Employer-Relief Available for Certain Participant Disclosure Deadlines

By: Emily Marr

***Special Note: This Blog piece was updated on Oct. 8th to reflect the latest news on the Public Health Emergency. It was renewed on Oct. 2nd, with the effective date of October 23, 2020.

COVID-19 deadline extensions aren’t just for plan participants!

Yes! The 2019 Coronavirus (COVID-19) national emergency relief did provide aid directed to individual plan participants, but also to the Plan Sponsors/Plan Administrators of ERISA plans too!

The following is an overview of selected participant disclosure extensions available to single-employer ERISA welfare benefit plans under federal law (additional requirements may apply under state or local laws).

Important Definitions:

• “National Health Emergency” refers to the COVID-19 pandemic emergency as declared by the President under the Stafford Act on March 13, 2020.
• “Outbreak Period” is the period from March 1, 2020 until 60 days after the announced end date of the National Health Emergency. The Outbreak Period must be disregarded when calculating certain participant disclosure deadlines (end date has yet to be announced).
• “Public Health Emergency” is the COVID-19 pandemic emergency as declared by the Secretary of Health and Human Services. The Public Health Emergency began retroactively to January 27, 2020, and must be renewed every 90 days (it was last renewed October 23, 2020). This term is used in FFCRA and CARES Act provisions.

Notice	Disclosure Description	COVID-19 Special Due Date	Related Law/Reg
COBRA: Election Notice	Qualified beneficiaries must be provided the opportunity to elect COBRA coverage upon a COBRA qualifying event. Plan sponsors/plan administers must deliver the COBRA Election Notice within specific timeframes.	The Outbreak Period must be disregarded when calculating the Election Notice delivery deadline (originally within 14 days after receiving notice of the qualifying event or within 44 days of the qualifying event if the plan sponsor is the plan administrator).	Joint Notice published May 4, 2020
SAR: Summary Annual Report	Summary of plan’s Form 5500 report, if required. Most health and welfare plans with 100 or more employee participants on the first day of the plan year are required to distribute the SAR within 9 months from the end of the related ERISA plan year.	The plan sponsor with a SAR due for delivery during the Outbreak Period may extend the 9-month deadline so long as it acts in good faith to furnish the SAR “as soon as administratively practicable under the circumstances.”	EBSA Disaster Relief Notice 2020-01
SBC: New Plan Year Summary of Benefits and Coverage	An “easy-to-understand” summary of plan’s benefits and coverage, and a uniform glossary of standard terms delivered with enrollment materials and upon renewal of coverage.	The plan sponsor with an SBC due for delivery during the Outbreak Period may extend the delivery date so long as it acts in good faith to furnish the SBC “as soon as administratively practicable under the circumstances.”	EBSA Disaster Relief Notice 2020-01
SBC: Notice of Modification to the SBC	An updated SBC to retroactively add diagnosis/treatment of COVID-19, purchases of OTC drugs and menstrual care products, telehealth services, and/or to reduce/eliminate cost-sharing for telehealth services.	There is a non-enforcement order in place for the SBC’s 60-day advanced notice requirement when plan changes are related to certain COVID-19 modifications (so long as there’s no material reduction of benefits). Plans must provide participants with the revised SBC as soon as reasonably practicable.	FAQs Part 42, FAQs Part 43, FFCRA and CARES Act
SPD/SMM: Summary Plan Description and Summary Material Modifications	The primary vehicle for informing participants about the plan (SPD) and about important changes to the plan (SMM).	The plan sponsor with an SPD or SMM due for delivery during the Outbreak Period may extend the delivery date so long as it acts in good faith to furnish the SPD and/or SMM “as soon as administratively practicable under the circumstances.”	EBSA Disaster Relief Notice 2020-01
ERISA: A  Participant’s Written Request for ERISA Documents	A plan sponsor must, on written request by any participant or beneficiary, furnish him or her with the requested ERISA plan document, SPD, SAR, and/or related documents within 30 days of the request.	If the 30-day turnaround deadline occurs within the Outbreak Period, the plan sponsor may extend the 30-day deadline so long as it acts in good faith to furnish the document(s) “as soon as administratively practicable under the circumstances.”	EBSA Disaster Relief Notice 2020-01
ICHRA: Individual Coverage HRA Notice	Describes the ICHRA and lets employees know that the ICHRA offer may make them ineligible for a premium tax credit or subsidy when buying an ACA exchange-based plan, even if they opt-out of the ICHRA.	If the 90-day advanced notice of the ICHRA’s availability occurs within the Outbreak Period, the plan sponsor may extend the notice deadline so long as it acts in good faith to furnish the document(s) “as soon as administratively practicable under the circumstances.” Plan sponsor offering an ICHRA for the first time are encouraged to consider whether they can provide the ICHRA notice far enough in advance so that eligible employees have sufficient time to make informed decisions and timely take necessary actions.	EBSA Disaster Relief Notice 2020-01 FAQs 43, FFCRA and CARES Act

 

Disclaimer: The above summary is an overview of the participant disclosure extensions provided under various COVID-19 laws and regulatory guidance. This summary is a general overview of federally required participant notices and is not intended to provide tax or legal advice.

Questions: If you have questions or need further assistance, feel free to contact Aubrey Box from Wrangle: abox@wrangle5500.com