Seyfarth Synopsis: HHS has announced that the COVID-19 Public Health Emergency (PHE) has been extended another 90 days, and will run until January 11, 2023.

Seyfarth Update: On January 11, 2023, HHS announced another extension of the PHE to April 11, 2023.

In response to the COVID-19 pandemic, two separate emergency declarations have been in effect: (1) the COVID-19 PHE and (2) the COVID-19 National Emergency. These emergency declarations provide different types of COVID-related relief for participants and group health plans. While the COVID-19 pandemic is winding down, these emergency declarations and their related relief remain in effect.

The COVID-19 Public Health Emergency

HHS first declared the COVID-19 PHE in January 2020. The COVID-19 PHE declarations last for 90 days unless an extension is granted. Since January 2020, the COVID-19 PHE has been renewed every 90 days.

HHS recently extended the COVID-19 PHE an additional 90 days. This means that the COVID-19 PHE will run until January 11, 2023, unless another extension is granted.

Accordingly, the COVID-19 PHE will permit the following COVID-related relief to continue into 2023:

  • COVID-19 Testing: in-network and out-of-network COVID-19 testing are at no cost to participants.
  • COVID-19 Vaccines: in-network COVID-19 vaccines are at no cost indefinitely, but after the end of the COVID-19 PHE, plans may impose cost-sharing for non-network administration.
  • Expanded Telehealth Coverage: telehealth coverage is permitted to be offered to employees whether or not the employee is enrolled in the employer’s medical plan.
  • SBC Advanced Notice Requirements: the SBC advanced notice requirements for mid-year changes are relaxed when necessary to implement COVID-19 coverages/benefits.

The Biden Administration has advised that it will provide at least 60 days’ advanced notice prior to allowing the PHE to expire, so unless the Administration provides such notice before mid-November, it is reasonable to assume the PHE will be extended again.

The COVID-19 National Emergency

Unlike the COVID-19 PHE, the COVID-19 National Emergency is declared by the President and the declarations last for one-year unless an extension is granted. On March 13, 2020, the COVID-19 National Emergency was announced, and it has been extended every year since. Currently, the COVID-19 National Emergency is set to expire on March 1, 2023.

The COVID-19 National Emergency gave rise to the “Outbreak Period” in which certain deadlines were extended to provide relief from COVID-19. The COVID-19 National Emergency will permit the Outbreak Period to continue into 2023, which will permit the following deadlines to be extended until the earlier of (a) one year after the deadline, or (b) 60 days after the end of the Outbreak Period:

  • COBRA election deadline
  • COBRA premium payment deadline
  • HIPAA special enrollment deadline
  • ERISA claims filing deadline
  • Fiduciary relief for delayed provision of notices

Keep in mind, the deadlines applicable to the Outbreak Period are determined on an individual by individual basis and cannot last more than one year from the date the individual or plan was first eligible for relief. For more information regarding the COVID-19 National Emergency and Outbreak Period, see our prior Legal Updates here and here.

Please contact the employee benefits attorney at Seyfarth Shaw LLP with whom you usually work if you have any questions regarding the COVID-19 PHE or COVID-19 National Emergency.

With interest rates on the rise, defined benefit pension plan sponsors and participants alike may be wondering how their pension plans and pension benefits are impacted. Rising interest rates lower lump sum values, which begs the question of who is impacted; the plan sponsor, the plan participant, or both? Do rising interest rates create any compliance issues? Does a pension plan sponsor have a legal obligation to explain to participants what rising interest rates will do? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Seyfarth Partner Adam Greetis about these pressing questions and more!

Click here to listen to the full episode.

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Seyfarth Synopsys: On September 26, 2022, the IRS issued Notice 2022-45, extending the deadline for amending retirement plans and individual retirement accounts (“IRAs”) for optional changes under the CARES Act.

