, the employer's MLR rebate distribution responsibilities hinge on whether there's a portion of the rebate that's attributable to employee contributions (which makes them “plan assets,” a status that places some stricter rules on whether and how they should be refunded to employees).

If the entire rebate is attributable to employer contributions (e.g., the employer contributed 100 percent of the premium), then the employer can generally keep the rebate. If, however, employees contributed toward the cost of coverage, the portion of the MLR rebate that's attributable to employee contributions is considered plan assets, meaning it must be used in a way that benefits those employees/participants.

There are basically three ways an employer can use the plan assets portion of the MLR rebate to benefit employees/participants: providing a taxable cash refund, allowing a premium reduction (sometimes called a “premium holiday”), or adding some type of benefit enhancement (such as coverage for an additional service, an additional contribution to an HRA or something similar) to the overall plan design. Most employers settle on using a cash refund or premium holiday to benefit participants. One reason is that the MLR rules require the rebate to be used within 90 days and only on behalf of that specific plan's participants. So, for example, the amount couldn't be used to provide a wellness program that benefits all employees. If the employer instead chooses a premium reduction, the employer could limit the distribution to only those who are currently participating in the plan. Further, the employer could limit the distribution to only those who are participating now AND were also participating in that same plan in the relevant year.

With regard to former participants, the DOL provides employers a bit of flexibility. Since a benefit enhancement or premium holiday wouldn't help a former participant, the only method that would be appropriate for former participants is a cash refund. If the cost of distributing rebates to former participants is approximately equal to or greater than the amount of the rebate, then the employer may decide to limit rebates to current participants. It's unclear what can be taken into consideration in determining cost. While it may include the time to track down individuals, the more conservative approach is that the employer should look only at “hard” costs (e.g., postage, cost of having check cut, locator fees, etc.). Ultimately, since the employer is the fiduciary of the plan assets, they'll have to decide the overall cost-effectiveness of distributing to former participants (but couldn't do the same for current participants).

In addition, there isn't a de minimis threshold. The only consideration is the one outlined above regarding the cost of including former employees compared to the distribution amount. The proportionate amount related to plan assets must be distributed to current participants even if it's a small amount.

Lastly, there's one exception to the general rule that plan assets must be distributed to participants in one of the three ways outlined above. Specifically, if the employer placed specific language in the plan document to retain the rebate amount (which is extremely rare), it's possible they could retain it. Employers relying on that exception should work with outside counsel to ensure compliance with the MLR rules in that situation.

In summary, if employees originally contributed towards the cost of coverage, an employer couldn't keep the entirety of an adjusted MLR rebate. This is because a portion of the rebate is attributable to plan assets and must be handled accordingly. If the rebate is an insignificant amount, the employer may be able to exclude former participants, but it would be required to include current participants in one of the three distribution methods outlined above.

May 30, 2018

Must we continue to offer health coverage to employees who take leave to serve in the U.S. armed forces?

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The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain protections for employees who must be absent from work due to uniformed service. These protections include re-employment rights, protection from discrimination and the right to the continuation of group health coverage.

Specifically, when an employee is absent due to uniformed service, the employer must satisfy USERAA obligations for continuation of group health coverage with respect to that employee. Namely, an employee who is absent from work due to uniformed service is entitled to continue his/her group health coverage for a period of 24 months.

If the leave of absence is to be 30 days or less, the employer should pay its normal share of premiums. If the leave of absence is expected to be 31 days or more, the employer isn't required to pay its normal share of premiums (not even for the first 30 days). However, the applicable premium cannot be more than 102 percent of the normal cost of coverage.

If the employer is also subject to COBRA, then a leave of absence to serve in the armed forces would likely also be considered a COBRA triggering event. So, when an employee leaves for deployment, the employer should offer the employee continued coverage under USERRA and COBRA. To that end, the COBRA election notice can be modified to include USERRA language.

Also keep in mind that if the employee returns and is rehired after his or her service, USERRA requires that the employer allow the employee to re-enter the group health plan. This is true whether the employee continued coverage under COBRA or USERRA or not.

May 15, 2018

Can an employee have an FSA and an HSA in the same calendar year?

