Startups and small organizations (those with under 100 employees) face a unique set of challenges when designing competitive, impactful, and cost-conscious employee benefits programs. How can your benefits help attract talent in a hyper-competitive market? How do you create long-term goals while answering short-term needs? What solutions exist to help you do the job of many? Join us for an in-depth strategy session all about building an effective benefits program that works hard for your small business and your people. In this pre-recorded webinar, we cover:

• Recruiting and Attracting Talent
• Rating structure and strategy
• Long Range Goals
• Carrier Market
• Tech Solutions
• Small Group Landscape
• Location, remote work force
• Participation
• Ancillary Coverage
• Role of the broker

The IRS has issued additional guidance (Notice 2021-46) related to ARPA premium subsidies. Much of the guidance is very detailed and applicable to narrow situations. However, several questions are more widely applicable. Following is a summary of the items that would be of general interest to most employers.

ARPA Subsidy for Longer-than-18-Month COBRA Events

If the original qualifying event was a reduction in hours or an involuntary termination of employment, the COBRA subsidy is available to an individual who is entitled to elect COBRA continuation coverage for an extended period due to a disability determination, second qualifying event, or an extension under State mini-COBRA. The extended period of coverage must fall between April 1, 2021 and September 30, 2021. However, the subsidy is available even if the individual had not notified the plan or insurer of the intent to elect extended COBRA continuation coverage before the start of that period.

Disqualifying Coverage

Eligibility for the COBRA subsidy ends when an Assistance Eligible Individual becomes eligible for coverage under any other disqualifying group health plan or Medicare. This is true even if the other coverage does not include all of the benefits provided by the previously elected COBRA continuation coverage. For example, eligibility for Medicare, which generally does not provide vision or dental coverage, ends eligibility for the premium subsidy related to all previously elected COBRA continuation coverage.

Controlled Groups

If a plan subject to Federal COBRA covers employees of who are members of a controlled group, each employer that is a member of the controlled group is the premium payee entitled to claim the COBRA subsidy with respect to its employees or former employees. Although all of the members of a controlled group are treated as a single employer for employee benefit purposes, each is a separate employer for employment tax purposes.

Business Reorganization

In the event of a business reorganization (stock or asset sale), if the selling group remains obligated to make COBRA coverage available to M&A qualified beneficiaries, the entity in the selling group that maintains the group health plan is the premium payee entitled to claim the COBRA subsidy. If the employer (which may be an entity in the buying group) is not obligated to make COBRA continuation coverage available to Assistance Eligible Individuals, the employer is not entitled to the COBRA subsidy after the business reorganization.

Updated Form 941

The IRS has released an updated draft of the 2021 Form 941, the Employer’s Quarterly Federal Tax Return. This updated draft now includes fields for taking a tax credit for ARPA COBRA subsidies.

Quick ARPA Recap

ARPA provides for a 100% COBRA subsidy for eligible individuals who experience a reduction in hours or an involuntary termination of employment. The potential subsidy period runs from April 1, 2021 through September 30, 2021 (subject to the regular end date of COBRA coverage). Logistically, Assistance Eligible Individuals are “deemed” to have paid their COBRA premiums, and employers are then entitled to take a tax credit for the subsidized COBRA premiums.

How To Claim the Tax Credit

Employers claim the tax credit for the subsidized (deemed paid, but not actually received) COBRA premiums on the quarterly Form 941. Credits are available against the employer portion of Medicare taxes owed. If insufficient Medicare taxes are owed, employers claim against future Medicare tax liability.

Notable Fields on New Form

Line 11(e): Fill in non-refundable credits. These are credits taken directly against the employer portion of Medicare taxes that is owed.

Line 11(f): Fill in the number of Individuals for whom a COBRA premium subsidy was provided.

Line 13(d): Fill in refundable credits. These are credits which are claimed against a future Medicare tax liability. The refundable portion of the credit is allowed after the employer share of Medicare tax is reduced to zero by nonrefundable credits.

Timing

The quarter ending June 30, 2021 will be the first period for which employers can claim credit for ARPA COBRA subsidies. Employers should plan on confirming that their COBRA administrator will be providing documentation of the total ARPA subsidy amount and the number of ARPA subsidized individuals.

