The Consolidated Appropriations Act of 2021 (“CAA”) offers significant relief for employers sponsoring flexible spending accounts. After much clamoring from the employer community, the IRS finally issued clarifying guidance in the form of Notice 2021-15 (the “Notice”). Check out our full Legal Update for details.
Seyfarth Synopsis: As you’ll recall, last Spring, the DOL and IRS issued guidelines providing relief from certain deadlines for employee benefit plans, retroactive to March 1, 2020 (i.e., the beginning of the COVID-19 national emergency declared by the President). The relief was issued pursuant to authority granted to the agencies under ERISA Section 518 and Code Section 7508(A) and extended through the end of the “Outbreak Period.” Click here, here and here to review our prior articles on the Outbreak Period. We wanted to provide a quick update on what we’re hearing out of Washington D.C. relating to the timing and process for the expiration of the “Outbreak Period.”
In general, the extended deadline relief applied to the following deadlines applicable to participants and plan administrators:
- The COBRA election deadline;
- The COBRA premium payment deadline;
- The HIPAA special enrollment deadline;
- The deadline for filing a claim or appeal for benefits or a request for an external review of an adverse benefits determination; and
- The deadline for plan administrators to provide the COBRA election notice.
Under the guidance, any such deadline occurring on or after March 1, 2020, would be tolled for the entirety of the national emergency, plus 60 days (the “Outbreak Period”). That said, when the guidance was published it was widely believed that the national emergency period would be lifted at some point in 2020. In fact, the authority granted to the DOL and IRS under ERISA Section 518 and Code Section 7508(A) only allows such relief to extend for a one-year period.
Given this framework, our understanding is that the relief afforded under these rules will expire effective February 28, 2021 – and this expiration would be a “hard stop,” meaning there will not be a 60 day “wind down” period as anticipated in the original guidance. (But keep in mind that the deadlines were simply tolled during this period, so any remaining time a participant or plan administrator had to complete the action when the suspension took effect on March 1, 2020, will still be available after February 28, 2021.)
We reached out to various Washington D.C. policy groups to get insight into whether the agencies agree with this interpretation, and whether and to what extent they believe they have the authority to further extend the Outbreak Period, absent Congressional action granting them such authority. Here are a few key takeaways from that discussion:
- Both agencies are aware of the issue and are considering whether to issue clarifying guidance.
- The DOL seems more open to seeking avenues to further extend the Outbreak Period. The ideas they are contemplating include treating this as an “evergreen period,” with a new one year period commencing after the conclusion of the prior one year period, or perhaps even applying the one-year window on an individual-by-individual basis (which would be an administrative mess).
- The IRS is less keen on issuing any sort of extension. They are sensitive to the fact that the IRS more broadly relies on the authority under Code Section 7508(A) to extend a number of other non-benefits-related deadlines. So, they are concerned about the precedent this might set if they extend further in this context.
- Regardless of the above, both agencies seemed to tacitly confirm that, absent any further action, February 28, 2021 will be the end date for the deadline relief.
Looming in the background of all of this is the proposed COVID relief bill which would include a prospective COBRA subsidy of 85% of the cost of coverage, including the right for persons to elect COBRA prospectively to run for the remainder of their COBRA window, even if the election period has expired. So, seemingly the urgent need for an extension of the Outbreak Period is lessened (assuming the COBRA subsidy makes it into the final bill).
Given the balance of likelihoods, employers should consider communicating this upcoming expiration of the Outbreak Period (e.g., through a Summary of Material Modification or other participant communication), at the very least to COBRA participants but potentially to the broader population given the implications for HIPAA special enrollments and claim filing deadlines. (That is, unless the employer had previously communicated a February 28, 2021 end date.) It will also be important to coordinate with COBRA and claims administration vendors to ensure there is alignment/uniformity in approach.
In any case, we’re monitoring and will keep you posted on developments.
Seyfarth Synopsis: The IRS released final regulations, under T.D. 9937, that generally adopt the proposed rules relating to qualified plan loan offsets issued last year, with one modification relating to the applicability date. Plan administrators should be prepared to evaluate whether their systems can properly track qualified plan loan offsets, which must now be specifically identified in any Form 1099-R that is distributed to an employee.
Many defined contribution plans require an outstanding loan balance to be immediately repaid by a participant in certain events, such as termination of the plan, a request for a distribution, or a participant’s termination of employment. A failure to timely repay the balance results in a loan default. Once in default following one of these events, a participant’s account balance is offset (or reduced) by the amount of his or her outstanding loan balance in satisfaction of that remaining loan balance. This offset amount is treated as an actual distribution from the plan — rather than a “deemed distribution” — and is subject to traditional distribution taxation rules.