As we discussed in our prior blog post [here], on August 3, 2022. the IRS issued Notice 2022-33, extending the deadlines for amending retirement plans, 403(b) plans and individual retirement accounts (“IRAs”) for changes under the (i) Setting Every Community Up For Retirement Enhancement Act of 2019 (the “SECURE Act”); (ii) Bipartisan American Miners Act of 2019 (the “Miners Act”); and (iii) Section 2203 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). For most plans, the extension provided plan sponsors with an additional three years, until December 31, 2025, to amend plan documents to reflect most of the changes under these Acts.

Notably, the prior guidance did not extend the due date for optional CARES Act amendments, such as penalty-free coronavirus-related distributions, increased permissible loan amounts, and delayed repayment of loans. The deadline for those changes remained generally December 31, 2022.

Happily, on September 26, 2022, the IRS issued Notice 2022-45. The Notice extends the due date for optional CARES Act amendments to December 31, 2025 for nongovernmental qualified retirement plans and IRAs (including 401(k) plans and 403(b) plans not maintained by public schools). In addition, the Notice extends the amendment deadline for such plans for qualified disaster distribution provisions under the Taxpayer Certainty and Disaster Tax Relief Act (“Relief Act”) to December 31, 2025. The upshot to the Notice is that for these plans, all SECURE, Miners, CARES and Relief Act amendments can be adopted at the same time.

The Notice similarly extended the due date for optional CARES Act and Relief Act amendments for qualified governmental retirement plans, public school 403(b) plans and governmental 457(b) plans. The due date for these amendments is now generally the 90th day after the close of the of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023, which conforms to the due date previously announced for the other provisions of the Acts.

Tax exempt employers that sponsor 457(b) plans did not receive an extension to adopt SECURE Act amendments. These amendments include changes to required beginning dates and required minimum distributions. The due date for these amendments remains December 31, 2022.

On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health, overturning Roe v. Wade, abolishing the federal standard protecting the right to abortion. In the immediate aftermath of Dobbs, many states have raced to pass more restrictive laws against abortions, including some near-total bans. Several states had enacted “trigger bans” that would take effect automatically if the Supreme Court reached this result. Others have sought to reinstate pre-existing laws that had been unenforceable on constitutional grounds. In many states, however, Dobbs will not affect access to abortion because legislatures, courts, or voters have embedded this right in state codes or constitutional provisions.

Seyfarth is pleased to deliver a 50-State Survey of Reproductive Health Services on SeyfarthLean Consulting’s Survey Center. This state-by-state analysis allows tracks state laws and actions with a focus on employer considerations, such as which states criminalize aiding and abetting abortion services, and which states serve as “safe havens” for employers.

To request access to the Reproductive Health Services Tracker, click here.

Please contact a member of the Reproductive Health Law Advisory Team with questions. The situation remains fluid in many states, and the survey will be updated accordingly.

If you are a Seyfarth client with multi-state operations and are interested in password-protected access to other Survey Center employment law topics (non-public but available without charge to our clients), please reach out to your Seyfarth attorney for more information.

Termination of employment is a distribution event under many retirement plans, and particularly under individual account defined contribution plans. But what does it mean to terminate employment? Is there such a thing as a “sham” termination? It’s an important question for plans sponsors to consider before distributing a retirement benefit following the plan participant’s departure, as a distribution attributable to a termination that is not bona fide could be considered a plan disqualification defect, putting the plan’s tax-qualified status at risk. So how does a plan sponsor determine whether there was a “termination of employment” that constitutes a true distribution event? Does the possibility of being rehired put a distribution made on account of a prior termination of employment from that employer at risk? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Seyfarth Partner Christina Cerasale about these pressing questions and more!

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Seyfarth Synopsis: To promote healthier lifestyles in an effort to ultimately reduce the cost of health care in the United States, the Affordable Care Act (ACA) requires private health plans to provide first dollar coverage for evidence-based preventive care. As a result, such things as immunizations and cancer screenings must be covered without the requirement to pay a co-pay or meet a deductible. A recent decision by a federal district court in Texas allows employer plan sponsors to exclude coverage for certain preventive treatments to which they objected.

One of the results of this ACA preventive care requirement was to empower the Federal Government to deem certain medical treatments as being effective preventive care and thus necessary for coverage by group health plans. In Braidwood Management Inc v Becerra, 4:20-cv-00283 (N.D. TX), a Court found that an employer who objected to a certain preventive treatment on religious grounds could be exempted from offering that otherwise mandated treatment.