The IRS recently issued Notice 2021-31, which provides much-anticipated guidance for employers on the ARPA COBRA subsidy. The document is 40+ pages long, and the nature of much of the guidance is very detailed, very nuanced, and very narrow. It presents a plethora of situations, many of which most employers will not need to deal with directly or which only serve to clarify otherwise intuitive lines of thought. Add its sheer length, and you have a document that cannot be easily condensed or summarized into a short, meaningful article.

That said, following are 15 key takeaways that are relevant for employers. They are presented in a short format for easy consumption, with references to the specific FAQ document those that want to dive deeper. The summary is presented in the order of the FAQ document. However, we have also highlighted five items as “Critical Issue.” These reflect guidance which is either critical or surprising in nature.

Background on ARPA Subsidies

As a recap, ARPA provides a 100% COBRA premium subsidy for individuals who lost coverage due to a reduction in hours or due to an involuntary termination of employment (Assistance Eligible Individuals or AEIs). The premium subsidy is available for medical, dental, vision, HRA, and EAP coverages for up to six months, from April 1, 2021, through September 30, 2021. ARPA provides that COBRA premiums are “presumed paid” by AEIs and the employer (or insurer) to whom the premiums were to be paid is entitled to a tax credit against its share of Medicare taxes.

Key Takeaway #1: Self-Certification or Attestation   (CRITICAL ISSUE) 

Employers may require individuals to self-certify or attest to being eligible for the subsidy and not being eligible for another group health plan or Medicare. Employers may rely on this attestation for the purposes of claiming the tax credit. In an odd twist of wording, the IRS indicates that employers are not required to secure an attestation from AEIs, however, they ARE required to maintain documented proof and substantiation in order to claim the tax credit. COBRA reporting of AEIs that have provided attestation will suffice for this documentation. (Q-4, Q-5, Q6)

Key Takeaway #2: Waiting Period for New Coverage

If an AEI is “eligible for” other group health plan coverage but that plan has a waiting period, the subsidy can continue during the waiting period. (Q-9)

Key Takeaway #3: Exchange Coverage

If a Qualified Beneficiary is currently covered under an individual policy through a Health Insurance Exchange, they are eligible to drop the Exchange coverage, re-elect COBRA coverage, and receive the subsidy. (Q-13)

Key Takeaway #4: Retiree Coverage

If an individual would otherwise be an AEI but has access to retiree coverage, eligibility for the retiree coverage is not a disqualifying event so long as the retiree coverage is offered under the same group health plan as is provided for active employees. The premium credit would be limited to the premium for active employees. (Q-18, Q-36)

Key Takeaway #5: Only Spouse and Children (Not DPs )  (CRITICAL ISSUE) 

Only a spouse or children who were covered on the day before the Qualifying Event (or a child born to or adopted by the covered employee during the COBRA period) are eligible for the subsidy. Other dependents, even though they may be eligible for coverage are not eligible for the subsidy. Of note here is coverage for Domestic Partners who may be covered under COBRA coverage, but who are not considered Qualified Beneficiaries under the COBRA law. This means they are not eligible for the subsidy. (Q-19)

Key Takeaway #6: What Constitutes an Involuntary Termination

There are 11 questions which outline various permutations of what constitutes an involuntary termination. Generally, these fall in line with a colloquial understanding of an involuntary termination. However, if unique circumstances arise, employers should review these questions for confirmation. (Q-24-Q-34)

Key Takeaway #7: No Partial Subsidy for Richer Plan Coverage  (CRITICAL ISSUE) 

If an employer allows a special enrollment and an employee elects a richer plan, the subsidy is not available for the equivalent cost of coverage under the base plan (with the employee paying the buy-up cost). To be clear, while not intuitive, no subsidy would be available if the employee elected a richer plan. There is an exception to this rule if the base plan is no longer available. In that case, the individual must be offered coverage under the “most similar” plan. (Q-41, Q-42)

Key Takeaway #8: Employer No Longer Subject to Federal COBRA

Key Takeaway #9: Extended Election Only Applies to Federal COBRA

The extended election period (where QBs can jump back onto COBRA) only applies to federal COBRA, not to state COBRA-lookalike laws, unless the state law specifically provides for such a provision.

