Identify new or updated recordkeeping requirements as a result of COVID-19 

Maintaining your organizational wellbeing during the unprecedented COVID-19 pandemic requires a broad view of the factors that impact your ability to achieve your business objectives while supporting the personal wellbeing of your employees. COVID-19 has not only increased the number of records human resources and employee benefits departments must retain, but also added the challenge of trying to do so while working remotely. As your organization strives to meet existing and new recordkeeping requirements, it will be helpful to have a systemic process in place. Check out the action steps below to help you identify new or updated recordkeeping requirements as a result of COVID-19.

Receive. Document. Maintain.

The Families First Coronavirus Response Act (FFCRA), which took effect on April 1, 2020, created two types of paid emergency leave for impacted employees — Emergency Paid Sick Leave and Public Health Emergency Leave. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) issued FAQs setting forth documentation requirements for an employer with an employee who requests leave under FFCRA. The DOL FAQs indicate that an employer should document specific information when an employee requests leave under the FFCRA. The DOL permits the employee to provide the required information to the employer, either orally or in writing. Further, if an employer intends to make a claim for refundable tax credits under FFCRA, the employer will need to comply with all IRS requirements. Based on the IRS FAQs, employers seeking to make a claim for the refundable tax credits will need a written statement from the employee regarding the request for leave to support the employer's claim for reimbursement of the costs of leave. Employers should be prepared to maintain FFCRA-related leave documents for four years, regardless of whether the leave was granted or denied. Employers that deny a request based on the small business exemption must document their authorized officer's determination that the exemption criteria were met. What steps has your organization taken not only to document leave requests but also to document the basis for reimbursement under the FFCRA for leave?

Question. Record. Safeguard.

Many employers now seek to return employees to the workplace after a period of absence due to shelter-in-place or stay-at-home orders. As part of that process, employers are taking steps aimed at creating a safe work environment by asking employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat. Such questions are permissible medical inquiries under the Americans with Disabilities Act (ADA) because COVID-19 is considered to be a pandemic. Employers subject to the ADA must safeguard all information about employee illness as a confidential medical record in compliance with the ADA. What actions does your organization take to safeguard the confidentiality of employee medical information connected to COVID-19 symptoms?

Check. Log. Protect.

In addition to asking questions about possible symptoms for employees returning to the workplace, many employers are taking employees' temperatures — often at the beginning and end of the workday. Under the Equal Employment Opportunity Commission's (EEOC) guidance under the ADA, measuring an employee's body temperature is generally considered to be a medical examination. Such a medical examination is permissible according to the EEOC because the Center for Disease Control (CDC) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. Many employers are keeping logs of employee temperatures, which then creates confidential medical records under the ADA, and thus for employers subject to the ADA, should be handled accordingly. Are there any additional actions your organization should take to protect the confidentiality of temperature checks in response to COVID-19?

Calculate. Continue. Minimize.

Because of a concern about the possibility of individuals losing benefits as a result of a failure to comply with certain deadlines due to COVID-19, the DOL's Employee Benefits Security Administration (EBSA) and the IRS relaxed certain employee benefit timeframes, including three significant deadlines related to COBRA continuation coverage. The Department of Health and Human Services (HHS) encourages nonfederal governmental plans to also adopt the relief. Those three deadlines include the following:

  1. the 60-day election period for COBRA continuation coverage;
  2. the date for making COBRA premium payments; and
  3. the date for individuals to notify the plan of a qualifying event or determination of disability for purposes of COBRA.

Under the regulations, group health plans must disregard a period called the Outbreak Period when calculating certain time periods. The Outbreak Period is the period from March 1, 2020 until 60 days after the announced end of the National Emergency (or such other date announced by the Agencies). (As of July 15, the end of the Outbreak Period has not been announced.) Under CORBA, Plan administrators need to maintain recordkeeping procedures that establish and prove when election periods begin and end and when elections are sent by qualified beneficiaries. The Outbreak Period will make this recordkeeping particularly challenging because of the change to the calculation of specific dates, and employers should be aware of lingering COBRA responsibilities that may be triggered by the Outbreak Period relief. Careful recordkeeping related to the three COBRA periods impacted by the Outbreak Period relief will help employers minimize the risk of mistakenly denying or terminating COBRA coverage. What steps has your organization taken to minimize the risk of mistakenly denying or terminating COBRA continuation coverage by overlooking relief granted during the Outbreak Period?

Evaluate. Account. Respond.

In addition to the relief granted during the Outbreak Period for certain deadlines associated with COBRA continuation, the EBSA and the IRS have also granted relief during the Outbreak Period for time periods related to HIPAA special enrollment rights. (HHS has also encouraged nonfederal governmental plans to comply voluntarily.) For example, if an employee who previously declined employer-sponsored coverage has a child during the Outbreak Period, that employee's timeline to request a special enrollment does not start until after the Outbreak Period ends. Employers thus must take special care when receiving requests for special enrollment either during or after the end of the Outbreak Period to take into account the relief for that period of time. How can your organization ensure that it correctly evaluates the timeliness of requests for special enrollment impacted by the Outbreak Period relief?

This is a preview of Priorities and Perspectives, a monthly publication produced by Gallagher's Compliance Consulting Practice. For five more action steps to help you focus your compliance efforts in 2020, contact your Gallagher representative or visit our Compliance Resources page for the full version of this month's edition.

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Compliance is a series of actions, not a final destination. As a trusted advisor, Gallagher has developed this Priorities and Perspectives series to help you pursue a path through employee benefits compliance issues as part of an overall continuing compliance plan. Employers should carefully evaluate their health and welfare plans to determine if they are in compliance with both federal and state law. If you have any questions about one or more of the compliance requirements listed above, or would like additional information on how Gallagher constantly monitors laws and regulations impacting employee benefits in order to support employers in their compliance efforts, please contact your Gallagher representative.

The intent of this analysis is to provide you with general information. It does not necessarily fully address all your organization's specific issues. It should not be construed as, nor is it intended to provide, legal advice. Questions regarding specific issues should be addressed by your organization's general counsel or an attorney who specializes in this practice area.