Specifically, in this matter the Court held that the professed Christian beliefs of a for-profit employer exempted it from providing PrEP, a medication that lowers the risk of HIV transmission by over 99%, despite coverage of PrEP being mandated as an effective preventive treatment under the Affordable Care Act. In reaching this holding, the Court noted that the employer objected to covering PrEP as:

[H]e believes that (1) the Bible is “the authoritative and inerrant word of God,” (2) the “Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,” (3) providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and (4) providing coverage of PrEP drugs in Braidwood’s self-insured plan would make him complicit in those behaviors.

The Government argued that the employer put forth no evidence that PrEP increased any of the activities to which it objected. The Court found that argument irrelevant, since the employer believed that PrEP had this impact. The Court also acknowledged that despite this religious objection, the Government had a compelling interest in mandating that benefit plans offer PrEP. However, the Court nevertheless found this compelling interest insufficient to trump the employer’s religious beliefs because the government did not prove how exempting religious for-profit employers from the mandate would impact the compelling interest of slowing/stopping HIV transmission. The Court further noted that the Government could simply solve the issue by paying for PrEP for individuals covered by a health program that did not cover PrEP.

This ruling is significant in that it shows the increasing tension in jurisprudence between public health of employees and society-at-large on the one hand and the religious rights of private employers on the other. Importantly, this line of case law could also raise tension under Title VII as Courts thread the permissibility of an employer’s religious belief to oppose homosexual behavior and its legal mandate not to discriminate against homosexual employees.

The impact of this ruling is not limited to PrEP. Rather, this ruling provides fertile ammunition for employers to argue that their religious beliefs justify their exemption from a whole host of otherwise required medical treatments, including birth control and Plan-B. Stay tuned as we continue to track legislation and court rulings that impact access to health care coverage.

Seyfarth Synopsis: The IRS has announced adjustments decreasing the affordability threshold for plan years beginning in 2023, which may cause employers to have to pay more for ACA compliant coverage in 2023.

The IRS recently released adjustments decreasing the affordability threshold for plan years beginning in 2023 in Revenue Procedure 2022-34.

Under the Affordable Care Act (ACA), applicable large employers (ALEs) that do not offer affordable minimum essential coverage to at least 95% of their full-time employees (and their dependents) under an eligible employer-sponsored health plan may be subject to an employer shared responsibility penalty. Generally speaking, coverage is affordable if the employee-required contribution for self-only coverage is no more than 9.5% (as adjusted each year) of the employee’s household income. The adjusted percentage for 2022 is 9.61%. For more information regarding the 2022 affordability threshold, see our prior Blog Post here.

Adjusted Percentage for 2023

Under Revenue Procedure 2022-34, the adjusted percentage for 2023 will be 9.12%. This is a decrease of 0.49% from the 2022 affordability threshold of 9.61%, and is the lowest affordability threshold to date by far.

Federal Poverty Line (FPL) Safe Harbor

Making calculations based on each employee’s household income would be administratively burdensome. Accordingly, there are three safe harbors for determining affordability based on a criterion other than an employee’s household income; namely an employee’s Form W-2 wages, an employee’s rate of pay, or the FPL. If one or more of the safe harbor methods can be satisfied, an offer of coverage is deemed affordable.

The FPL safe harbor is the easiest to apply, since an employer has to do just one calculation and can ignore employees’ actual wages, and is intended to provide employers with a predetermined maximum required employee contribution that will in all cases result in coverage being deemed affordable. Under the FPL safe harbor, employer-provided coverage offered to an employee is affordable if the employee’s monthly cost for self-only coverage does not exceed the adjusted percentage (9.12% for 2023) of the federal poverty line for a single individual, divided by 12. The federal poverty guidelines in effect 6 months before the beginning of the plan year may be used for an employer to establish contribution amounts before the plan’s open enrollment period.

For plan years beginning in 2023, a plan will meet the ACA affordability requirement under the FPL safe harbor if an employee’s required contribution for self-only coverage does not exceed $103.28 per month.