Key Takeaway #10: Extended Deadlines Don’t Apply

The election period for the ARPA extended election period is 60 days from receiving formal notification in order to receive the subsidy. The Emergency Relief Notice provisions which allow for extensions of timeframes for COBRA elections, extended payment deadlines, and non-contiguous retroactive coverage for COBRA elections do not apply. (Q56-Q59)

Key Takeaway #11: Subsidized Amount Is 102%

The subsidized amount is the full premium (or premium equivalent) plus the statutory 2% COBRA administration fee. (Q-63)

Key Takeaway #12: Employer Subsidies Don’t Qualify for ARPA Subsidy  (CRITICAL ISSUE) 

Employers who have provided any direct, pre-existing COBRA subsidy are NOT entitled to recoup any portion of their direct subsidy via the ARPA subsidy program. If an employer subsidy expires during the ARPA subsidy period, the employee would then be eligible for the ARPA subsidy. If an employer subsidized a portion of the COBRA premium, the AEI is eligible for an ARPA subsidy for the premium amount that was required to be paid by the Qualified Beneficiary. (Q-64)

Key Takeaway #13: Subsidy Calculations for Non-AEIs  (CRITICAL ISSUE) 

If an AEI also covers a non-AEI (for example, a DP or spouse who was added after the Qualifying Event), the amount of the subsidy calculation is based on the premium differential for those who are AEIs and those who are not. Here, an example is instructive. Assume the employee, DP, and 2 children are covered. The EE+Sp/DP+Child(ren) premium is $1,800, and the EE+ Child(ren) premium is $1,300. The amount of the ARPA subsidy would be $1,300 and the $500 cost attributable to the DP would not be subsidized. Alternatively, assume a 3-tier EE+2+ premium of $1,800, the subsidy for EE+Child(ren) coverage would be $1,800, and the DP would be covered at no additional cost. (Q-68)

Key Takeaway #14: Timing and Method of Tax Credit

Employers become entitled to the tax credit at the point when an election is made (for retroactive months) and on the first of each month thereafter for prospective months. The tax credit is taken against the employer portion of Medicare taxes on Form 941, Employer Quarterly Federal Tax Return. Employers may reduce their federal tax deposits up to the amount of the credit and/or request an advance (on Form 7200) of the amount if the credit exceeds the federal tax deposits. Note that tax credits taken are includible in gross income for employers. (Q-74, Q-75, Q-79)

Key Takeaway #15: No Tax Credit Refunds Required

If an AEI fails to provide notice that they are no longer eligible for the subsidy in a timely manner, the employer is still entitled to a previously taken tax credit (unless the employer knew of the individual’s eligibility for other coverage). (Q-78)

Earlier this month, the City of San Francisco waived the 2020 reporting requirement for the Health Care Security and Fair Chance Ordinances. This marks the second year in a row that the reporting requirement has been waived due to the Public Health Emergency. This is welcome relief for employers who employ workers in the City and County of San Francisco.

As a reminder, this reporting reprieve does not waive the requirement to comply with all other aspects of the ordinances. If you have questions about your need to comply, please reach out to your Vita Account Manager.

Blue Cross and Blue Shield companies reached an agreement on October 30, 2020 to settle a legal dispute challenging elements of Blue Cross Blue Shield Association licensing agreements. After eight years of litigation, the Blue Cross Blue Shield Association did not admit fault, but they did agree to a settlement to end litigation. In the settlement, BCBS agreed to make operational changes as well as to provide payment to members of the class involved in the case. The settlement agreement amount is $2.67 billion. This is a very significant settlement amount and has garnered the attention of many employers, individuals, and attorneys.

Who are potential class members?

Potential members of the class include the following groups to the extent they were covered by a BCBS health policy during the covered period:

• Individuals and insured group health plans between February 8, 2008 and October 16, 2020.
• Self-funded plans between September 1, 2015 and October 16, 2020.
  
  

What do Employers Need to Do? 

Potential Class Members will receive a formal notification via mail or email. In addition to your notification as an employer, many of your employees will also receive notification directly. Although you are not obligated to notify employees of the settlement, we understand the direct communication from the Claim Administrator to employees is likely to spark many questions back to HR. 