Participants can avoid these taxation rules by rolling over the offset amount to an eligible retirement plan, which includes another employer-sponsored defined contribution plan or an IRA, when permissible. Historically, the standard 60-day rollover period applied to a plan loan offset. However, effective January 1, 2018, the tax code was amended by the Tax Cuts and Jobs Act of 2017 to provide an extended rollover period for a type of plan loan offset called a “qualified plan loan offset” or “QPLO.” A QPLO is a plan loan offset that occurs under a defined contribution plan solely due to either:
- Termination of a qualified defined contribution plan, or
- Termination of employment, coupled with an offset that occurs within 12 months after the employee’s termination date.
Under the extended rollover period, a participant may rollover all or a portion of the QPLO any time up until the participant’s federal income tax filing due date, including extensions, for the year that the QPLO was distributed. A plan loan offset amount that is not a QPLO, but is an otherwise eligible rollover distribution, may still be rolled over by a participant or surviving spouse; however, the standard 60-day rollover period applies.
For example, assume a participant terminates employment with an outstanding loan balance of $10,000, and a 401(k) account balance of $50,000. If the participant elects to take a distribution of her account balance immediately following her termination date, she would receive a cash payment of her net account balance, or $40,000, which is her account balance, reduced by the outstanding loan balance. Although the plan issued a check for only $40,000, the plan will report an actual distribution of $50,000 on the participant’s Form 1099-R. In order to avoid having to pay taxes and potential early withdrawal penalties, the participant may roll over the $40,000 amount within 60 days of its distribution under the general rollover rules. Additionally, in order to avoid taxation of and potential penalties on the $10,000 qualified plan loan offset, the participant would be responsible for funding and rolling over that additional $10,000 amount before her tax filing due date, with extensions, for the year of the distribution.
The IRS issued proposed regulations in August 2020 that addressed the extended rollover period associated with QPLOs and solicited comments. Continue Reading Extended Loan Rollover Timeline: More Flexibility for Participants and More Complexity for Plan Administrators
Seyfarth Synopsis: Electronic signatures may be the wave of the future for the IRS, and are more necessary now as a result of the remote work environment. The IRS issued some recent guidance, allowing two authorization forms (Forms 2848 and 8821) to be signed electronically. While this guidance is a welcome step in the direction of electronic signature acceptance, the guidance is very limited, and its use may not be as practical as we would have hoped. Many IRS filings related to benefit plans, e.g., determination letter filings and Voluntary Compliance Program filings, require signatures on forms not covered by the guidance. Thus, benefit plan sponsor and administrators will need more comprehensive relief from the IRS before being able to use electronic signatures broadly for common IRS filings for benefit plans.
In the remote working environment of the COVID-19 pandemic, coordinating “wet” ink signatures on IRS forms has presented challenges for clients and their tax professionals alike. In the benefit plan space, the Form 2848, Power of Attorney and Declaration of Representative, is required to authorize the IRS to discuss matters such as a determination letter application or Voluntary Compliance Program submission with the plan sponsor’s representative, including their outside legal counsel. The Form 2848 must be signed by both the plan sponsor and its outside representative – a feat that has become harder to coordinate as many of us continue to work remotely from home, and some have questioned whether the IRS would accept an electronic signature on this Form.
New guidance provides clarity on the circumstances in which the IRS will accept electronic signatures on a Form 2848. In News Release IR-2021-20, the IRS announced an online tool for submitting the authorization forms without a handwritten signature. The IRS guidance notes that using the online tool with a Secure Access account is the only method to submit electronic signatures on the Form 2848; a Form 2848 that is mailed or faxed to the IRS still requires “wet” signatures.
That said, plan sponsors, plan administrators, and their representatives will still need to coordinate handwritten signatures on other documents for matters before the IRS. For example, the Form 5300, Application for Determination for Employee Benefit Plan, in the case of a determination letter application, and the penalty of perjury statement, in the case of a VCP, are not covered by the new guidance and still appear to require handwritten signatures.
Additionally, use of the online tool presents its own challenges for plan sponsors and their attorneys alike. To take advantage of the tool, the plan sponsor’s attorney must first create a Secure Access account and provide the IRS with certain personal information (such as the attorney’s individual tax filing status and a financial account number linked to their name). Similarly, the attorney may be required by the IRS to verify personal identification (for example, by requesting a driver’s license) of the individual signing for the plan sponsor before submitting the Form 2848.
