TOLLING NO MORE: Preparing for the End of COVID-19 Emergency Declarations

By THE BASS, BERRY & SIMS EMPLOYEE BENEFITS PRACTICE GROUP

OnJanuary 30, President Biden announced his intention to end the COVID-19 National Emergency (NE) and Public Health Emergency (PHE) effective May 11, 2023. Both emergency declarations resulted in various forms of relief for employer-sponsored benefit plans, and both have been extended several times since their inception nearly three years ago. While their impact on federal law differs, employee benefit plan sponsors and administrators should take note of the ending emergencies and their associated relief. Below is an overview of the impact that the end of this relief will have on employer-sponsored benefit plans.

COVID-19 National Emergency

In May 2020, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) issued joint guidance (https://www.govinfo.gov/content/pkg/ FR-2020-05-04/pdf/2020-09399.pdf) to extend, or “toll,” various notices, claims, and election deadlines due to the NE. The Employee Benefits Security Administration (EBSA) Disaster Relief Notice 2021-01 (https://www. dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-andcompliance/disaster-relief/ebsa-disaster-relief-notice-2021-01), issued by the DOL in February 2021, clarified that this tolling period, often referred to as the “Outbreak Period,” runs from March 1, 2020, to the earlier of (a) one year from the date an individual is first eligible for relief from certain ERISA deadlines; or (b) 60 days after the end of the NE.

The following deadlines were extended by the length of the Outbreak Period:

• HIPAA/CHIPRA Special Enrollment

• COBRA Notifications

• COBRA Elections

• COBRA Premium Payments

• Benefit Claims and Appeals

• External Review

We expect the Outbreak Period to end on July 10, 2023 (60 days after the planned end to the NE). At the end of the Outbreak Period, the above-listed deadlines will revert to pre-emergency deadlines. As we approach the end of the Outbreak Period, plan sponsors should consider sending a communication to inform participants about deadline changes. Plan sponsors should also review plan-related documents and participant communications to ensure they reflect accurate deadlines.

COVID-19 Public Health Emergency

Under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, employer-sponsored group health plans are required to cover COVID-19 testing, vaccines, and related services without cost-sharing. The end of the PHE may permit group health plans and insurers to shift some of these costs to participants. Before the PHE ends on May 11, 2023, group health plans should consider if they will continue offering these services without cost sharing. Any potential change in coverage should be discussed with legal counsel before the change is made to ensure proper participant notices and communications are timely distributed and no issues arise under the Mental Health Parity and Addiction Equity Act.

Final Thoughts

The end of the pandemic mandates applicable to ERISA plans has been a moving target for several years. As we approach the end of the NE and PHE, we urge plan sponsors to:

• Make decisions regarding the coverage of COVID-19 diagnostic testing, vaccines, and related services.

• Update participants on these coverage decisions.

• Inform participants that the extended deadlines will be replaced with pre-emergency deadlines at the end of the Outbreak Period.

• Review all plan-related documents and participant communications to ensure they reflect proper deadlines and coverage information.

If you have any questions about how the end of the COVID-19 emergencies will impact the administration of your plans, please contact a member of our Employee Benefits Practice Group by visiting https://www.bassberry.com/ services/employee-benefits-transactions/

Asettlement in an age discrimination in employment case announced by the EEOC on March 1, 2023, should be of the highest importance to every human resource professional in America. Indeed, every HR professional should keep a copy of the decision readily available to show to their organization’s top management, if they ever feel their job is in jeopardy for “doing the right thing” by educating and then expecting, even requiring, their organization to comply with the laws in the United States prohibiting discrimination in employment. The settlement was in the case of EEOC and Diane Nolan v. Fischer Connectors, Inc. No. 1:22-cv-03884 (N.D. Ga. Feb. 28, 2023).

The case involved a Swiss-based national manufacturer of medical devices and Diane Nolan, who was the Human Resources Director at the company’s headquarters in Alpharetta, Georgia, from 2007 to 2020. The complaint filed in the case reveals that in 2019 the new President of the company’s national operation began repeatedly asking Nolan questions like: “Why is the workforce so old?” and “What age is mandatory retirement [in the U.S]?” He told her he had been instructed by the company’s Chief Executive Officer to hire a new, younger management team and he planned to replace anyone in senior management who was over the age of fifty-five with a younger person.

From January to July 2020 the company did just that when it terminated five upper management employees, all over the age of fifty, under the guise of “job eliminations” and replaced them with substantially younger individuals under slightly different job titles with the same or similar job duties. Finally, because Nolan would not remain silent and go along with the evil discriminatory scheme and was sixty-seven years old, she was called into the President’s office on July 14, 2020, and terminated too. He told her: “You have done nothing wrong. I am just following orders in building a new, younger team for the CEO.” She was then replaced with two substantially younger individuals, ages fifty-two and thirty-two.

In the EEOC press release announcing the settlement, Marcus Keegan, the agency’s Regional Attorney for the Atlanta District Office, said: “This was a textbook example of age discrimination in violation of the Age Discrimination in Employment Act ... which makes it clear that employment decisions must be made based on employee qualifications rather than on stereotypes about an employee based on their age.” In the Consent Decree entered in the case, the company agreed to pay Nolan $460,000.00 and to train its executives,