Given the large decrease in the adjusted percentage, employer-sponsored health coverage that was considered to be affordable prior to 2023 may no longer be considered affordable in 2023. Therefore, employers may have to pay more for ACA compliant employer-sponsored health coverage in 2023. If you have any concerns about the affordability of your health care coverage offerings, please reach out to one of our Employee Benefits attorneys directly.

Seyfarth Synopsis: On August 3, the IRS issued Notice 2022-33, extending the deadlines for amending retirement plans and individual retirement accounts (“IRAs”) for changes under the (i) Setting Every Community Up For Retirement Enhancement Act of 2019 (the “SECURE Act”); (ii) Bipartisan American Miners Act of 2019 (the “Miners Act”); and (iii) Section 2203 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which waived required minimum distributions for 2020. For most plans, the extension provides retirement plan sponsors with an additional three years, until December 31, 2025, to amend plan documents to reflect changes under these Acts. Over the past several months, we had heard from IRS representatives and industry groups that this extension was likely forthcoming, as we wait for additional guidance on some lingering questions that remain.

It seems like ages ago, but the SECURE Act and the Miners Act were signed into law on December 20, 2019, just before the outbreak of COVID-19 and the resulting pandemic. As detailed in our prior Legal Update, available here, the SECURE Act and the Miners Act contain a number of amendments to the Internal Revenue Code of 1986, as amended (the “Code”) and the Employee Retirement Income Security Act of 1974, as amended, that impact employer-sponsored retirement plans, including many important participant-facing changes.

After the SECURE Act’s enactment, a number of open questions remained about some of the more important changes that could potentially have a significant impact on plan administration, including provisions relating to the participation and vesting of long-term part-time workers and changes to the required minimum distribution (“RMD”) rules (e.g., elimination of the “stretch” IRA for most beneficiaries), and we anticipated the IRS would issue helpful guidance. That was pre-coronavirus. In the wake of the coronavirus pandemic beginning in early 2020, the CARES Act, enacted in March 2020, understandably took center stage, as legislators and plan sponsors focused on making it easier for participants to access retirement plan money from qualified plans.

Since 2020, the IRS has been hard at work issuing several pieces of guidance addressing a number of open questions relating to the SECURE Act, the Miners Act and the CARES Act, including Notices 2020-50, 2020-68 and 2020-86. Our prior Legal Updates and Blog Post discussing the Notices are available here, here, and here.

While many of our plan sponsor clients have already amended their retirement plans to reflect the loan and distribution relief under CARES Act, as well as the waiver of 2020 RMDs, many have pressed pause on amendments for certain changes under the SECURE Act, particularly the complex changes to the RMD rules. In February 2022, the IRS published proposed regulations for RMDs under Code Section 401(a)(9), and solicited comments. The proposed regulations are intended to reflect the changes made to the rules by the SECURE Act, and completely overhaul the current regulations. The proposed regulations do not, as we had hoped, include model “snap-on” amendments for retirement plans, as was provided in Revenue Procedures 2002-29 after the RMD regulations were last updated in 2001. Now that the IRS has extended the amendment deadlines, the hope is that in the interim, the IRS will issue more guidance that includes model amendments or sample language relating to the SECURE Act’s RMD changes.

The extended amendment deadlines are highlighted in the table below. Note that Notice 2022-33 does not extend the amendment deadline for the optional loan and withdrawal relief provisions of the CARES Act, which are still currently due by December 31, 2022 (for calendar year plans).

Please contact your Seyfarth Employee Benefits Attorney with any questions you may have about this guidance and its application to your plan. Please also be sure to register for our Coffee Talk With Benefits Podcast here, where we discuss interesting issues that our clients are facing, as well as breaking employee benefits developments. The podcast drops the first week of every month, and we have some very interesting topics in the pipeline!

