On December 28, 2020, President Trump signed into law a $2.3 trillion dollar Omnibus Spending Bill.  The massive Omnibus Spending Bill contains several Acts, including the Continued Assistance to Unemployed Workers Act (“CAUWA”), mainly focusing on the expansion of federal unemployment relief and worker entitlements.

One of the highlights of CAUWA is the extension of the Families First Coronavirus Response Act (“FFCRA”) tax credit for employers through March 2021, without a corresponding extension of the mandated leave entitlements.  When FFCRA was first enacted, it required employers with 500 or fewer employees to provide both paid sick leave (“EPSL”) and paid family medical leave (“EFMLA”) in specific COVID-19 related circumstances.  Employers were then eligible for a dollar-for-dollar tax credit on amounts paid under the EPSL and EFMLA mandates.  FFCRA’s tax credit and mandate were set to expire on December 31, 2020.

As noted above, the CAUWA now gives employers the option to provide EPSL and EFMLA benefits and claim the dollar-for-dollar tax credit. Employers should be mindful that the extension of the tax credit does not seem to renew the EPSL time off entitlements.  Therefore, an employee who used all available EPSL time prior to December 31, 2020 would likely not be eligible for additional time off between January 1, 2021 and March 31, 2021 and the employer would likely not be eligible for a tax credit for additional hours taken.

On the face of the legislation, the EFMLA entitlements also do not seem to be extended.  However, the creation of EFMLA is tied to the existing FMLA structure giving rise to some concern that the EFMLA entitlements may reset if an employer’s underlying FMLA policy has also reset.   At this time, no guidance has been issued by the DOL or IRS on this point.

Employers who choose to extend the available FFCRA benefits should consider if they will offer only EPSL or EFMLA or both.  Any decision to extend one or both of the FFCRA benefits must apply to all employees.

Other benefits provided under CAUWA are extensions of Pandemic Unemployment Assistance, Federal Pandemic Unemployment Compensation (with a reduction in the weekly benefit from $600 to $300), and Pandemic Emergency Unemployment Compensation.  These extensions are effective through March 14, 2021; however, in limited circumstances some eligible individuals may be able to extend their benefits through April 5, 2021.  CAUWA also clarifies that business expenses paid with Paycheck Protection Program (“PPP”) funds are still eligible to be claimed on tax returns.

Any employer seeking to craft a policy to address the FFCRA benefits should consult with their legal team.  The Labor and Employment team at Carmody is here to assist with these questions and any other employment questions your business may have.

Stephanie E. Cummings practices with Carmody’s Labor and Employment team and has experience in a variety of additional areas such as corporate law, personal injury, real estate, trust and estates and general civil litigation. 

This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship. 

On Sunday night, President Trump signed into law the $2.3 trillion Omnibus Spending Bill, which includes $900 billion in funding for COVID-19 relief.  The massive bill encompasses various Acts including (1) the Continued Assistance to Unemployed Workers Act, (2) the Economic Aid to Hard Hit Small Businesses, Nonprofits and Venues Act, (3) the Taxpayer Certainty and Disaster Relief Act of 2020, and (4) the No Surprises Act. These Acts are summarized below.

The Continued Assistance to Unemployed Workers Act (CAUWA)

The CAUWA provides for an extension of the federal unemployment benefits originally provided under the CARES Act. It includes direct stimulus payments, amends the Families First Coronavirus Relief Act (FFCRA), and provides clarification on the tax implications associated with PPP forgiveness.

  • Unemployment Benefits

The CARES Act of March 2020 included the following federal unemployment benefits:

  1. The Pandemic Unemployment Assistance (PUA), which provided relief to those who are not typically qualified to receive state unemployment benefits,
  2. The Federal Pandemic Unemployment Compensation (FPUC), which provided federal unemployment dollars over and above state provided benefits, and
  3. The Pandemic Emergency Unemployment Compensation (PEUC), which provided benefits to those who have utilized all available state unemployment benefits.

These programs have now been extended through March 14, 2021. In certain circumstances, eligible individuals may be able to extend their benefits through April 5, 2021.