Vita drafted sample communication you may choose to send to your employees about the settlement; please reach out to your Vita account manager or click “Contact Us” on our website if you have any questions or if you did not receive a copy of the sample employee-facing communication.  

It is also possible to opt into the lawsuit as a member via the link on the settlement website (www.BCBSsettlement.com). (Link) www.BCBSsettlement.com 

What do Employees need to do?

Employees who were covered under your health plan will be receiving notification of the settlement and of their option to file a claim directly.  If employees wish to file a claim, they can do so on the official settlement website or via mail. Although the online claim form has many optional fields, the following are the only required fields:  

• Personal identifying information (name and contact details) 
• Health plan name selected from a dropdown menu 

• Employer name for the group policy 
• Payment elections and review/signature 

Importantly, the detailed policy information, coverage date information, and premium allocation does not need to be completed.   

Sharing the Settlement with Employees

If an employer group health plan receives a settlement amount, will it be necessary to share the proceeds of the settlement with employees? According to the settlement site’s FAQ (#35), no. Since employees are eligible to participate in the settlement directly and receive a payment for their estimated portion of premiums, employers can retain any settlement they receive if they choose to file a claim. 

Realistically, how much might we get?

This is the key question that everyone is asking. And the answer is that it is VERY difficult to tell because it is based on the number of respondents that join the lawsuit as class members. But, in the interest of trying to apply some measure of thought to the otherwise completely unknown equation, we share some “back of the napkin” thoughts . . . with the understanding that no one has ANY real idea and that these numbers may be completely off base.

General Calculations

• 158,000,000: People covered by Employer sponsored plans. This rough analysis does not include individual plans or ASO plans. (Source: Kaiser Family Foundation)
• 52,666,667: People covered by a BCBS plan (1 in 3)
• $2,677,000,000: Total settlement amount
• $1,900,000,000: Expected approximate distributable settlement (those who submit a valid, timely claim)
• $146,154,000: Approximate award per year of coverage (13 years)
• $2.78: Total award per year / Total people covered per year*

*Assuming all group health plan claimants file, but not considering individual plans or ASO contracts. Adding these elements would further reduce the total award per year per person covered.

Example Application to Employer Plan

• 100: Employees
• $278: For employer per year
• 5: Years of coverage
• $1,387: Potential total award
  
  

Dilute for Employee Contributions

• If employees contributed to health plan via contributions, settlement proceeds would need to be passed through to plan participants.
  
  

Enhance If Less Than 100% of Claimants Join Lawsuit

• Unweighted average claimants per class action suit = 21%
• Unweighted medium claimants per class action suit = 8%
• However, most potential class members in class action lawsuits are simply just letter or postcard. This suit is a very high profile one with lots of media coverage. Also, the bulk is employer based, so single employers will be collecting for groups of employees. Add to that the reality that essentially all large plans with significant potential settlements will certainly file, thus bringing up the both the average and the medium numbers. Thus, it is expected that a significantly higher than average number of claimants will file. This means that the potential award per employee per year will likely remain low (because we can assume that essentially all large stakeholders will join).

Do I need an Attorney or a Firm for Representation?

Be aware that there are a number of law firms that are reaching out to potential members of the class and offering representation services with the promise of streamlining the process. Essentially all such firms offer their services on a no-up-front-cost, contingency basis. Some even offer advance payments of the estimated expected settlement distributions. The fee for this service is typically 20% of the settlement amount.

It is important to be aware that you do not need to retain the services of such a law firm in order to receive a potential benefit. You can “go direct” (as most class members do) and simply register as a member of the Class Action group directly on the formal website.

Important Dates

While the formal notice materials outline full details about timing, following is a summary of key dates:

• Spring 2021: Formal notices sent (Some employers have indicated already receiving their notifications)
• July 28, 2021: Deadline to Opt Out of Class Action Suit
• November 5, 2021: Deadline to file to participate in the Class Action Suit
  
  

Tips for Filing a Claim

If you receive a formal notification, look for the Unique ID. While it is not absolutely necessary, having the Unique ID will make it easier to file a claim.

Postcard Notice looks like this:

Email Notice looks like this:

The online claim form has many optional fields for both employers and employees, which is likely to spark questions from your work force. For example, the following are optional fields: member ID, group #, coverage dates, and allocation of premiums. Employees will be able to submit their online claim form without this information.  

