March 17, 2020
Authored by: Randy Scherer, Lisa Van Fleet and Steve Evans
As the Coronavirus has continued to spread, there has been guidance from various entities on a myriad of topics pertaining to employee benefits. Summaries and links to such guidance can be found below. This information will be updated regularly as more guidance becomes available.
The Health Insurance Portability and Accountability Act (HIPAA): The Office for Civil Rights, a division of the U.S. Department of Health and Human Services, published a bulletin outlining privacy of protected health information and when covered entities may disclose such information without a patient’s authorization. Covered entities may be able to disclose needed protected health information without individual authorization to public health authorities, to persons at risk of contracting or spreading a disease, or to prevent a serious and imminent threat, among other limited circumstances. Covered entities must make reasonable efforts to limit the information disclosed to that which is the minimum necessary to accomplish the purpose. In a prior post, we provided a review of the bulletin and ongoing HIPAA obligations for covered entities.
The Family and Medical Leave Act (FMLA): The U.S. Department of Labor released a Q&A addressing various questions about employee rights and employer responsibilities under the FMLA. Eligible employees are typically entitled to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month period due to their own illness or that of a family member. Covered employers must continue to abide by federal FMLA laws as well as any applicable state FMLA laws.
High Deductible Health Plans (HDHP) and Expenses Related to COVID-19: The IRS published a notice stating that, until further guidance is issued, HSA-eligible HDHPs will not fail to be HDHPs for providing health benefits associated with testing for and treatment of COVID-19 without a deductible or with a deductible below the minimum deductible for an HDHP. For a summary of the IRS guidance, read our prior post.
Essential Health Benefits (EHB) and COVID-19: The Centers for Medicare & Medicaid Services and Center for Consumer Information and Insurance Oversight, divisions of the U.S. Department of Health and Human Services, posted an FAQ regarding EHB coverage as it pertains to COVID-19. EHB include laboratory services and hospitalization, so the diagnosis and treatment of COVID-19 is generally covered under EHB-benchmark plans (although coverage details and cost-sharing will vary, and some plans may require authorization for these services). Quarantine outside of a hospital setting is not required to be covered as EHB. A future COVID-19 vaccine would not be covered until at least 12 months after recommendation from the Advisory Committee on Immunization (ACIP) of the Centers for Disease Control and Prevention (CDC) under current regulations.
Dependent Care Elections (DCAP): While no guidance has been issued specifically in the context of COVID-19, employers may want to remind employees that a change in election under a DCAP may be appropriate if child care needs change due to change in employment status of an employee or employee’s spouse effecting eligibility, or a change in cost or coverage. Of course any such election must be prospective, consistent with terms of the plan and made in accordance with plan procedures.
Equal Employment Opportunity Commission (EEOC) Guidance for Employers Regarding COVID-19: The EEOC published Americans with Disabilities Act guidance for employers responding to public health guidance by implementing new workplace policies (such as sick leave and remove working policies) and preventive measures. Our employment law colleagues provided an overview of this guidance in a blog post on the BCLP At Work blog.
The Fair Labor Standards Act (FLSA): The U.S. Department of Labor released a Q&A addressing various questions concerning FLSA compliance for employers and employees in different scenarios that may occur during the COVID-19 pandemic and other public health emergencies.
IRS COVID-19 Website: The IRS established a page on its website to aggregate resources and guidance for taxpayers, businesses, and others affected by the COVID-19 pandemic. The page will be updated as additional guidance is released.
Families First Coronavirus Response Act (FFCRA): The FFCRA includes emergency family and medical leave (up to 12 weeks with a combination of paid and unpaid leave) and paid sick leave (up to 80 hours) provisions that apply to certain employers and eligible employees. Our employment law colleagues provided an overview of these requirements under the FFCRA in a two-part series: Part 1, Part 2.
- Department of Labor, Treasury Department, and IRS Press Release regarding plan to implement coronavirus-related paid leave and tax credits.
- IRS Filing and Payment Deadlines Questions and Answers related to federal income tax return filing and payment relief.
- The Department of Labor Wage and Hour Division has created a website with links to its FFCRA, fact sheets, frequently asked questions, workplace posters, and temporary non-enforcement field assistance bulletin. The website can viewed by clicking here.
- Temporary DOL Regulations for paid leave under the FFCRA: https://www.dol.gov/agencies/whd/ffcra