Notable changes include the reduction in FPUC from the $600 weekly federal benefit provided under the CARES Act to a $300 weekly federal benefit.  Also, CAUWA requires that unemployment applicants and recipients provide supporting documentation of their need for assistance.  States utilizing the federal funding must implement a system to identify and address employees refusing to return to work without good cause.

  • Stimulus Payments

CAUWA provides a federal stimulus direct payment of $600 to each eligible individual and $600 for each qualifying child. Individuals with an adjusted gross income of $75,000 or less are generally qualified to receive the entire benefit amount.

  • PPP Taxation

CAUWA clarifies that business expenses, claimed as “eligible expenditures” for PPP forgiveness, are also eligible to be written off as business expenses for tax purposes.

  • FFCRA

FFCRA, originally set to expire Thursday, required certain entities provide employees with up to 80 hours of paid sick leave and up to 10 weeks of paid family medical leave for qualifying reasons.  Covered employers were eligible for a dollar for dollar tax credit for any paid sick or family medical leave paid under FFCRA.  CAUWA extends the federal dollar for dollar tax credit to March 31, 2021 for benefits paid in accordance with the structure of the FFCRA program, but no longer requires that employers provide FFCRA benefits. Employees who have exhausted FFCRA benefits will not be eligible for additional FFCRA benefits.

The Economic Aid to Hard Hit Small Businesses, Nonprofits, and Venues Act

The Economic Aid to Hard Hit Small Businesses, Nonprofits and Venues Act (the “Economic Aid Act”) expands eligible PPP expenditures, creates a simplified forgiveness application for PPP loans under $150,000, clarifies eligible PPP payroll costs, creates the Second Draw Program, reauthorizes the PPP loan program, and extends federal payments on certain SBA loans.

  • Expansion of PPP Eligible Expenditures

The Economic Aid Act expands the list of eligible expenditures that will qualify for PPP forgiveness.  Newly eligible expenses under PPP now include: (1) operations expenses such as business software, cloud computing costs, payroll expenses, billing costs, inventory costs, etc.; (2) property damage caused by vandalism and looting that is not covered by insurance; (3) essential supplier costs that were contracted for prior to the covered loan period (or if for fresh produce contracted for during the covered loan period); and (4) PPE including creation of physical barriers, vent systems, expansion of indoor/outdoor business space, and offsite health screenings.

  • Simplified Loan Forgiveness

An entity receiving a loan of $150,000 or less will now be eligible to use a one page simplified forgiveness application. However, such entities are still subject to audit and are required to keep documentation on payroll expenses and employee counts for four years and other eligible expenses for three years after submission of the forgiveness application.

  • Clarification of PPP “Group Health Care Benefits”

The Economic Aid Act also clarifies that PPP payroll costs for “group health care benefits” include group life, disability, vision and dental insurance benefits.

  • Second Draw Program

The Economic Aid Act creates the Second Draw Program, a new funding resource for businesses that (1) used, or will use, all of their PPP funds, (2) employ less than 300 employees, and (3) experienced at least a 25% reduction in gross receipts in any 2020 quarter as compared with the same 2019 quarter. This program has further limitations over and above employee count and reduced gross receipts, including a prohibition on funding for think tanks, businesses created in China, or businesses with a Chinese citizen on its Board of Directors, among other limitations.

The maximum loan amount available under the Second Draw Program is generally calculated at the lesser of 2.5 times the monthly payroll costs or $2,000,000.  Specific funding rules and limitations apply for various employer types, such as seasonal employers and NAICS code 72 employers (restaurants and hospitality) among others.   The Economic Aid Act also creates a simplified lending process for those entities seeking a Second Draw loan of $150,000 or less.

  • Expansion of the PPP program

The Economic Aid Act addresses the situation where businesses initially applied for, or received less, than the maximum loan they were qualified to receive.  Under the Economic Aid Act, certain entities who have not yet sought forgiveness, are able to apply for additional monies to make up the difference between what the entity was initially granted and the maximum available.

