Benefit News
DOL Clarifies FFCRA Leaves Based On Summer Program Closures; Departments Release FAQs on COVID-19 Related Changes to Health Plans
June 29, 2020
On June 26, 2020, the Department of Labor (DOL) issued Field Assistance Bulletin (FAB) No. 2020-4 to field offices of the DOL’s Wage and Hour Division, in which it clarified when employees may take leave under the Families First Coronavirus Response Act (FFCRA) for the COVID-19-related closure of a summer camp, summer enrichment program or other summer program.
Earlier in the week, the DOL, together with the Departments of Health and Human Services and Treasury, issued a set of 18 frequently asked questions (FAQs) that provides answers about health coverage issues related to COVID-19, including implementation of the FFCRA and the Coronavirus Aid, Relief and Economic Security Act (CARES Act).
Field Assistance Bulletin 2020-4
The FFCRA requires covered employers (generally those with less than 500 employees) to provide eligible employees with up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave of which 10 weeks may be paid, in the event that the employee is unable to work or telework because he or she needs to care for his or her child whose school or place of care is closed due to COVID-19 related reasons. The term “place of care” includes summer camps as well as summer enrichment programs, such as summer school, or other summer program.
The DOL, in previous guidance, indicated that a closed summer camp or program may be considered to be the place of care for an employee’s child for purposes of FFCRA leave, if the child was enrolled in the camp or program before the summer camp or other summer program announced its closure due to COVID-19 related reasons.
FAB 2020-4 clarifies that actual enrollment may not be the only qualifying situation to take leave and that there is no one-size-fits-all rule. DOL investigators will look for evidence of a plan to enroll, or whether it is more likely than not that the child would have intended to enroll had the summer camp or program not closed. Possible situations that evidence an intent to enroll include the following:
- Affirmative steps short of actual enrollment (for example, submission of an application prior to closure).
- Recent prior attendance (for example, in 2019 and/or 2018) may also establish the child’s place of care for the summer of 2020 as long as the child continues to satisfy the qualifications for attendance.
- In situations where a child only recently met the qualifications to attend a summer program or where the child had recently moved to a neighborhood serviced by the program, as long as indicators exist to support that a particular camp or program would have been the child’s place of care this summer (for example, by being accepted to a waitlist pending the reopening of the camp or program), might be sufficient to establish the program as a child’s place or care.
FAQS PART 43
The FAQs Part 43 provides guidance on a variety of topics related to health plan coverage. For example, the FAQs:
- Confirm that both insured and self-insured group health plans are subject to FFCRA’s requirements to provide benefits for certain items and services related to COVID-19 testing and diagnosis without cost-sharing.
- Provide that COVID-19 testing for surveillance or employment purposes is not subject to the coverage mandate under the FFCRA and CARES Act.
- Confirm that the FFCRA and the CARES Act generally prohibit balance billing for COVID-19 diagnostic testing.
- Allow health plans to revoke the temporary COVID-19-related coverage changes without satisfying certain notice deadlines, provided participants are notified within a reasonable time frame in advance of the reversal of the changes.
- Allow large employers to offer coverage for telehealth and other remote care services to employees who are not eligible for any other group health plan offered by the employer during the public health emergency.
- Permits health plans to waive standards for obtaining a reward under a health-contingent wellness program as long as the waiver is offered to all similarly situated individuals.
The FAQs Part 43 are available here.
For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949-833-2983 or inquiries@burnhambenefits.com.
Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.