Observation: The Secure Access account can be used by individual taxpayers for their own personal income tax purposes, which would explain the requirements to provide a tax filing status and financial account information. These requirements make less sense when the Secure Access account is being used by an attorney to upload forms for a client.
Synopsis: On January 20, 2021, the Biden Administration revoked the Trump Administration Executive Order (EO) which had restricted agency Guidance. On January 27, 2021, the Department of Labor (DOL) rescinded the “PRO Good Guidance” rule that it had issued pursuant to the Trump EO – a rule that limited the force of informal guidance in DOL enforcement actions. This rescission may undercut the persuasive effect of an employer interpretation of federal statutes at the agency level, because more Guidance limits the ability for employer interpretations and increases agency enforcement power.
In September of 2020, we published a blog post describing how the Trump Administration reigned in the role of informal federal Department of Labor opinions, generally called “Guidance,” in the agency’s enforcement actions against employers. See our blog post here. The upshot was that there would be less Guidance, and thus more employer freedom to interpret federal statutes.
Now, the Biden Administration has weighed in by rescinding the Trump Administration’s Guidance rule. In a final rule, effective on January 27, 2021, the Department of Labor posits that Trump’s internal rule on guidance “deprives the Department and subordinate agencies of necessary flexibility” and “unduly restricts the Department’s ability to provide timely guidance on which the public can confidently rely.” The Biden Executive Order that led to this agency action, in turn, states that the Administration intends “to use available tools to confront urgent challenges,” including the pandemic, economic recovery, racial justice and climate change. The Order added that the Administration is relying on “robust agency action” to achieve its goals.
You can compare the Trump rule at Fed. Reg. vol. 85, no. 168 (8/28/20) with the Biden rule at Fed. Reg. vol. 86, no. 16 (1/21/21) to drill down on the different treatment of agency Guidance.
We draw these conclusions from the latest Department action on Guidance:
- Employers should expect more Guidance.
- Employers should expect the Department of Labor (and likely other federal agencies) to insist on compliance with each and every issuance of Guidance, thus shrinking the universe of employer statutory interpretations that don’t conflict with Guidance.
- More Guidance may mean more clarity in agency enforcement standards, depending on the drafting quality of the Guidance.
- Whether any particular Guidance is legally binding will still depend on court rulings, as it may be inconsistent with governing statutes or the Constitution .
Please reach out to your Seyfarth attorney if you would like to discuss the impact the Biden Administration rescission may have on your employee benefit plans.
Seyfarth Synopsis: In mid-December 2020, after a truncated comment period and without public hearings, the US Department of Labor (DOL) finalized its proposed regulations on a fiduciary’s responsibilities when exercising shareholder rights like proxy voting (summarized here). They were published in the Federal Register on December 16, 2020 (click here) and were designated as effective on January 15, 2021. However, given the new Administration, the future of that final rule is unclear.
As part of the DOL’s one-two punch to plan fiduciaries’ obligations regarding investment selection and management, the agency quickly finalized its proposed regulation on exercising shareholder rights. (See our other blogs here and here regarding the DOL regulations on ESG investing.) The DOL recognizes that the “fiduciary act of managing plan assets includes the management of voting rights (as well as other shareholder rights) appurtenant to shares of stock.” As we noted in our prior post, the DOL’s view on fiduciaries conducting proxy voting ties the obligation to their concern that voting proxies may relate to non-pecuniary interests. In that case, the DOL’s position in the proposed rule was that plan fiduciaries should actually refrain from voting the proxy.
After receiving a great deal of reaction (including written comments and submissions) from a variety of stakeholders, the DOL made significant changes to the proposed rule. Instead of requiring or prohibiting the voting of certain proxies, the DOL has adopted a principles-based approach under which fiduciaries must adopt a process for exercising shareholder rights that emphasizes their existing ERISA duties of prudence, acting solely in the interest of the plan participants and beneficiaries, and acting exclusively for the purpose of providing benefits to such plan participants and beneficiaries and defraying administrative costs.
The DOL also adjusted some of the other language in the proposed rule that was more prescriptive. This includes modifying the requirement to “investigate” facts surrounding an investment decision to one that requires an “evaluation” of the facts. Also, the obligation that fiduciaries require specific documentation of the rationale for proxy voting decisions from an investment manager who was delegated the proxy voting function has been removed in favor of a more general monitoring approach.