Additionally, the Economic Aid Act reauthorizes the PPP program by providing $35 billion for first time PPP borrowers and $15 billion for first time PPP borrowers (1) with 10 employees or less or (2) located in low-income or moderate-income neighborhoods and seeking loans of $250,000 or less, among other funding.

  • Debt Relief Expansion

The Economic Aid Act expands federal payments towards qualifying SBA loans.  Businesses with current, eligible SBA loans will receive an additional three months of principal, interest and costs paid by the federal government beginning on February 1, 2021.  Businesses with eligible SBA loans in deferment will receive an additional three months of principal, interest and costs paid by the federal government after deferment ends.  Businesses that receive a new eligible SBA loan between February 1, 2021 and September 30, 2021 will receive the first six months of principal, interest and costs paid by the federal government.  The Economic Aid Act does provide some limitations, including that only one qualifying loan per entity is eligible for the payments and the principal, interest, and costs payment may not exceed $9,000.00 per month.

Certain NAICS code entities may be eligible for an additional five months of principal, interest, and costs payments after the completion of the respective three or six month period concludes.  Eligible NAICS codes include: 61 (education), 71 (performing arts), 72 (restaurants and hospitality) , 213 (mining and drilling) , 315 (textile and apparel production), 448 (apparel stores), 451 (hobby stores), 481 (air transportation), 485 (transportation), 487 (scenic and sightseeing), 511 (publishing), 512 (Motion Pictures/Music) , 515 (broadcasting) , 532 (rental and leasing), and 812 (personal care services).

The Taxpayer Certainty and Disaster Tax Relief Act of 2020

Among the tax and benefit provisions in The Taxpayer Certainty and Disaster Relief Act of 2020 is an extension of The Employee Retention and Rehiring Tax Credit in the CARES Act to cover qualified wages up to July 1, 2021. There are also provisions allowing for greater flexibility for dependent care and health flexible spending accounts-with 12 month grace periods and carryover of unused amounts for 2020 and 2021 years.

The No Surprises Act

The No Surprises Act prohibits “Surprise Medical Billing” by health plans and doctors for out of network and other situations where surprise billing often occurs.

For questions, please reach out to Stephanie E. Cummings or Mark F. Williams.

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Mark F. Williams
(203) 575-2618; mwilliams@carmodylaw.com

You may also reach out to any member of Carmody’s Labor & Employment team.

Giovanna Tiberii Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com

On Friday, November 20th, Carmody Torrance Sandak and Hennessey LLP was pleased to host a live discussion on Connecticut’s upcoming paid family and medical leave program with Andrea Barton Reeves, CEO of the Connecticut Paid Family and Medical Leave Insurance Authority.  As the Insurance Authority’s first CEO, Ms. Barton Reeves is responsible for establishing and administering the state’s new paid family and medical leave program, which is being implemented in stages between now and 2022, when paid family and medical leave becomes available to employees in Connecticut.

Approximately 200 registrants attended the webinar, during which Ms. Barton Reeves addressed important topics such as:

  • Covered and exempt employers;
  • Employee eligibility;
  • Mandatory payroll deductions beginning in 2021 to fund the program;
  • Private and self-funded plan options;
  • Employee job protection vs. eligibility for insurance benefits; and
  • Many novel questions about how the mechanics and enforcement of CT Paid FMLA will work.

As Connecticut moves toward the full rollout of Paid Family and Medical Leave for benefits beginning in 2022, there are several significant deadlines along the way, including registration by employers with the Insurance Authority before December 31, 2020 to remit employee payroll deductions beginning January 1, 2021.

The CHRO has announced a second extension of the deadline to provide sexual training for all employees, including supervisors and non-supervisors. In September, the CHRO initially announced that the original October 1, 2020 deadline would be extended to January 1, 2021 pursuant to Governor Ned Lamont’s extension of the declaration of public emergency and Executive Order 9A. Now, the training deadline has been similarly extended to February 9, 2021 pursuant to the same extension of the declaration of public emergency and recently issued Executive Order 9L. This is again a blanket extension and does not require a request.

