President Biden again formally extended the COVID-19 National Emergency (which was previously set to expire on March 1, 2022). Each National Emergency declaration generally lasts for one year unless the President announces an earlier termination or an extension (for up to another year). President Trump first declared the National Emergency on March 1, 2020. On Feb. 24, 2021, President Biden extended the National Emergency. Most recently, it was unclear whether President Biden would extend it again because, although many stakeholders requested another extension, the Biden administration is also facing some political pressure to move the country onto an "off-ramp" from the COVID-19 pandemic. Nonetheless, a formal extension was made. However, it is possible that President Biden could take action to end the National Emergency in the coming months (assuming COVID-19 cases, hospitalizations, and deaths continue to decline).
Employee Benefits Deadlines Will Be Further Tolled
As a result, the “tolling” of health, welfare, and retirement plan deadlines will also remain in effect. This means plan sponsors and administrators should continue to apply the deadline extensions to affected individuals on a participant-by-participant basis for the foreseeable future. This further extension means that the deadlines summarized below must continue to be tolled for one year or for 60 days from the end of the National Emergency (if President Biden declares an earlier end to the National Emergency).
The First Year of the National Emergency
Shortly after the COVID-19 pandemic began, joint guidance from the Department of Labor and the Department of the Treasury suspended, or “tolled,” certain deadlines for benefit plans and participants for the period beginning on March 1, 2020 and ending 60 days after the announced end of the National Emergency. This extension period is referred to as the “Outbreak Period.” The following deadlines were extended by the length of the Outbreak Period.
For Employers/Plan Sponsors:
- HIPAA Special Enrollment. The 30-day deadline (or 60-day deadline, in some instances) to request enrollment in a group health plan following the loss of other group health plan coverage, the acquisition of a new dependent through marriage, birth, adoption or placement for adoption or the eligibility for premium assistance through state premium assistance subsidy, Medicaid, or CHIP.
- COBRA Notifications (by Employee to Employer). The 60-day deadline by which individuals must notify the plan of certain COBRA-qualifying events (such as a divorce or a child losing eligibility as a dependent under the plan), or a Social Security Administration determination of disability.
- COBRA Elections. The 60-day deadline for electing COBRA coverage.
- COBRA Premium Payments. The 45-day (initial) and 30-day (subsequent monthly) COBRA premium payment deadlines.
- Benefit Claims and Appeals. The plan deadlines by which participants may file a claim for benefits (under the terms of the plan) and the deadline for appealing an adverse benefit determination. This includes extensions of claims filing deadlines for Health FSAs.
- External Review. The 4-month deadline by which a claimant must request an external review of a final determination on appeal.
- COBRA Notifications (by Employer to QB). The 14-day deadline to provide a COBRA election notice to qualified beneficiaries or the 44-day (14+30 days) deadline for employers who are plan administrators.
The Second Year of the National Emergency
Because the COVID-19 pandemic had not yet ended at the time the regulatory guidance was set to expire, the DOL issued additional guidance
in February 2021, providing that the deadlines would continue to be tolled, or remain disregarded, through the earlier of:
- One year from the date the individual was first entitled to the extension relief (i.e., a date on or after March 1, 2020).
- 60 days after the end of the National Emergency (i.e., the end of the Outbreak Period).
Importantly, the second year ushered in the position that the tolling period applies on a person-by-person basis. It can be challenging to track these deadlines when the tolling period applies, so plan administrators need to take care that they are calculating the deadlines correctly.
The Third Year of the National Emergency
While this latest extension of the National Emergency does not change the previous guidance, it does further extend the timeline of the tolling period; participants will continue to have more time to act on these deadlines than they normally would under the applicable plan terms. Note that the individualized tolling periods continue into the third year. Also, because the National Emergency’s end remains open at this time, exactly how long participants have under these deadlines remains a moving target until the National Emergency ends.
Different from the Public Health Emergency
Importantly, this National Emergency declaration is different from the Public Health Emergency declaration made by the Secretary of HHS, which is tied to the COVID-19 testing requirements in the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
The Public Health Emergency is set to expire on April 16, 2022. However, the Secretary may extend it for subsequent 90-day periods for as long as the public health emergency continues to exist or may terminate the declaration whenever it is determined that the public health emergency has ceased to exist.