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HSA eligibility is determined on a monthly basis and not on a plan year or calendar year basis. An individual is only allowed to establish and contribute to an HSA if they’re enrolled in a qualified HDHP and have no other disqualifying coverage (e.g., general purpose health FSA or HRA, copay-type medical plan, Medicare, TRICARE, etc.) for that same month. For example, if an employee enrolls in a general purpose FSA or a copay-type medical plan, the individual wouldn’t be eligible to make contributions into an HSA for that same month or for any other months while still enrolled in disqualifying coverage.

However, health FSA elections are generally irrevocable for the full plan year unless there’s a qualifying life event that would allow the employee’s FSA election to be revoked. So, if an employee enrolls in an FSA as of Jan. 1, for example, the individual couldn’t also establish or contribute to an HSA while enrolled in the FSA and couldn’t decide to change their FSA election later without experiencing a qualifying event. However, an employee could wait until open enrollment to waive health FSA participation and contribute to the HSA after the end of the FSA plan year.

Lastly, an individual is generally responsible for IRS compliance with an HSA because they’re the account holder. However, if the employer sponsors an HSA and HDHP, then they also have a responsibility to determine whether individuals’ HSA contributions are excludable from income. IRS guidance says that the employer who sponsors the non-HDHP coverage has the responsibility to confirm that an employee is covered under the HDHP and isn’t covered under any other disqualifying coverage sponsored by that employer if an employee is contributing to an HSA. In other words, if an employer sponsors a health FSA, they have an obligation to make sure employees are actually eligible to make HSA contributions if they offer an HSA and HDHP (including any employer HSA contributions).

Thus, once non-HDHP coverage ends and an individual enrolls in a qualified HDHP, even if it’s in the same calendar year or plan year, they could generally contribute to an HSA for the remaining months. Importantly, though, employers must keep in mind their responsibly to determine whether an employee’s HSA contributions are excludable from income and clearly communicate HSA-eligibility to employees.

May 1, 2018

Who’s eligible to participate in an HRA, and for whom can HRA reimbursements be used?

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Generally speaking, employees and former employees may participate in an HRA. If the HRA is a general-purpose HRA for active employees, the ACA requires that the HRA be integrated with group health coverage. Very generally, “integrated” means that the HRA covers expenses relating to the group coverage (i.e., deductibles, co-insurance, etc.). The participating employees must be enrolled in a group health plan (either directly through the employer or through outside coverage, such as through a spouse’s employer). If the HRA is a limited-purpose (reimburses only dental and/or vision expenses) or a stand-alone retiree-only HRA, it isn’t subject to the ACA (and therefore doesn’t have to be integrated with group coverage). So, an employer could make all former employees eligible for a retiree-only HRA (even if they didn’t have group coverage).

Because HRAs are only for employees or former employees, self-employed individuals are generally not eligible to participate in an HRA. A self-employed individual includes a sole proprietor, partner in a partnership (sometimes also called a “K-1 earner”) and a more-than-2% S corporation shareholder. For LLCs, if the LLC is taxed as a partnership, the owners will generally be considered self-employed. On the other hand, if the LLC is taxed as a corporation, and for C corporation owners, the owner may participate as long as they are otherwise treated as an employee (i.e., receive W2 income).

As for distributions from the HRA, employees and former employees may use HRA funds to pay or reimburse medical expenses of their federal tax dependents. That generally includes a spouse and a child (step/adopted child included). Expenses for children can be reimbursed up until the end of the year in which the child turns age 26, regardless of whether the child is a tax dependent of the employee. A “child” may also include an eligible foster child (one placed by an authorized agency or by judgment or other decree/order of a court). An employee may use HRA funds for a domestic partner’s expenses only if the domestic partner is the federal tax dependent of the employee.

Employers are generally free to determine eligibility and restrict distributions to certain expense types (such as a dental/vision-only HRA) as they see fit. Because an HRA is considered self-insured and therefore subject to the Section 105 nondiscrimination rules, employers shouldn’t favor their more highly compensated individuals (such as a management or executive group) in their HRA eligibility and benefit/reimbursement design. Beyond that, employers should document eligibility and plan design in the related plan documents and communicate them to employees.

Please ask your advisor for a copy of our white paper HRAs and Other Employer Reimbursement Arrangements.

April 17, 2018

Our SPDs are available on our intranet. Does that meet ERISA distribution requirements?

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No. Simply posting the SPDs on your intranet is not enough. Employers must ensure the intended recipients receive the SPDs. For example, merely providing employees with access to a computer in a common area (e.g., a computer kiosk) is not a permissible means to electronically furnish ERISA-required documents.