Carmody Continues to Provide Sexual Harassment Prevention Training Options

In response to client demand, we continue to schedule sexual harassment training sessions via WebEx. Our next session is scheduled for December 4, 2020 from 8:30am to 10:30am for non-supervisory employees. If you would like to register employees for this session, please click here. In addition, we are able to offer clients an on-demand video option for their employees.

If you have any questions or would like more information about these various training options, please contact any member of our Labor and Employment Team below:

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna Tiberii Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com

The Internal Revenue Service (IRS) has announced that the amount employees may contribute to their 401(k) and 403(b) plans next year remains at $19,500.  The IRS announced this week its inflation adjustments for 2021, including:

  • Overall contribution limit for defined contribution plans increases from $57,000 to $58,000 (but see catch-up contributions below).
  • Catch-up contributions for 401(k) or 403(b) plans for individuals aged 50 or over remains unchanged at $6,500.
  • Total compensation that may be considered under a qualified plan increases from $285,000 to $290,000.
  • Limitation for defining a highly compensated employee remains unchanged at $130,000.
  • Employee contributions to a flexible spending account remains at $2,750.
    • If the cafeteria plan permits carryover of unused amounts, the carryover amount is $550.

Earlier this year, in Rev. Proc. 2020-32, the IRS announced adjustments to amounts for high deductible health plans (HDHPs) that may be paired with tax-advantaged Health Savings Accounts (HSAs).  In 2021, HDHPs must have annual deductibles of not less than $1,400 for self-only coverage, or $2,800 for family coverage (both unchanged).  Annual out-of-pocket expenses (excluding premiums) for covered benefits under HDHPs may not exceed $7,000 for self-only coverage ($100 increase), or $14,000 for family coverage ($200 increase).

Separately, the Social Security Administration has announced that the maximum amount of earnings subject to the Social Security tax increases from $137,700 to $142,800 for 2021.

Be in touch with any questions and stay tuned.

Under Governor Lamont’s Latest Executive Order, Travelers from “Hot Spot” States Exempt from Self-Quarantine if they Meet Certain Testing Requirements

Under prior Executive Orders, travelers arriving in Connecticut from “hot spot” states are required to self-quarantine for a period of 14 days from the time of last contact with the hot spot state.

Under newly-issued Executive Order No. 9B, an affected traveler is exempt from the self-quarantine requirement if he or she has had (i) a test for COVID-19 in the 72 hours prior to arrival in Connecticut, (ii) the result of such COVID-19 test is negative, and (iii) the affected traveler submits written proof of the negative test result to the Commissioner of Public Health or his or her designee. These changes take effect after Friday, 9/18 12:01 a.m. This will be welcome news for Connecticut employers who have been grappling with issues (including FFCRA issues) that arise when employees are required to self-quarantine following travel to many popular domestic travel destinations. Please see Executive Order 9B for more information.

DOL Issues Revised FFCRA Regulations in Response to New York Federal Court’s Decision

The U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) that will take effect on September 16, 2020. These regulations were revised in response to a federal court’s decision on August 3, 2020 that invalidated various DOL regulations interpreting the FFCRA. For more information regarding the requirements of FFCRA, see our previous alerts here and here.

DOL Reaffirms the Work Availability Requirement

The DOL reaffirmed its position that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) may be taken only if the employer actually has work available from which an employee can take leave. In other words, the qualifying FFCRA reason must be the “but-for,” or sole reason that the employee is not working. The regulations logically explain that if there is no work for an employee to perform due to the worksite being closed (temporarily or permanently) or because the employee has been furloughed, then the employee is not entitled to paid leave under FFCRA because the qualifying reason could not be the “but-for” cause of the employee’s inability to work. That being said, the DOL emphasized that its interpretation does not permit an employer to avoid granting FFCRA leave by simply by claiming it lacks work for that employee. And remember that FFCRA contains an anti-discrimination/anti-retaliation provision!

Health Care Provider Exclusion is Narrowed

Employers may elect to exclude certain “health care providers” from leave benefits under the FFCRA. The original regulation, which the federal court found invalid, defined health care providers broadly as anyone employed at any doctor’s office, hospital, health care center, clinic, medical school and more.

