How Employers Can Assist Employees (Current and Former) Right Now

Brownstein Hyatt Farber Schreck

Countless employers have been forced to reduce employees’ hours or terminate employees due to the 2019 novel coronavirus (“COVID-19”). Federal and state governments are working to pass stimulus legislation to assist the people and businesses most affected by the economic fallout created by this national emergency. In the meantime, beyond offering paid sick leave or implementing severance pay programs, employers can take other actions under existing employee benefit programs to cushion the fall for their current and former employees. Below is a summary of some of these actions:

Amend Group Health Plans
  • Subsidize COBRA. An employer must offer COBRA (or the state law equivalent if a small employer) to an employee who loses group health plan coverage due to a reduction in hours or a termination of employment. Qualified beneficiaries typically are required to pay the full COBRA premium of up to 102% of the cost.1 However, an employer could subsidize the cost of the COBRA premium for its former employee in order to ensure the continued coverage is affordable. When offering subsidized COBRA coverage, be certain to state in the notice that the subsidy period runs concurrently with and does not lengthen the regularly applicable COBRA coverage period. Brownstein Comment: We’d be happy to talk with you about how to structure any COBRA subsidies since they could be provided in different ways (reimbursement, employer-direct pay, or direct payment to the qualified beneficiary) with varying advantages, disadvantages and employer risk.
  • Allow Coverage for Part-Time Employees. Many group health plans impose a “full-time” employment requirement in order for an employee to be eligible for coverage. “Full-time” is typically defined as working 30 hours or more per week consistent with the Affordable Care Act’s definition of a full-time employee. An employer could amend its group health plan to provide coverage to employees who are scheduled to work less than the full-time threshold. Doing so would negate the need to offer COBRA and could be limited to a set period of time. In addition, to protect variable-hour employees’ coverage, applicable large employers should consider revising applicable lookback measurement periods during the COVID-19 crisis. Brownstein Comment: While we are aware that some insurers are issuing FAQs indicating that coverage of employees not meeting the agreed-upon eligibility requirements will be permitted for a specified, limited period of time, we recommend that, if you have a fully insured plan, you review your policy requirements and confirm coverage of part-timers with the insurer so as to avoid creating any situation where health services would be denied by the insurer.
Amend Dependent Care Spending Accounts (“DCAP”)
  • Add a Spend-down Provision. A spend-down provision allows terminated employees to use the money remaining in the employee’s DCAP for qualified benefits incurred through the end of the plan year in which the employee is terminated.2 Expenses incurred after a termination of employment are only eligible for DCAP reimbursement if they enable the employee or spouse to be employed (by a new employer), looking for work, or attending school full-time.3 While there will be practical limitations to incurring eligible expenses during the COVID-19 crisis, a spend-down provision removes one roadblock to the use of DCAP funds.
  • Add a Grace Period. If not already in the plan, add a provision that permits employees to carry over unused DCAP contributions from one year to the next so they don’t lose amounts already saved to the DCAP in 2020 that they may be unable to use in 2020 for reasons like being required to work from home and/or the shutdown of day care facilities. The plan may allow participants to access unused amounts remaining in their accounts at the end of a plan year to pay or reimburse expenses for qualified benefits (such as DCAP expenses) incurred during a grace period of up to two months and 15 days following the close of the plan year.4
  • Allow Mid-Year Changes. Ensure that the plan contains provisions and has administrative practice that allows an employee to elect to cease salary deferrals into the DCAP if they take FMLA due to their own or a family member becomes ill with COVID-19.5 Brownstein Comment: Given the national emergency in which we find ourselves, the IRS would not likely object to liberal interpretations of mid-year election change provisions in order to allow employees to cease their salary deferrals to DCAPs to avoid negative financial consequences if such deferrals were not otherwise allowed.6
Amend Retirement Plans
  • Allow Multiple Loans and/or Suspend Repayments. An employer that sponsors a profit-sharing plan (“PSP”), 401(k) plan or 403(b) plan could amend the plan to permit plan loans to participants. If a plan already allows loans but limits each participant to only one loan at a time, the plan could be amended to allow more than one plan loan outstanding at a time. In addition, the plan could be amended to provide for suspension of the loan repayment requirements during (i) an unpaid bona fide leave of absence for up to one year or (ii) a paid leave of absence when the participant’s rate of pay (after income and employment tax withholding) is less than the installment payment required under the terms of the loan.7 Brownstein Comment: Current law and regulations limit plan loans to a participant to the lesser of (i) 50% of the participant’s vested account balance and (ii) $50,000.8 We are aware that some legislation being presented to Congress includes changes to those limitations, so future access to more funds through plan loans may be possible.
  • Fully Vest Participants. An employer could amend its qualified retirement plan to fully vest participants’ accounts to the extent funded and not already fully vested. By doing so, the employer would make more money available to participants terminated as a result of COVID-19’s impact on the employer. If this measure is combined with a hardship distribution (see below), the participants would be able to access more money without a penalty.
  • Add or Expand In-Service Distribution Provisions.
    • In-Service Distributions. Employers that sponsor a PSP or 401(k) may amend the plan to allow for in-service distribution of amounts that have been held in the plan for at least 24 months. A PSP also could provide for distributions after stated events, such as a furlough, layoff or hardship. A distribution of profit-sharing contributions is also permitted after a fixed number of years to a participant who has participated in the plan for at least five years.9 Brownstein Comment: Ordinarily such a distribution before age 59½ would be subject to the 10% early distribution excise tax. However, both proposed Senate and House bills contain a waiver of this excise tax on “coronavirus related distributions” taken in 2020.
    • Hardship Distributions. Safe harbor hardship events that permit distributions under a 401(k) plan or 403(b) plan include, among others, (i) expenses for medical care previously incurred by the participant, the participant’s spouse, any of the participant’s dependents, or the participant’s primary beneficiary under the plan; or expenses necessary for those persons to obtain medical care deductible under Code §213; (ii) payments necessary to prevent the eviction of the participant from the participant’s principal residence or foreclosure on the mortgage on that residence; and (iii) expenses and losses (including loss of income) incurred by the employee on account of a disaster declared by FEMA, provided the employee’s principal residence or place of employment at the time of the disaster was located in an area designated by FEMA for individual assistance.10 An employer could amend its plan to make hardship distributions during the COVID-19 crisis that meet one or more these safe harbor events.
  • Revise Method for Counting Hours of Service. If a qualified retirement plan normally credits hours using the counting hours method, an employer could amend the plan to credit hours on an elapsed time basis during the COVID-19 crisis. Under the elapsed time method, service time is credited generally based on date of hire to date of termination, without regard to the actual numbers of hours worked during that period. This may prevent employees with reduced hours from losing accruals and vesting under the plan.11
Establish a Qualified Disaster Relief Payment Program