As background, ERISA requires a plan administrator to obtain written consent prior to electronically delivering ERISA disclosures to beneficiaries and other plan participants who do not have work-related access to a computer. Plan administrators are required to use measures reasonably calculated to ensure actual receipt of the material by plan participants and beneficiaries (e.g., the plan administrator must make use of electronic mail features such as return-receipt or notice that the email was not delivered). The plan must also conduct periodic reviews to confirm receipt of the transmitted information.

In general, the regulations recognize two groups of employees when determining whether electronic distribution is sufficient: those who have electronic access as an integral part of their job and those who don’t. These categories are determined by whether the employee can access electronic documents at a location where they are reasonable expected to perform their job duties.

Importantly, the first group are not just employees with a work email or who have access to a computer station at work (clock-in locations/kiosks included). Instead, they actually have to have the ability to access electronic documents at a location where they normally work. Thus, an employer should consider their workforce and determine which employees (if any) fit into the first category.

So, if an employee does not have access as an integral part of their job, the employee may provide the employer with an email address to send the notices, but the employee must affirmatively give consent to receiving electronic notices before the documents are distributed with that personal email. The email must explain what documents will be provided electronically, that their consent can be withdrawn at any time, procedures for withdrawing consent and changing the email address, the right to request a paper copy of the document and if there is an applicable fee, and what hardware or software would be required. If an employee doesn’t give consent, then the employer should mail them a hard copy or provide it through another verified delivery method.

Further, whenever an email is sent to the employee with the notice (e.g., SPD), the employer must also explain what the notice is, explain the importance of the document, and advise on the ability to access and obtain a paper copy. So there is supplementary language that should be included in the email with the notice the employer should be aware of.

Finally, some notices are not appropriate for electronic disclosure. For example, the COBRA initial and election notices must be sent to covered spouses as well as to covered employees upon enrollment in the plan. Thus, the group should deliver these documents through another verifiable method if not included under the DOL safe harbor.

Please ask your advisor for a copy of our white paper (Required Group Health Plan Notifications for Employees) that describes which documents should be included in the eligibility/enrollment packet, which documents should be distributed upon enrollment, and which documents should be distributed upon termination from the plan. It identifies the required notices that may be provided electronically (indicated by an asterisk). Additionally, to assist with understanding the electronic disclosure requirements, take a look at this helpful chart regarding the DOL’s electronic disclosure safe harbor describing the requirements for certain employee groups to receive (or provide consent to receive) documents electronically.

April 3, 2018

What options do employers have when employees experience pay shortages, where employee wages don’t cover the health insurance premium?

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Employers are often faced with situations that result in employees’ inability to pay insurance premiums. Whether the employee has experienced a reduction in hours, is on unpaid leave, is a tipped employee or must be offered coverage due to being in a stability period under the employer mandate, there are different times that the employee’s wages may not be enough to cover their health insurance premiums.

Unfortunately, the IRS hasn’t provided specific guidance regarding situations where there’s a pay shortage due to employees working fewer hours during certain periods of the year. However, we believe that we can look to the regulations that address how to finance employees’ benefits during FMLA leave for guidance on pay shortages.

These regulations provide three options for handling the contribution obligations of employees who continue group health coverage during an unpaid FMLA leave:

  1. Prepayment with a special salary reduction
  2. Pay-as-you-go on an after-tax basis
  3. Catch-up salary reductions (or after-tax payment) upon return from the leave

Thus, the IRS has indicated that salary reduction elections for group health coverage, at least in the context of FMLA leave, can be accelerated, deferred or paid on an after-tax basis when there is no pay. It seems reasonable to apply similar concepts in the non-FMLA context, as well. Moreover, there’s no requirement that salary reduction contributions be made in equal amounts every pay period. Keep in mind, though, that the plan document should contain language flexible enough to accommodate the employer's method for handling pay shortages.

The first option under the FMLA regulations – prepayment by acceleration of the salary reduction – isn’t likely to be useful unless the pay shortage is predicted, perhaps as in the event of a planned leave or an annual slow time for a commissions-only salesperson. It’s worth noting, however, that the FMLA regulations don’t allow prepayment to be the sole option made available to employees on FMLA leave. Further, the prepayment option cannot be used to pay for benefits in a subsequent plan year.