Required fields include the Health Plan Name (selected from a drop-down menu) and Employer Name. Employers may wish to proactively provide this information to employees to mitigate the number of questions received from individuals.

Formal References

Formal resources for the class action lawsuit can be found below. The website includes Frequently Asked Questions, important reference documents, and a link to file a claim.

• Phone: 888-681-1142
• Web: www.BCBSsettlement.com
• Fact Sheet
• Formal Notice
  
  

BCBS Lawsuit: The Details

The Litigation

The litigation was particularly hard-fought and expensive, with the production of over 15 million pages of documents, over 120 depositions, and over a dozen motions to dismiss the plaintiffs’ claims. The unique nature of this anti-trust lawsuit has been characterized in court papers as “historic.”

What Was Alleged?

This lawsuit alleges violations of the antitrust laws by the Blue Cross Blue Shield Association of health plans. It purports that that BCBS companies colluded to create territories within the US, an act that would be in violation of antitrust laws. The claim was that this resulted in individuals, insured group health plans, and self-funded plans paying higher premium and ASO costs than they would in a competitive market.

Nitty Gritty Anti-Competition Details

In addition to the settlement payment of nearly $2.7 billion to the class plaintiffs, BCBS agreed to modification of alleged anticompetitive practices. Specifically, BCBS agreed to remove two of the mechanisms that are “pretty flatly anticompetitive” with regard to Blue plan subscribers. First, the agreement would remove a BCBS Association rule that requires two-thirds of each Blue insurer’s total national revenue to come from Blue-branded plans. Second, BCBS agreed to remove the existing setup that requires national employer subscribers to work with a Blue insurer that covers the location of the employer’s headquarters. This new agreement would allow competition between a smaller, in-state Blue insurer and other out-of-state Blue insurer for large national employers.

Potential Marketplace Impact

While the monetary settlement in this case is significant, equally so is the potential impact on health insurance markets going forward. It is clear that there will be greater competition among the various BCBS companies going forward. However, potentially equally significant is that the new BCBS competition will likely stimulate a competitive response from other national and regional health insurance companies.

The IRS released Announcement 2021-7 which newly includes amounts paid for Personal Protective Equipment (PPE) as qualified medical expenses.

Which Types of PPE are eligible?

PPE such as masks, hand sanitizer, and sanitizing wipes are now eligible. The announcement does specify that the primary purpose of the PPE must be to prevent the spread of COVID-19.

Which Plans?

Technically, PPE was added as qualified medical expenses under IRC §213. Practically, this means that they are eligible under health FSAs, HSAs, and HRAs (if the HRA is structured to allow expenses beyond copays, deductibles, etc.).

Effective Date

Plans can be amended retroactively to January 1, 2020. To the extent that plans do not need to be formally amended, claims for PPE expenses would be eligible retroactively as well.

Plan Amendments

The IRS notice outlines that plans (including health FSAs and HRAs) need to be amended if they specifically prohibit reimbursement of PPE. Vita Flex Summary Plan Descriptions (SPDs) reference IRC §213 for eligible expense determinations, so Vita Flex plans will not require a specific amendment. Other plan communication materials currently list PPE as not eligible, so those materials will simply be updated by Vita.

If a non-Vita Flex plan would need to be formally amended, the amendment can be retroactive. Such an amendment must be adopted no later than December 31, 2022 (in most circumstances).

Participant Communication

Employers should communicate the change in PPE eligibility. The Vita Flex participant portal is being updated with a banner to reflect this change in eligibility.

No Double Dipping on Tax Return

If the expense is reimbursed under an account-based plan, it is not deductible for the taxpayer under Section 213 (to the extent that the total medical expenses exceed 7.5% of the taxpayer’s adjusted gross income). In other words, no double dipping on the deductible expenses.

COVID has dramatically changed the workplace. Continued changes and long-term impacts around employee rights to leave, accommodations and more are sure to affect our world. Join Marjory Robertson, Assistant Vice President & Senior Counsel at Sun Life Financial, as she discusses a variety of employment law and compliance requirements, and likely absence and accommodation-related developments during 2021 under a new federal administration. She covers issues raised under the ADA, OSHA, FMLA, FLSA and other federal and state laws.
Note: The content of this presentation is not to be considered legal advice. We recommend Clients speak with legal counsel specializing in labor and employment law to ensure your organization meets requirements.