The fate of this final rule is unclear under the new Administration. This is in contrast to the final rule addressing investment selection and management, which was specifically identified in President Biden’s Executive Order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” (See our blog here discussing that Executive Order and those DOL regulations.)
So, yet another reason to stay tuned!
Seyfarth Synopsis: Unpublished U.S. Equal Employment Opportunity Commission (EEOC) proposed regulations regarding incentives offered under wellness programs are set to be withdrawn and reviewed after the Biden White House issues a regulatory freeze.
On January 7, 2021, the EEOC forwarded to the Office of Federal Register its proposed rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) related to wellness programs for publication. The proposed regulations had already been cleared for publication by the Office of Management and Budget (“OMB”). The EEOC also published an unofficial version of the regulations on its website at that time. Seyfarth’s Legal Updates on aspects of the proposed rules, including COVID vaccine implications, can be found here and here.
Before the proposed rules actually were published, however, the Biden White House issued a regulatory freeze. Under the regulatory freeze, it appears that these proposed regulations will be withdrawn from the Office of the Federal Register and set aside for review. The review and approval must be completed by a department or agency head appointed or designated by President Biden (or an approved delegate), unless the OMB director allows publication of the proposed regulations due to some sort of emergency exception.
Whether publication of the EEOC proposed rules will continue to be delayed or whether the rules in their current form will be published at all remains unclear. We look forward to further clarity once the Biden administration informs the public of its intentions for wellness programs generally, and of the fate of the proposed regulations. As explained in our Legal Update, the incentive provisions were removed from the regulations, effective January 1, 2019. Until regulations addressing incentives are published in the Federal Register, employers have little guidance as to the extent to which the new EEOC will allow wellness incentives under the ADA.
Seyfarth Synopsis: The IRS issued Notice 2020-86, which provides guidance on the rules that apply to safe harbor plans that were changed by the Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act”). The guidance covers the increase in automatic contributions permitted under a qualified automatic contribution arrangement (or “QACA”) safe harbor plan, safe harbor notice requirement changes, and issues related to the retroactive adoption of safe harbor status.
The SECURE Act included a number of changes to the rules that apply to safe harbor plans. As described in our prior Legal Update available here, the SECURE Act (1) increased the 10% cap on automatic contributions under a QACA to 15%, (2) eliminated the requirement that a non-elective safe harbor plan notify participants of the plan’s safe harbor status before the beginning of the plan year, and (3) established new rules that permit the adoption of a non-elective safe harbor plan design at any time during a plan year (or even the following plan year) if certain requirements are met.
Notice 2020-86 answers a number of open questions relating to these changes to the safe harbor rules.
- Increase in 10% Cap to 15% for Automatic Contributions. While plan sponsors are not required to increase the cap on automatic deferrals under a QACA from 10% to 15%, some plans incorporate the maximum cap on automatic deferrals by reference to the Code. For those plans, if the plan sponsor does not want the 15% increased cap to apply, the plan must be amended (generally by December 31, 2022). The Notice makes clear that a failure to timely amend in that situation may result in a plan operational error.
- Safe Harbor Notice Requirements. The guidance clarifies that a notice may still be required for certain plans, even if the plan is designed to provide non-elective contributions to satisfy the safe harbor requirements.
- The safe harbor notice requirement continues to apply to traditional safe harbor plans that provide safe harbor non-elective contributions if the plan also provides non-safe harbor matching contributions that are designed so that they are not required to satisfy the ACP test.
- The safe harbor notice requirements continues to apply to plans that have an eligible contribution arrangement (or “EACA”) (i.e., those plans that provide for the permissive withdrawal of automatic contributions within 90 days) with a non-elective contribution that satisfies either the traditional or QACA safe harbor requirements.
The Notice also addresses how a plan sponsor would provide notice to preserve the right to reduce or suspend safe harbor non-elective contributions mid-year if a safe harbor notice is no longer required. Generally, under IRS rules, a plan sponsor may reduce or suspend safe harbor contributions mid-year if it includes a statement in the safe harbor notice that the contributions could be suspended midyear. (If this statement is not included in the safe harbor notice, then the plan sponsor must be able to show that it is operating at an economic loss to suspend the contributions.) The guidance states that including this suspension statement in any type of notice is acceptable, and that for the 2021 plan year, a notice with the suspension statement may be provided as late as January 31, 2021 for a calendar year plan.