The second option – pay-as-you-go on an after-tax basis – will only be useful for participants that have additional resources to pay the amount out-of-pocket (like a workers’ comp or disability policy). The employer will also need to notify any such participants of how they will pay the premiums while out. For example, will they direct payment to the employer or the insurer?

The third option – catch-up salary reductions – is most likely to work when the pay shortage is unexpected. This option allows the employer and employee to agree that the employer will advance payment of the premiums and that the employee will pay the employer back upon their return. If it seemed that a given employee was going to go back to working full-time hours, then the catch-up salary reductions may be an option.

However, the risk in allowing catch-up salary reductions is that the employer may not be able to recoup the deferred salary reductions. So an employer permitting this option might consider establishing an outside limit for the deferral (e.g., 30 or 60 days) and then stopping or reducing coverage at the end of the time period if the catch-up salary reduction isn’t made or is insufficient to cover the amount due.

Note that there’s added risk in using this method under a health FSA, because the uniform coverage requirement isn’t suspended.

So, although there’s no specific guidance on what to do when an employee’s paycheck doesn’t cover the health premiums, the employer could explore the options provided for unpaid FMLA leave, as long as the plan document reflects the method that’s chosen. The employer ultimately may also want to seek outside legal counsel on this issue, since the IRS hasn’t provided specific guidance.

March 20, 2018

We have an employee moving from full-time to part-time. Do we need to continue offering benefits?

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An employee who regularly works 30 or more hours per week is considered full-time and, therefore, must be offered health coverage by an employer, subject to the employer mandate. If an employee is reasonably expected to work full-time hours, based on determinative factors such as comparable full-time positions, how it was advertised in a job description, etc., the employee should be offered coverage no later than the first day of the fourth month and shouldn't be placed in a look-back measurement period. In other words, the normal new-hire waiting period would apply and coverage would be effective following the waiting period. However, if an employee's hours vary above and below 30 hours per week and there's no reasonable expectation that they'll always work full-time hours upon hire, they should be placed in a look-back measurement period. Importantly, employees shouldn't be moved back and forth from variable hour to full-time just because they start working more or fewer hours.

If an employer is using the look-back measurement method for variable-hour employees and if the employee was determined to be full-time and eligible for benefits during the defined standard measurement period, the employee should remain eligible through the end of the corresponding stability period, regardless of the number of hours worked during the stability period. In other words, when an employee earns full-time status during the measurement period, their status as an eligible full-time employee is essentially locked in for the entire stability period, even if their hours drop below 30 hours per week. This is true even if the employee's hours drop voluntarily.

In addition, there's an exception that says if an employee transfers to a position that would have been considered part-time if originally hired into that position, the employer can switch to the monthly measurement period starting on the first day of the fourth full month following the month of transfer, However, this only applies if both of these conditions are met: 1) The employee actually averages less than 30 hours/week for the full three calendar months after the transfer and 2) the employer has continuously offered minimum value coverage starting no later than the first day of the month after the employee's first three months of employment through the calendar month in which the transfer occurs. This means the second condition would only apply if the employee was offered minimum value coverage after their first three months of employment. This condition wouldn't apply if the employee were offered coverage after meeting the measurement period. Thus, both conditions listed above would need to be satisfied for this exception to apply. If this exception doesn't apply, the employer would need to offer coverage for the full stability period for which it was determined they were a full-time, eligible employee.

Importantly, though, COBRA must be offered whenever there's a loss of eligibility and a triggering event. The triggering events include reduction of hours, termination of employment, divorce, death of the employee, and child ceasing to be eligible under the terms of the plan. So, if an employee was previously eligible because they averaged 30 hours or more per week and are now ineligible because they didn't average at least 30 hours during the corresponding standard measurement period (i.e., at the end of the stability period), then they've lost eligibility due to reduction of hours. COBRA would then be offered for the plan that the employee (and covered dependents and spouse) had before the COBRA event.

March 6, 2018

What are the most common mistakes employers make when administering FMLA?

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FMLA was enacted on Feb. 5, 1993, which means it celebrated its 25th anniversary last month. Even after all these years, it can still be one of the more complex laws with which an employer needs to comply.

First, it's important to first understand to whom FMLA applies. FMLA applies to governmental agencies and schools (public school boards, public and private elementary and secondary schools) of any size. It also applies to private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year.