Amendment Deadlines Chart


Type of Plan

SECURE Act and Miners Act

CARES Act Section 2203 Provisions Relating to 2020 RMD Waiver*

Old Deadline

Extended Deadline

Old Deadline

Extended Deadline

Nongovernmental Retirement Plans and IRAs (i.e., 401(k) and 403(b) not maintained by public school) Last day of first plan year beginning on or after January 1, 2022 (i.e., December 31, 2022 for calendar year plans) December 31, 2025 Last day of the first plan year beginning in 2022 (i.e., December 31, 2022 for calendar year plans) December 31, 2025
Collectively Bargained Plans Last day of first plan year beginning on or after January 1, 2024 (i.e., December 31, 2024 for calendar year plans) December 31, 2025 Last day of the first plan year beginning in 2022 (i.e., December 31, 2022 for calendar year plans) December 31, 2025
Governmental 414(d) Plans Last day of first plan year beginning on or after January 1, 2024 (i.e., December 31, 2024 for calendar year plans) 90 days after the close of the third regular legislative session of the body with the authority to amend the plan that begins after December 31, 2023 Last day of first plan year beginning in 2024 (i.e., December 31, 2024 for calendar year plans) 90 days after the close of the third regular legislative session of the body with the authority to amend the plan that begins after December 31, 2023
Governmental 457(b) Plans Last day of first plan year beginning on or after January 1, 2024 (i.e., December 31, 2024 for calendar year plans)** 90 days after the close of the third regular legislative session of the body with the authority to amend the plan that begins after December 31, 2023** Last day of first plan year beginning in 2024 (i.e., December 31, 2024 for calendar year plans) 90 days after the close of the third regular legislative session of the body with the authority to amend the plan that begins after December 31, 2023**

*Note, the deadline for adopting the optional loan and withdrawal relief provisions under the CARES Act has NOT been extended. The deadline for those changes is generally December 31, 2022 (for calendar year plans).

**Special deadline may apply if notified by IRS that the plan was administered in a manner that is inconsistent with requirements of Code Section 457(b).

Cybersecurity has become an integral concern for employers and employee benefit plans alike. With an increase in DOL cybersecurity audits, plan fiduciaries are looking to strengthen their cybersecurity practices more than ever before. What specific risks are plans facing? Who is responsible for keeping plans safe, and what legal duties do they have? What steps should plan fiduciaries take to ensure the safety of their plan? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Seyfarth colleague Benjamin Spater about these pressing questions and more!

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Seyfarth Synopsis: As more employers announce that they cover travel benefits under their medical plans that will allow participants to be reimbursed for certain travel expenses necessary in order to access otherwise covered medical benefits, proponents on the pro-choice and anti-abortion platforms seek ways to support or block those benefits.

In the weeks since the Dobbs decision was released, the ripple effects of the decision continue to arise in unexpected ways. Litigants are challenging as discriminatory under Title VII, employer travel benefits that enable employees to travel in order terminate pregnancies in states where it remains legal. Specifically, litigants have begun to assert that providing travel benefits for the purpose of terminating a pregnancy is unlawful if the employer does not also allow travel benefits for pregnant women who intend to carry their pregnancy to term.

There is a long history of employees using Title VII as a tool to ensure equal benefit treatment in situations where only certain classes of employees are eligible for a benefit. The nuance in the recent challenges are that employees during pregnancy do not typically need to travel for a benefits purpose (e.g., to receive adequate prenatal care). Further, to date these claims do not appear to be an allegation that only certain pregnant employees have access to a travel benefit to terminate a pregnancy. This makes the success of this type of claim far from certain. However, even if these cases are dismissed for failure to state a cognizable claim, this type of action remains significant in showing the new types of litigation claims that employers will need to contend with post-Dobbs. It is expected that other cases may be filed under Title VII asserting claims of religious discrimination. For instance, an employee may claim that their religious rights are being infringed on if they are tasked with approving abortion related travel benefits and abortion violates their religious beliefs.

To navigate this increasingly divisive environment, it remains a best practice to clearly communicate the scope of any post-Dobbs policy and to work with counsel to ensure that the policy is properly tailored to best mitigate litigation risk in a rapidly changing legal climate. Please stay tuned as we continue to provide updates on litigation and statutory trends post-Dobbs.