The Washington Report

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March 18, 2020

Note to subscribers: Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline. Stay healthy and safe! ~The Washington Report team

Legislative

House Passes Coronavirus Relief Bill Which Includes Limited Paid Emergency Sick Leave; Moves to Senate
The House passed an updated coronavirus relief package (H.R. 6201 (116) – Families First Coronavirus Response Act) on March 16, 2020. The bill moves to the Senate this week. The bill was originally passed on March 14, 2020, but legislators approved an amended version of the bill with technical corrections on March 16, 2020. According to the bill summary, the legislation responds to the coronavirus outbreak by providing “emergency paid sick leave and free coronavirus testing, expanding food assistance and unemployment benefits, and requiring employers to provide additional protections for health care workers.” At the time of publication, the two-week emergency paid sick leave provision would impact employers with less than 500 employees. There are also exemptions for businesses with fewer than 50 employees and who work in health care settings. Additionally, the amended bill limits the eligibility of 12 weeks of paid family and medical leave as part of the Family and Medical Leave Act (FMLA). The FMLA “qualifying need” would be limited to instances where an employee is unable to work or telework due to school or child care being unavailable.

Note: provisions of this bill could change as the week progresses. This summary is meant only to provide a brief overview. Please refer to bill text for specifics. There are also other bills being considered by Congress in response to the pandemic, but at the time of this publication deadline, have not passed either chamber. There is also discussion of Congress creating one substantial aid package, combining H.R. 6201 (116) with another stimulus spending bill, that could be considered by the Senate this week. As noted previously, the situation is fluid and changing rapidly.

The full text of H.R. 6201 (as passed March 14, 2020) is available here.

The amended version of the bill (March 16, 2020) is available here.

Health

CMS Posts FAQs on EHB Coverage in Response to Coronavirus Outbreak
On March 13, 2020, the Centers for Medicare and Medicaid Services (CMS) posted Frequently Asked Questions (FAQs) on Essential Health Benefits (EHB) coverage in response to the coronavirus (COVID-19) outbreak. The FAQs detail existing federal rules governing health coverage provided through the individual and small group insurance markets that apply to the diagnosis and treatment of COVID-19. The FAQs clarify which COVID-19-related services, including testing, isolation/quarantine, and vaccination, are generally currently covered as EHBs in these markets. According to the CMS, the purpose of the FAQs is “to provide guidance to Americans enrolled in individual or small group market health plans, including HealthCare.gov consumers.” The CMS stated that as questions and issues continue to come to the CMS, they will be addressed and added to the FAQs.

The CMS news release is available here.

The COVID-19 FAQs for EHB can be found here.

The FAQs, and earlier CMS actions in response to the COVID-19 virus, are part of ongoing White House Task Force efforts. To keep up with what the Task Force is doing in response to COVID-19, click here.

For information specific to CMS, readers should visit the Current Emergencies Website, available here.

IRS States High-Deductible Health Plans Can Cover Coronavirus Costs
On March 11, 2020, the Internal Revenue Service (IRS) released Notice 2020-15, which advises that high-deductible health plans (HDHPs) can pay for COVID-19-related testing and treatment, without jeopardizing their status. This also means that an individual with an HDHP that covers these costs may continue to contribute to a health savings account (HSA). In the Notice, the IRS states that health plans that otherwise qualify as HDHPs will not lose that status merely because they cover the cost of testing for or treatment of COVID-19 before plan deductibles have been met. The IRS also notes that, “as in the past, any vaccination costs continue to count as preventive care and can be paid for by an HDHP.”

For additional information, please refer to the Aon bulletin IRS Grants Temporary Relief From HDHP Deductible Rules for Coverage of COVID-19 in the Publications section of this newsletter.

IRS Notice 2020-15 is available here.

The information release is available here.

Retirement

IRS Releases Cumulative List of Changes in Plan Qualification Requirements for Pre-Approved Defined Benefit Plans
On March 6, 2020, the Internal Revenue Service (IRS) released Notice 2020-14, which provides the 2020 Cumulative List of Changes in Plan Qualification Requirements for Pre-Approved Defined Benefit Plans (2020 Cumulative List). The 2020 Cumulative List establishes specific matters the IRS has identified for review in determining whether a defined benefit plan document that has been filed for an opinion letter has been properly updated. The provisions in the 2020 Cumulative List include statutory and regulatory provisions that were issued between October 1, 2012, and December 1, 2019.

IRS Notice 2020-14 is available here.

Other HR/Employment

DOL Releases FAQs on COVID-19 or Other Public Health Emergencies and the FMLA
On March 11, 2020, the Department of Labor’s (DOL) Wage and Hour Division posted a list of frequently asked questions (FAQs) addressing the coronavirus (COVID-19) or Other Public Health Emergencies and the Family and Medical Leave Act (FMLA). The 11 questions discussed include:

Which employees are eligible to take FMLA leave?
Must an employer grant leave to an employee who is sick or who is caring for a family member that is sick?
Can an employee stay home under FMLA leave to avoid getting pandemic influenza?
What legal responsibility do employers have to allow parents or caregivers time off from work to care for the sick or children who have been dismissed from school?
Is an employer required by law to provide paid sick leave to employees who are out of work because they have pandemic influenza, have been exposed to a family member with influenza, or are caring for a family member with influenza?
May employers send employees home if they show symptoms of pandemic influenza? Can the employees be required to take sick leave? Do they have to be paid? May employers prevent employees from coming to work?
May an employer require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work?
May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?
If an employer temporarily closes his or her place of business because of an influenza pandemic and chooses to lay off some but not all employees, are there any federal laws that would govern this decision?
Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?
What types of policy options do employers have for preventing abuse of leave?

For additional information, please refer to the Aon bulletin DOL Issues FAQs on FMLA and COVID-19 in the Publications section of this newsletter.

The FAQs are available here.

Aon Publications

IRS Grants Temporary Relief From HDHP Deductible Rules for Coverage of COVID-19
The Internal Revenue Service (IRS), responding to the coronavirus (COVID-19) public health emergency, has approved payment of medical expenses by high-deductible health plans (HDHPs) for COVID-19 testing and treatment without regard to satisfaction of the HDHP deductible.

The spread of COVID-19 has already prompted insurance carriers to announce waivers of employee cost-sharing for expenses related to testing for COVID-19. Some carriers have done so on their own initiative, while others are following directives from, at last count, more than half a dozen state insurance departments. These waivers, however, did not consider the impact on HDHPs, which are regulated by the IRS.

The Aon bulletin, which provides additional information on IRS Notice 2020-15, is available here.

DOL Issues FAQs on FMLA and COVID-19
The U.S. Department of Labor (DOL) has issued Frequently Asked Questions (FAQs) for employers regarding the application of the Family and Medical Leave Act (FMLA) to COVID-19 and other public health emergencies. The overarching theme of the DOL FAQs is that, while FMLA does not apply to the quarantine or avoidance of workplace exposure to COVID-19, employers are encouraged to “review their leave policies to consider providing increased flexibility to their employees and their families.”

Employers considering policies to address the spread of COVID-19 should review the FAQs, which include a summary of the FMLA rules, and apply these rules to questions regarding COVID-19.

The Aon bulletin, which provides additional information on the FAQs, is available here.