Covered employers must post the General Notice in the workplace. Additionally, covered employers must include the language of the notice either in an employer handbook, if available, or as a separate notice distributed to new employees.

It's a common misconception that FMLA only applies to employers with 50 or more employees within a 75-mile radius. The mileage provision is related to which employees are eligible for leave — not which employers are subject to FMLA. This means that all covered employers, discussed above, must comply with the posting requirement regardless of whether they would actually have any employees eligible for FMLA under the mileage provision.

An employee is eligible if they meet all of the following service requirements:

  • Have worked for the employer for at least 12 months
  • Have at least 1,250 hours of service within the last 12 months
  • Work at a location where the employer has at least 50 employees within 75 miles of the employee's worksite

An employee without a specific worksite (such as a salesperson or a telecommuter) is considered to work at the home base from which they are assigned work or to which they report. When determining whether an employee meets the service requirements, it's important for an employer to consider the service time performed for a predecessor employer when there's been a corporate restructure or merger.

An eligible employee is entitled to leave for any the following qualifying reasons:

  • Birth of placement of a child for adoption or foster care
  • To bond with a child up to 1 year following birth or placement
  • To care for the employee's family member who has a serious health condition
  • For the employee's own serious health condition
  • For qualifying exigencies related to the deployment of a military member who is the employee's family member
  • To care for next of kin who is a covered service member with a serious injury or illness

Another common mistake made by employers is failure to recognize an employee's leave for a work-related injury or illness under FMLA. If an employee is absent from work due to their own serious health condition, FMLA applies regardless of whether the injury or illness is work-related.

FMLA is generally unpaid leave. While on leave, though, an employee has the right to continue health plan coverage at the same cost as an active employee. They cannot be charged more than the normal required contribution. If the employee is receiving compensation (such as accrued paid time off), health plan deductions would be taken as normal. However, if the employee isn't receiving compensation, the employer will need to make other arrangements for the employee's contributions. The employee may choose to prepay the contributions if the leave is foreseeable, the employer may require the employee to pay during the leave or the employer may permit the employee to pay upon return.

It's important for the employer to communicate the employer's payment policy as soon as possible upon designating the leave. The combined Notice of Eligibility and Rights and Responsibilities Notice includes language related to payment of contributions. Employers should make sure that the language accurately reflects their policy and procedures. Further, an employee may choose to terminate coverage during the leave and be reinstated upon a timely return.

Finally, there's often confusion as to when health plan coverage would terminate if an employee doesn't return to work within 12 weeks. There are many considerations with this issue. The employer should first determine whether the employee is eligible for continuation of coverage under any other leave entitlement, including state law and employer policy. Next, the employer should review its terms of eligibility in the plan documents. Often the plan document states that employees remain eligible if they work a specified number of hours per week or are on a specific type of leave. Applicable large employers need to also consider their look-back measurement method procedures under the ACA's employer mandate, if applicable. If an employee was determined to be an eligible full-time employee during the most recent measurement period, they'll remain eligible during the entire stability period regardless of current hours worked.

Once the employee no longer meets the terms of eligibility, health plan coverage should be terminated and COBRA offered. A common mistake is that employers continue eligibility for employees who have exhausted all leave and no longer meet the terms of eligibility. This exposes the employer to risk, as an insurer or stop-loss provider may deny claims for the ineligible employee, leaving the employer to possibly self-insure the expense.

The DOL publication entitled "The Employer's Guide to the Family and Medical Leave Act" provides helpful guidance to employers. NFP has an FMLA Checklist, which also may be helpful. Please ask your advisor for a copy.

February 21, 2018

When identifying full-time employees for employer mandate purposes, does an employer include employees from foreign countries?

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To determine size for employer mandate and reporting purposes, an employer would only count the employees (and service hours) of those who receive U.S.-source income. They wouldn’t include hours of service for which the compensation constitutes foreign-source income. So, if the employees were in Canada receiving Canadian compensation (i.e., Canadian payroll and taxes) and not U.S. income, then they aren’t included in the count to determine whether the employee has 50 full-time-equivalent employees. But if a Canadian is working in the U.S. and, thus, receiving U.S.-source income, then that time counts as hours of service for employer mandate and reporting purposes.

This determination is important because, if an employer has more than 50 full-time employees, including equivalents, then the employer mandate applies. Once it’s determined that the mandate does apply, the employer will be evaluated and potentially penalized for not properly following the law. That means the employer becomes responsible for offering coverage, ensuring that it’s affordable and reporting their compliance to the IRS.