The DOL has now revised the definition of “health care provider” to specifically include two categories. The first category is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

The second category includes individuals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This category includes nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services and/or those who are otherwise integrated into and necessary to the provision those services.

The DOL has narrowed the original definition by making it clear that a person is not a health care provider merely because his or her employer provides health care services. In other words, employers may not, for example, exempt building maintenance staff, human resources personnel, IT professionals, records managers, billers and food services workers as health care providers, even if they work at a health care facility.

Changes to Intermittent Leave Requirements

Pursuant to the original regulations, intermittent leave under FFCRA was permitted in limited circumstances and subject to employer consent. The regulations continue to provide that an employee who is teleworking may take intermittent leave for any of the qualifying reasons as long as the employer consents. With respect to the employees who report to an employer worksite, however, the employee may only take intermittent leave when the employee satisfies the childcare qualifying reason and obtains employer consent. There is one key exception. The DOL has stated that where an employee’s child is attending a hybrid school schedule and is required to learn remotely on alternating days, each of those days (or half days), is considered a separate period of closure for which an employee is not actually seeking intermittent leave. In other words, where an employee’s child is attending in-person classes on Mondays, Wednesdays and Fridays, but learning remotely on Tuesdays and Thursdays, the employee does not need employer consent to take leave for Tuesday and Thursday because those days are each considered separate closures. Practically speaking then, employer consent is only necessary when the employee seeks to take leave for a portion of the time that the school is “closed” or the childcare unavailable.

Documentation and Timing Requirements for Notice of Leave

The revised regulations now require that the documentation necessary to support a leave request under FFCRA must be provided as soon as practicable as opposed to prior to the leave.

As always, if you have any questions, please contact us.

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com

Under the Time’s Up Act, nearly all Connecticut employers are required to provide sexual harassment prevention training for all employees, including supervisors and non-supervisors. The original deadline for complying with the training requirement was October 1, 2020.

Due to the COVID-19 pandemic and in accordance with Executive Order 7DDD, the Connecticut Commission on Human Rights and Opportunities (“CHRO”) allowed employers to request a one-time 90-day extension of the deadline, provided the extension was received by September 9, 2020.

Following Governor Lamont’s recent extension of the declaration of public emergency, and based on the related Executive Order 9A, the CHRO has announced that the October 1, 2020 deadline has been extended to January 1, 2021. This is a blanket extension and does not require a request.

Carmody Continues to Provide Sexual Harassment Prevention Training Options

In response to client demand, we continue to schedule sexual harassment training sessions for employers via WebEx. Our next session is scheduled for September 25, 2020 from 10:00 a.m. – 12:00 p.m. If you would like to register employees for this session, please click here.

Please stay tuned for an announcement of additional training dates and special pricing for the remainder of the year. Also, Carmody lawyers have been asked to present training through various industry groups.

If you have any questions or would like more information about these various training options, please contact any member of our Labor and Employment Team below:

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com

Administrators of 401(k) plans and other ERISA-covered retirement plans now have much greater freedom to electronically distribute required plan documents to participants, beneficiaries and other individuals, under final rules recently issued by the U.S. Department of Labor.  Whether employers choose to migrate to a new electronic delivery system at this point in time remains to be seen.

Effective July 27, 2020, for the first time ever, employers and plan administrators are permitted to set and use electronic delivery as the default method for delivering most retirement plan disclosures required by Title I of ERISA, such as a Summary Plan Description and quarterly account statements. The DOL’s earlier safe harbor rules for electronic disclosure, which are still valid, have been available only for individuals who affirmatively consent to electronic disclosure, or those who are “wired at work.”

Importantly (and somewhat ironically), the first step employers and administrators will need to take to avail themselves of the new electronic delivery safe harbor is to distribute a paper notice to covered individuals to initially notify them of the employer’s new electronic delivery system, including notice of the right to opt out free of charge and receive paper copies of covered documents at any time. And of course, this new safe harbor would not be a true ERISA regulation if it did not contain an extensive set of detailed content requirements for both the initial paper notice, and the electronic features of the rule briefly discussed below.