The American Rescue Plan Act of 2021 is a massive piece of legislation (591 pages long!) that includes a plethora of relief measures that impact nearly every segment of society, including several that affect employers and their employee benefit programs. View this on-demand presentation highlighting the key employer provisions, including the COBRA Subsidy and the Dependent Care Max Increase. We outline employers' required critical actions and discuss Vita's administration solutions.

Employer Resources

• American Rescue Plan Act: Employer Checklist
• American Rescue Plan Act: Key Employer Provisions

President Biden signed the American Rescue Plan Act of 2021 into law on March 11. It provides $1.9 trillion in coronavirus relief. The bill itself is 591 pages long with a Table of Contents that is seven pages long! It includes a plethora of relief measures that impact nearly every segment of society. Importantly, there are also critical measures in the bill that impact employers and their employee benefit programs. Following is a summary that highlights the key provisions that affect employee benefit plans.

COBRA Subsidies

100% Subsidy: The bill provides a 100% premium subsidy for COBRA coverage from April 1, 2021 to September 30, 2021.

Assistance-Eligible Individuals: Eligible individuals are those whose Qualifying Event was a termination of employment (other than for gross misconduct) or a reduction in hours. If the event is a Termination, it must be an involuntary termination of employment. Individuals must have active COBRA coverage (or be eligible to elect COBRA coverage) on or after April 1, 2021.

Coverages Included: The law refers to “any premium” and does not make an expressed differentiation between medical plan coverage and other health plan coverages that are subject to COBRA. Therefore medical, dental, vision, and EAP premiums would be subsidized. FSA plans are not subsidized.

Extended Election Period: A Qualified Beneficiary who previously did not elect COBRA or discontinued coverage, but who would otherwise be an assistance-eligible individual, is still eligible for the subsidy (assuming they are still within their maximum COBRA coverage period). These individuals must be given a 60-day election period which is measured from the later of April 1, 2021 or 60 days after notification of the new election opportunity is provided. The effective date for an election pursuant to the extended election period is April 1, 2021. The maximum duration of such coverage maps back to the original maximum coverage period. Notably, the extended election period provision creates an important deviation from the general COBRA rule that coverage needs to be continuous. In this case, an individual could “jump back on” to COBRA coverage as of April 1, 2021 without coverage being retroactive and without having to pay retroactive premiums.

All Qualified Beneficiaries who were covered at the time of the original Qualifying Event would be eligible to elect coverage under the extended election period. This is true regardless of whether all, some, or none of them had actually elected COBRA coverage at the time of the initial Qualifying Event and/or whether any of them were still covered as of April 1, 2021. As an example, if an employee had family coverage in place at the time of the Qualifying Event and elected employee only coverage under COBRA, all of the other family members would have a right to elect coverage under this new extended election period. 

Subsidy Disqualifying Events: If an assistance-eligible individual becomes eligible (just eligible, not actually covered) under any of the following plans, the subsidy ends.

To underscore, if a Qualified Beneficiary is eligible for another employer’s group health plan or a spouse’s group health plan, they would not be eligible for the subsidy. From an administration point of view, this will likely require a monthly attestation on the part of the assistance-eligible individual that they have not become eligible for any of the prohibited coverages.

Lastly, if a Qualified Beneficiary reaches their COBRA maximum coverage period while in the subsidy period, the subsidy will end. In other words, the existence of the subsidy does not change the maximum duration of COBRA.

Plan Change Opportunity: The law allows assistance-eligible Qualified Beneficiaries to enroll in a different employer-sponsored plan provided:

• The employer elects to permit such change in enrollment.
• The new premium does not exceed the premium of the original plan at the time of the qualifying event.
• The different coverage is also offered to similarly situated active employees.
• The different coverage does not consist of: excepted benefits only (such as dental and vision), QSEHRA coverage, or an FSA.