To summarize, the regulations state that an “hour of service” doesn’t include any hour for services to the extent the compensation for those services constitutes income from sources outside the U.S. If an employee has U.S. source income, then they would need to be offered coverage and be included in the annual reporting (assuming the employer is subject to the mandate and assuming the employee is working 30 hours or more per week). Finally, this determination of whether the income is U.S. or foreign source needs to be made by the employer’s tax counsel or CPA, since it could be construed as legal and/or tax advice (and since it matters for other reasons, such as employment tax and labor laws).

February 6, 2018

How does the repeal of the ACA's individual mandate impact employer group health plans and employer obligations under the ACA's employer mandate and reporting requirements?

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As a reminder, the ACA’s individual mandate was repealed as part of the 2017 tax reform bill. However, the individual mandate repeal doesn’t take effect until 2019. Therefore, the individual mandate remains in effect for 2018, meaning generally that all U.S. citizens must have health insurance coverage or risk a tax penalty. Beginning in 2019, though, individuals may forego health insurance without risking that tax penalty.

Keep in mind, though, the individual mandate repeal doesn’t impact an employer’s obligation to offer affordable coverage to all full-time employees (and their dependents) under the ACA’s employer mandate. Similarly, the repeal doesn’t impact an employer’s obligation to report to the IRS (and provide forms to employees) under IRC Sections 6055 and 6056 (relating to IRS Forms 1094/95-B and 1094/95-C). So, employers must continue to comply with the employer mandate and reporting requirements (unless Congress makes broader changes in the future).

That said, there are a few bills to watch in Congress in 2018 regarding smaller changes to the employer mandate and reporting. On the employer mandate, a bill has been introduced that would change the definition of “full-time employees” to those that work 40 hours per week (as opposed to the 30 hours per week under current employer mandate rules). On reporting, a bill has been introduced that greatly simplifies and streamlines employer reporting requirements. Nevertheless, both obligations remain in place for now, and employers should continue their compliance efforts to comply with both.

In the meantime, there’s debate on how the individual mandate repeal might impact employer group health plan participation. On the one hand, elimination of the individual mandate penalty tax could reduce enrollment in employer plans if participants opt out (i.e., decide they don’t want or need coverage). On the other hand, the repeal could result in a rise in premium costs in the individual market (as healthy individuals drop coverage), which could increase enrollment in employer plans.

Although it remains to be seen how this will all play out, employers should ensure that they comply with the law as it is currently. For now, that includes continuing to comply with the employer mandate and reporting requirements.

January 23, 2018

If an employer has been a small employer but has recently increased the number of employees, when will the employer become subject to the employer mandate and Section 6056 reporting?

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An employer is subject to the employer mandate and Section 6056 reporting if they have 50 or more full-time employees, including equivalents (FTEs), in the previous calendar year.

To calculate the employer’s size, an employer must first calculate the number of full-time employees for each month of the previous calendar year. A full-time employee is one who works on average at least 30 hours of service per week for a calendar month (or 130 hours per month). Please note that the employees of related employers with common ownership must be included in the calculation. Thus, all employer members of a controlled group would be included in this calculation.

If seasonal employees working less than four months (or 120 days) would cause an employer to have 50 or more FTEs, they may be excluded from the calculation. The four months/120 days need not be consecutive. Any employee working more than four months would not qualify for the seasonal exception and would need to be included in the calculation. An employer may also exclude any employees from the calculation who have coverage under TRICARE or the Veterans Administration. Additionally, any owners that are treated as self-employed individuals (such as partners in a partnership, more than 2-percent S corp shareholders and sole proprietors) are excluded.

Next, the employer will calculate the hours of each non-full-time employee, total them and divide by 120. The employer should not include more than 120 hours of any one individual in this step (because they would be considered a full-time employee and included in the initial step).

Lastly, the employer will add up the number of full-time employees plus the number of full-time equivalents and divide by 12. If the employer has 50 or more FTEs, they are subject to both the employer mandate and Section 6056 reporting for the following calendar year. The employer should not round up. If the employer’s calculation equals 49.9, they are still considered to have fewer than 50 FTEs.