The new electronic disclosure rules provide administrators two general methods for electronic delivery of retirement plan documents: (1) notice and website access; and (2) direct email.

Notice-and-Access

Under the first method, called “notice-and-access”, plan administrators may send covered individuals a “notice of internet availability” (NOIA) to an electronic address provided by the individual or assigned by the employer for other employment-related purposes. The designated electronic address for purposes of receiving an NOIA may be an email address, a smartphone to receive text messages, or potentially other devices. The NOIA must provide a website address or hyperlink to the website where individuals may immediately view or easily log in to view the covered document, which generally must remain on the website for one year, or if later, when the document is superseded by a subsequent version. Among other required content, the NOIA must include:

  • A prominent statement that reads: “Disclosure About Your Retirement Plan”
  • Another statement that reads: “Important information about your retirement plan is now available. Please review this information.”
  • Identification of the covered document by name (for example, a statement that reads: “Your Quarterly Benefit Statement is now available”), and a brief description of the covered document if necessary to clarify the nature of the document.

NOIAs must generally be provided when a covered document is posted to the applicable website, although certain notices may be provided annually as a combined NOIA, with additional special timing rules.

Direct Email

As an alternative to the “notice-and-access” safe harbor, plan administrators may directly email covered documents, either in the body of the email or as an attachment. Many similar requirements of the NOIA apply to the content of a direct email. In addition, administrators are required to take reasonable steps to protect the confidentiality of personal information sent in direct emails to covered individuals.

On July 8, 2020, the United States Supreme Court (“SCOTUS”) held in a 7-2 decision that employers may exclude birth control from their health care plans if they have moral or religious oppositions to contraception. This decision upheld the Trump Administration’s November 2018 final rules which provide exceptions to the Affordable Care Act (“ACA”) mandate requiring covered employers to provide women with contraceptive coverage with no cost sharing.

By way of background, the final rules provide exemptions to the contraceptive mandate for religious organizations (such as churches) and employers with sincerely held religious beliefs, including publicly traded employers. The final rules also provide a similar “moral exemption” for employers—including non-profit and for-profit entities with no publicly traded components—with “sincerely held moral” objections to providing some or all forms of contraceptive coverage. These final rules were enjoined by lower courts prior to the appeal to SCOTUS by the Trump Administration and an organization called Little Sisters of the Poor Saints Peter and Paul Home.

SCOTUS upheld the Trump Administration’s final rules on the grounds that ACA grants government agencies the authority to promulgate religious and moral exemptions. Specifically, the Court stated that the Health Resources and Services Administration had “broad discretion to define preventative care and screenings and to create religious and moral exemptions.” Two concurring members of the Court’s Majority noted that the decision was made solely on this basis and that the final rules may be subject to a successful challenge under the “arbitrary and capricious” test for administrative rules.

Although this decision provides an expanded exemption for employers nationally, Connecticut’s exemptions are far narrower. For insured plans in Connecticut, there is a mandate to cover contraceptives and only religious employers and certain hospital and health care centers owned by religious organizations that object to such coverage are exempt. Religious employers include a church, an elementary or secondary school which is controlled or operated or principally supported by a church, as well as a church-controlled tax-exempt organization.

On Monday, June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discharging or taking other adverse action against an employee because the employee is gay or transgender. This is a landmark decision as more than half the states did not recognize such protections.

At the outset of its opinion, the Court’s majority stated, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The Court reached its holding based on the plain meaning of Title VII’s “because of sex” language. Specifically, the Court reasoned when an employer intentionally treats an employee differently because of the employee’s sexual orientation or gender identity, the employer is discriminating “because of sex.” In reaching its conclusion in this manner, the Court rejected the arguments from the employers and the Court’s minority that Title VII as written “does not prohibit employment discrimination because of sexual orientation.”

Although this decision will have a significant impact nationally, it will have a minimal effect on Connecticut employers. Connecticut’s antidiscrimination laws have protected employees from discrimination based on sexual orientation and gender identity or expression for many years. Employers should review their anti-discrimination and anti-harassment policies to ensure that they specifically prohibit discrimination and harassment based on sexual orientation, gender identity and gender expression.