COVID-19 Benefits Related FAQ Part 2
Here is a list of additional Frequently Asked Questions for COVID-19 related benefits issues. This resource will be updated as more questions and answers are available. The complete FAQ can be found at https://pilotrb.com/covid19
We are a small business with 35 employees, so we are subject to the FFCRA. However offering paid leave will jeopardize our business. What can we do?
If you have fewer than 50 employees and offering the paid leave under FFCRA will jeopardize the viability of the business, you may exempt yourself from compliance with the paid leave. The DOL lists 3 criteria, of which an employer must meet at least one, to claim an exception:
The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
We have 700 employees and are not subject to the FFCRA, but we are subject to the New York Paid Sick Leave for Quarantine. My Employee only has a doctor's note and not a State order. Must I grant 14 days of paid sick leave?
The most recent guidance at the time of this Q&A directs employers to accept a doctors note from an employee who has tested positive for COVID-19, or is caring for someone who has tested positive, as long as the employee confirms they are following the steps to obtain a valid order of quarantine from the proper authority. The directions for employees with positive tests who need an order of quarantine are linked here.
Can my employee take paid Expanded FMLA to care for her child whose school is closed, after this same employee took 12 weeks of FMLA in October?
Employees are only eligible for the expanded paid FMLA under FFCRA if they have not already exhausted all 12 weeks of FMLA entitlement in the current 12 month period. An employee who took all 12 weeks of their annual FMLA allotment 6 months prior would not be eligible for paid FMLA under FFCRA (but they would be eligible for the 2 weeks of paid sick leave if they have an eligible reason).
My child’s daycare is closed. I have an existing Dependent Care Account election I’d like to change since I cannot use it. Is this permissible?
The IRS rules generally prohibit any mid-year changes to tax favored accounts such as dependent care FSAs or general purpose FSAs, absent a qualifying event. The closure of a daycare center would generally qualify under the ‘change in cost’ event within Section 125 (1.125-4(f)(2)(i)), allowing an employee to make a change to their current election amount.
I tried to purchase over the counter medications with my HSA card at the pharmacy but the purchase would not go through. Why?
While the CARES Act removed the prohibition in the existing law that disallowed over the counter medication to be purchased with pre tax funds such as an FSA or HSA, vendors will need to update their systems and processes to facilitate direct purchases. Given the high volume of consumer purchases of essential items right now, it may take some time for these updates to be implemented. In the meantime, manual reimbursements may be submitted for newly eligible purchases.
We are paying 3 months of COBRA premiums for all employees that were laid off as a result of business shortages this month. When our employer COBRA payments cease, will the individuals be able to enroll in the public Exchange?
Ordinary rules do not include a qualifying event for situations where an employer’s premium subsidy for COBRA ceases. However, the HealthCare.gov COVID-19 site contains information stating that employer COBRA subsidy termination ‘may’ create a special enrollment period allowing impacted individuals to enroll in an Exchange plan at that time. It's a best practice to direct employees to the HealthCare.gov site and not confirm circumstances surrounding what the public Exchanges may allow in terms of special enrollments in the future.
We offer an HSA compatible high Deductible Health Plan (HDHP). I have seen something regarding telehealth being covered at 100% and am wondering how this affects HSA eligibility?
The first guidance on this was found in IRSA Notice 2020-15, which required telehealth for COVID-19 related treatment to be covered at 100%, with no cost share, and stating that HDHPs doing so will not impact an employees’ HSA eligibility. Newer rules expand on this, and now permit all telehealth (unrelated to COVID-19 testing or treatment) to be covered at 100% without causing a loss of HSA eligibility. This expansion for telehealth applies to plan years beginning on or before December 31, 2021. Any plan renewing January 1, 2022 and beyond cannot offer telehealth without cost share to HSA eligible employees.
Note this coverage for telehealth with no cost share is an option for employer plans and carriers; it is not mandatory.