Let’s look at an example. ABC Company has always been a small employer with fewer than 50 employees. In 2017, the company grew and hired many new employees. When completing the above calculation, the employer determines that they had 53 FTEs in 2017. They will be subject to the employer mandate beginning in 2018. They will also be subject to Section 6056 reporting in 2018, with the initial Form 1095-C forms due to employees and the IRS in first quarter 2019. They will not be subject to the reporting due in first quarter 2018.

January 9, 2018

What can an employer do if an employee is HSA-ineligible but has withdrawn contributions? Can the employer attempt to be reimbursed? Are there any tax consequences for either party?

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As background, in order to be eligible to establish and contribute to an HSA, an individual must have qualifying HDHP coverage and must have no 'impermissible' coverage. Impermissible coverage is defined as coverage that pays for medical expenses below the statutory minimum deductible for the HSA--also known as 'first dollar' coverage. Impermissible coverage can include general purpose FSAs, HRAs, Medicare, or telemedicine. This FAQ addresses the corrective options available if an employer or employee discovers that the employee was ineligible for HSA contributions.

First, this employer should seek help from outside tax counsel or their accountant, as the contributions they made could lead to tax consequences. They should also encourage the employee to seek tax advice from an experienced tax preparer. This is because the employee may need to amend their individual tax filings to correct the situation, and they’ll most likely need an expert to assist them with this. Ultimately, all HSA contributions are distributions that must be substantiated by the individual employee with the IRS.

Next, an HSA-ineligible employee won’t be able to take a tax deduction for any contributions attributable to the period of ineligibility. The employee may also be subject to a 6 percent excise tax if the impermissible contributions and any attributable earnings aren’t removed from the employee's HSA within the timeframe allowed for correcting excess contributions (generally, by the tax filing deadline of the year following the impermissible contribution). Employer contributions to employees' HSAs that are made between January 1 and the date for filing the employee's federal income tax return without extensions (i.e., April 15 for most individuals) may be allocated to the prior taxable year. Since HSAs are individual accounts, the corrective action primarily will be on the employee, who will have to correct the issue or answer to the IRS (although in some cases the employee will likely be frustrated with the employer — even though there may have just been a lack of information on the employee’s eligibility status).

If an employer makes contributions to an employee’s HSA when the employer has knowledge that the employee is ineligible, the employer could also be subject to penalties under tax withholding laws, since an employer is authorized to exclude from compensation only those amounts that it reasonably believes an employee will be able to exclude from income. If the employer doesn’t have knowledge of the impermissible coverage, then the employer wouldn’t likely be liable for any penalties. That said, there are some difficulties for the employer in having the mistaken HSA contributions it has made refunded by the employee. This is because HSA contributions aren’t forfeitable, meaning that once a contribution has been made to the employee’s HSA account, the HSA account owner has a non-forfeitable right to receive them.

We then would look to the employer's corrective action. If the employer recognized the mistake and is trying to fix it as quickly as possible, the employer may be able to request a return of the contributions from the trustee or custodian of the account if it happens in the same calendar year (because there’s a non-forfeitable exception in circumstances where the employee was never HSA eligible). Generally, the trustee or custodian can choose whether they want to send money back to the employer or just cure it through a distribution. Some trustees or custodians won’t actually return it to the employer (they treat every contribution as non-forfeitable). But all custodians should allow a curative distribution (which results in a Form 1099-SA).

The above resolution becomes more difficult if the problem has been going on for a while. In these instances, the HSA account balance is frequently depleted and the funds are no longer available. In that case, the only alternative for the employer is to include the contribution amount for the period during which the employee was ineligible as gross income on the employee's W-2, and the employee will be subject to the excise tax as noted above. In some situations, this means the employer may have to file corrected W-2s related to the year the contribution was made, which would necessitate amended filings from the employee as to those years. Again, the affected employee is usually the one who ends up very unhappy in these situations.

In summary, this situation could result in the 6 percent excise tax if HSA funds were spent and the employee (or employer on their behalf) doesn’t repay them. However, the employee could avoid the penalty if any of the following occur:

  • The funds are repaid before the employee’s tax filing deadline
  • The funds are still available (unspent) and are either repaid to the employer or accounted for on employee’s W2 as taxable income
  • The funds are distributed directly to the employee (via 1099-SA curative distribution)

Finally, as mentioned up front, because of the potential tax consequences, we would encourage the employer to seek the assistance of outside tax counsel or their accountant in these situations. They should also encourage the employee to seek tax advice from an experienced tax preparer.