- Retroactive Safe Harbor Status. The Notice also includes several helpful questions and answers addressing the retroactive adoption of safe harbor non-elective contributions:
- Plan sponsors may re-adopt a non-elective safe harbor formula for the entirety of the plan year after reducing or suspending non-elective safe harbor contributions mid-year. In this case, the plan is not required to satisfy the ADP or ACP test for the plan year.
- Safe harbor non-elective contributions must be made by the extended tax return due date in order to be deductible for the prior year. So, even though plan sponsors may now amend a plan after the end of the plan year to provide for 4% non-elective safe harbor contributions, these contributions will not be deductible for such prior plan year if made after the plan sponsor’s tax return due date. (Instead, they would be deductible for the taxable year in which they were contributed to the plan.)
The Notice indicates that the IRS does not intend this guidance to be the final word and that the IRS hopes to issue regulations related to the safe harbor changes found in the SECURE Act. We will be ready if and when those regulations are issued.
Seyfarth Synopsis: DOL final regulation on fiduciary implications of investing in ESG under review by the Biden administration.
You may recall our prior blog posts and Legal Update discussing the back-and-forth over the years surrounding the wisdom, or even ability, for plan fiduciaries to invest plan assets in funds with a strategy focused on factors such as environmental, social or corporate governance, sustainability or religion — the so-called ESG factors. See our blog posts here and here, and our Update here.
When we left you last, in November 2020, the DOL had finalized its regulation that basically came down on the side that ESG factors are non-pecuniary and it would be inappropriate for fiduciaries to make investment decisions based on non-pecuniary factors. This was in the face of voluminous criticism received from the investing community.
Well, this regulation is listed here among those that the Biden administration wants reviewed in accordance with the Executive Order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” In addition, the White House issued a memo to all agency heads to “consider” postponing for 60-days rules that have published rules but have not yet taken effect.
So, stay tuned!
Seyfarth Synopsis: The Supreme Court has shown a recent reluctance, as a general matter, to expand the scope of its review. That reluctance should apply as well to cases that seek to extend the scope and enforcement of ERISA.
Is there a connection between — the Supreme Court’s December 2020 decisions dismissing Presidential election lawsuits and the Presidential policy of excluding from census apportionment immigrants not considered to be in lawful status, on the one hand, and ERISA jurisprudence, on the other hand?
These recent Supreme Court decisions reveal a strong majority of Justices who believe federal court jurisdiction is limited, and dramatically so. Texas v. Pennsylvania, challenged, among other things, the lack of compliance with state legislative election law. Seven of the nine justices ruled that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In the immigration census decision, Trump v. New York, six justices ruled the case non-justiciable. They relied on two related doctrines — standing and ripeness. On standing, the majority said that a case must demonstrate “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” On ripeness, they said that any case must not be dependent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” To be sure, these cases may yet wind their way back to the Court for a review on the merits, but the route will be a bumpy one.
This judicial reluctance to rock the boat applies to ERISA jurisprudence as well. In Rutledge v. Pharmaceutical Care Management Association (No. 18-540), the Supreme Court refused to strike down an Arkansas PBM law on ERISA preemption grounds. The decision was unanimous. See SCOTUS Upholds Arkansas PBM Law Against ERISA Preemption Arguments | Beneficially Yours.
Commentators have noted that Justice Roberts, in particular, employs a strong philosophy of judicial deference or restraint. His view is that the people should take their complaints to the ballot box, not the courthouse. Enough of his fellow conservatives on the Court are often persuaded to agree, notwithstanding calls for a more aggressive Court.
So, as a general matter, private lawsuits that are commenced to “make new law” may increasingly be commenced in state court. ERISA lawsuits are not so easily accommodated via state litigation, however. All ERISA claims, other than claims for benefits, must be commenced in federal court. 29 U.S.C. 1132(e)(1). As we have noted previously, when commenting on the Spokeo and Thole standing decisions, a number of technical ERISA violations, including some fiduciary breach claims, may be beyond the reach of private plaintiffs. See Spokeo and the Future of ERISA Litigation | Beneficially Yours; The Supreme Court Further Narrows Federal Court Jurisdiction Over an ERISA Complaint, Relying on Article III of the Constitution | Beneficially Yours. And ERISA limits remedies, see Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985), and that can make it tough to allege concrete injuries for technical violations.
It remains to be seen, of course, how aggressive the Department of Labor will be in enforcing ERISA violations under President Biden. But private ERISA plaintiffs trying to extend the scope and enforcement of ERISA will have a tougher time making their case to the Supreme Court.