An employer may set up a “qualified disaster relief program” under Code §139. Any amount paid to reimburse or pay reasonable and necessary personal, family, living or funeral expenses incurred as a result of a qualified disaster would fall within the definition of a qualified disaster relief payment to the extent any expense compensated by the payment is not otherwise compensated for by insurance or some other reimbursement.

Qualified disaster relief payments are excluded from an employee’s gross income and from the employee’s wages and compensation for purposes of employment taxes. As a result, these payments are not subject to federal income tax withholding, FICA or FUTA. The payments do not have to be reported by an employer making the payment on the receiving employee’s Form W-2, and do not have to be reported as income by the affected employee.12 Brownstein Comment: While current guidance does not require much, if any, recordkeeping, an employer should keep appropriate records in order to document its corporate tax deduction.

1 Code § 4980B(f)(2)(C). The COBRA premium can be up to 115% for disabled individual coverage.

2 Prop. Treas. Reg. § 1.125-6(a)(4)(v).

3 Code § 129(e).

4 Prop. Treas. Reg. §§ 1.125-1(e) and 1.125-5(c)(1).

5 Treas. Reg. § 1.125-3, Q&A-7.

6 We are aware of prior informal non-binding remarks from officials in the IRS Office of Chief Counsel indicating that the DCAP election rules should be liberally interpreted.

7 Treas. Reg. § 1.72(p)-1, Q/A-9.

8 See Code § 72(p)(2).

9 Treas. Reg. § 1.401-1(b)(1)(ii); see also Rev. Rul. 68-24, 1968-1 C.B. 150. See also Rev. Rul. 54-231, 1954-1 C.B. 150.

10 Treas. Reg. § 1.401(k)-1(d)(3), as amended to reflect the SECURE Act.

11 See Treas. Reg. § 1.410(a)-7(g).

12 Note that applicable state and local laws need to be consulted to determine whether these amounts are subject to any state and local taxes (and related tax  Qualified Disaster Relief Payments withholding).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brownstein Hyatt Farber Schreck | Attorney Advertising

Written by:

Brownstein Hyatt Farber Schreck
Contact
more
less

Brownstein Hyatt Farber Schreck on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.