Ultimately, this provision allows employers to effectively offer a plan change opportunity for assistance-eligible individuals. Notably, this would not be a true open enrollment where someone could add dependents to their COBRA coverage. Rather, it would be an opportunity for a QB to change coverage from, say, a PPO plan to an HMO plan. If offering the plan change opportunity is desired, employers should confirm it will be allowed by their insurance carriers/contracts.
Decision Point: Employers will need to decide whether to offer this flexibility or not.

Termination Type Needed! Current COBRA administration processes (and data requirements) do not differentiate between voluntary and involuntary termination or reduction of hours. This distinction is critical for administering this provision.
Action Item: Employers will need to provide data for each termination Qualifying Event as to whether the event was voluntary or involuntary.

Notification Requirements: Employers must provide formal notification of these provisions to assistance-eligible individuals, including those in their 60-day election period and Qualified Beneficiaries who would still be in their COBRA maximum coverage period but either never elected COBRA or dropped coverage at an earlier date. The law outlines specific elements which must be included in the notice, the most important of which are the availability of the premium subsidy, the extended election period, subsidy disqualifying events, and the plan change opportunity (if the employer elects to extend this option). The deadline for notification is May 30, 2021 for those who are eligible for an extended election period. Employers must also notify assistance-eligible individuals that their subsidy is expiring between 45 days and 15 days prior to the end of the subsidy. The DOL will be issuing model notices for both the initial subsidy notification and the subsidy expiration notice.

Premium Recovery via Tax Credit: The bill provides that the mechanism for employers to recoup the subsidized premium is a tax credit against employment taxes. The timing is based on standard quarterly filings.

Vita COBRA Administration: The Vita COBRA team is already working hard to implement the system changes necessary to accommodate the premium subsidies. Most importantly, the type of termination will need to be confirmed. In addition, employers will need a report of subsidized COBRA premiums for assistance-eligible QBs to calculate and document the tax credit that should be recovered via the employment tax credit.

Dependent Care FSA Maximum Increased to $10,500

The maximum election amount for dependent care FSA is increased to $10,500 (from $5,000). This increase is temporary and is only effective for the 2021 tax year. The increased maximum is an employer choice (not a mandatory provision), and employers may amend plans for 2021 retroactively. We anticipate this increase will be universally adopted. Be aware that this change will likely exacerbate discrimination testing failures for employers who have had difficulty passing the tests in the past. We also anticipate that, while the increase is only authorized for the current year, the higher limit will likely become the “foot in the door” that may pave the way for an extension of the increase into the future.
Decision Point: Employers will need to decide whether to increase the maximum on their plan.

Paid Sick Leave

The bill provides an extension and expansion of the paid sick and Emergency FMLA tax credits created in the FFCRA. It allows (but does not require) employers to extend paid sick leave to employees and extends the payroll tax credits for employers who provide the leave to employees. This provision applies to paid leaves effective April 1, 2021 and expires on September 30, 2021. For this period, the payroll tax credit may be taken against all payroll taxes (not just the 6.2% SS tax, like the prior legislation). The law also extends the duration of the paid family leave from 50 days to 60 days and restarts the 10-day limit on the amount of qualified sick leave wages with respect to each employee.

Summary of Other Provisions

The bill includes a host of other provisions to benefit individuals and businesses. Following is a very high-level summary of some of the other key provisions:

• Vaccines: Resources and support for COVID-19 vaccine manufacturing, distribution, administration, tracking, and accelerated research.
• Business Financial Support: Additional PPP funding and an expansion of the program to include some nonprofits that were previously not eligible. The Employee Retention Credit was also extended through 2021.
• State and Local Government Support: Financial support to bridge shortfalls in state and local governments’ budgets and to support school re-openings.
• Individual Relief: Additional $1,400 stimulus payments to supplement the $600 provided in December 2020. Additional $300 per week unemployment supplement. Expansion of Child Tax Credit from $2,000 to $3,000, with a higher credit of $3,600 for children under age 6 (this applies to the 2021 tax year only). Expansion of Child and Dependent Care Tax Credit ($4,000 for one child or $8,000 for two or more children). Increase in ACA premium subsidies (with a cap of 8.5% of household income). Homeowner assistance.
• Other Provisions: Clarifies that forgiven student loan debt will be tax-free (should a future debt cancelation program be implemented by Congress or via Executive Order). Incentives for states to expand Medicaid. SBA assistance for restaurants, bars, and shuttered venue operators.