COVID-19 Employee Benefits Toolkit

Resources and insights on what's next as the US economy reopens.

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Our dedicated group of employee benefits and executive compensation lawyers is tracking the latest developments and providing comprehensive coverage of the benefits and compensation issues that plan sponsors need to know throughout the pandemic. 

Featured Insights

  • Stimulus Redux: Welfare Benefit Plans

    The Consolidated Appropriations Act 2021 includes several provisions affecting employer-sponsored benefit plans.

  • Stimulus Redux: Retirement Plans

    The Consolidated Appropriations Act 2021 includes several changes that impact tax-qualified retirement plans. 

  • COVID-19 Vaccine: Benefits Implications

    Now that we have two approved vaccines (and several more on the horizon) employers are starting to explore whether they should require their employees to get vaccinated in order to report to work.

Tax-Qualified Retirement Plans

Some tips on considerations for treatment of those returning from furlough.

  • Was the individual eligible to participate in the plan before furlough? Determine appropriate plan entry or re-entry date; consider whether the individual continued to earn service credit or if break-in-service occurred—if the latter, confirm whether service is bridged.
  • How should employee deferrals be resumed and at what rate? If individual was eligible to contribute before furlough, determine at what rate they contributed; review applicable enrollment and automatic contribution escalation provisions to determine impact on contribution rate.
  • Did an individual have outstanding loans under the plan? Clarify whether payments were suspended while on furlough—if so, confirm whether payments will need to restart upon return to work—consider whether re-amortization is necessary-- consider whether the plan will be amended to provide COVID-19 loan relief or other IRS loan repayment relief.
  • Send enrollment or regulatory notices as required, including potentially the SPD.
  • Review plan terms for rules on treatment of rehires (if employment was terminated).
  • Was an individual eligible to participate before termination? Consider whether break-in-service occurred and whether service was bridged.
  • How should employee deferrals be resumed and at what rate? Determine at what rate they contributed before termination; review applicable enrollment and automatic contribution escalations provisions to determine impact on contribution rate.
  • Did an individual have outstanding loans under the plan? Clarify whether payments continued after termination or if loan was deemed distributed; consider whether there may be eligibility for loan relief.
  • Did an individual take a distribution from the plan account after termination? If so, consider whether it could be reclassified as a Coronavirus-Related Distribution (and therefore not subject to early withdrawal penalty and eligible for repayment).
  • Send enrollment or regulatory notices as required, potentially include the SPD.

Some tips on considerations for treatment of those returning from furlough.

  • Review how any furlough impacts participant benefits under the plans, confirm desired results, and consider amendments.
  • Consider amending plan to credit employees with service during the furlough; service credited under the plan depends on a number of factors, including the plan’s method of earning service (e.g., counting hours, elapsed, time, etc.) and the length of the furlough.
  • Consider amending benefit formula to exclude furlough period from final average pay calculation—typically, the calculation is based on the average of an employee’s last 5 or 10 years of annual pay before termination from employment; a period of unpaid furlough could contribute to a year of significantly lower compensation and lower the ultimate plan benefit.
  • However, ability to amend may be limited under Code Section 436 based on the plan’s funded status.

Health and Welfare Plans

  • Anti-Vax Tax Facts: Legal Considerations for Premium Differentials Based on Vaccination Status (August 26, 2021)
    As employers continue to struggle with strategies for safely re-opening their workplaces, we have previously discussed the possibility of mandating a vaccine or providing incentives for getting the vaccine. As employers shift their focus toward the cost of COVID hospitalizations (which studies show are a much greater risk for unvaccinated individuals), employers are increasingly considering imposing a premium differential between vaccinated and unvaccinated covered participants. Imposing such a premium differential is doable, but likely creates a group health plan wellness program, which implicates both HIPAA (under rules issued by HHS), and the ADA and GINA (governed by the EEOC) wellness program rules.
  • Changes to HIPAA Privacy Rules on the Horizon (December 18, 2020)
    The Department of Health and Human Services (HHS) has proposed changes to the required Privacy Notice under the HIPAA privacy regulations. If finalized, these would be the first significant changes to the HIPAA rules since the HITECH changes effective back in 2013.

  • Oh What a Relief It Is - For Health Plan Participants (May 1, 2020)
    This post summarizes the DOL relief provided to employee health plans as a result of the COVID-19 national emergency.

Multiemployer Plans/Taft Hartley

Executive Compensation

Some tips on considerations for treatment of those returning from furlough.

  • Furloughed executives returning to work within six months—deferrals to non-qualified deferred compensation should resume.
  • Executives on furlough for more than six months—non-qualified deferred compensation distributions should be triggered on a “separation from service”; employers should review specifics of the executive’s account balance to determine continuation of deferral upon return to work.
  • Vesting of non-qualified deferred compensation and equity will vary by plan; employers should assess the impact of furlough on option exercise rights.

Beyond COVID-19 Resource Center

Sponsored by our COVID-19 Task Force, our Beyond COVID-19 Resource Center provides insights and analysis regarding what's next as the US economy reopens.