As part of the Coronavirus Aid, Relief, and Economic Security ("CARES") Act, Section 518 of the Employee Retirement Income Security Act of 1974 ("ERISA") was amended to allow the Department of Labor ("DOL") to extend ERISA-related compliance deadlines in the event of a public health emergency. Through this expanded authority, the DOL issued Notice 2020-01 (to be discussed in a subsequent blog) and, with the Departments of Treasury and Health and Human Services ("HHS"), issued joint regulations requiring that several compliance deadlines be determined without regard to the "Outbreak Period," which began March 1, 2020, and will continue until 60 days after the COVID-19-related public health emergency is formally declared to be over.
Pursuant to the joint regulations, the Outbreak Period must be disregarded when applying the following ERISA-related compliance deadlines:
| Requirement | Disregarded Deadline |
| COBRA Employer Notice | The 30-day period for an employer to notify a plan administrator of a qualifying event. |
| COBRA Election Notice | The 14-day period for the plan administrator to provide the COBRA election notice. |
| COBRA Employee Notice of Qualifying Event or Disability Determination |
The 60-day period for a covered individual to notify the plan administrator of a qualifying event (e.g., death or divorce) or disability determination. Example: Employee A divorces from her spouse on April 1, 2020. Spouse would normally have to notify the plan administrator of the divorce by May 30, 2020. However, the plan administrator must accept notice if it is made within 60 days after the end of the Outbreak Period. |
| COBRA Election Notice |
The 60-day deadline for participants to elect COBRA (measured from the later of the date the notice is received or loss of coverage). Example 1: Employee B has a qualifying event and loses coverage on April 1, 2020. Employee B receives the COBRA election notice on the same day. Employee B would normally have to make an election by May 30, 2020, but now the election can be made any time before 60 days after the Outbreak Period ends. Example 2: Employee C has a qualifying event and loses coverage on February 1, 2020. Employee C receives the COBRA election notice on the same day. Employee C would normally have to make an election by March 31, 2020, but the Outbreak Period must be disregarded. Because 29 days passed before the Outbreak Period, Employee C will have until 31 days after the Outbreak Period to elect COBRA coverage retroactive to February 1, 2020. |
| COBRA Initial Premium Deadline |
The 45-day deadline (measured after the date of the COBRA election) for the initial premium payment. Example: Employee D elects COBRA coverage on April 1, 2020, retroactive to March 1, 2020. Normally, the initial premium payment would be due on May 15, 2020. However, Employee D will not be required to pay the initial premium payment until 45 days after the Outbreak Period ends. Assuming the Outbreak Period ends on June 29, 2020, the initial premium payment will be due on August 13, 2020, and must include premiums for March - July (and potentially August depending on COBRA administrative practice). |
| COBRA Premium Grace Period |
The 30-day grace period required for subsequent COBRA premium payments. Example: Employee E elected COBRA coverage on November 1, 2019, and premium payments are due on the 1st of each month, subject to the 30-day grace period. Beginning with the premium payment due on March 1, 2020, Employee E is not required to submit the payment until 30 days after the end of the Outbreak Period. All missed premium payments during the Outbreak Period must be paid by that deadline, however. |
| HIPAA Special Enrollment |
The 30-day (or 60-day in the case of a loss of CHIP or Medicaid coverage) period in which an employee or dependents can enroll in a plan outside of open enrollment. Example: Employee F and her children receive health coverage under a plan sponsored by her spouse's employer. Spouse is laid-off and loses coverage effective April 1, 2020. Employee F's employer also sponsors a group health plan and requires notice within 30 days of a life event to enroll outside of open enrollment. Employee F has until 30 days after the Outbreak Period to provide her employer notice of special enrollment. |
| Internal Claims and Appeals Deadlines |
Deadlines to file internal claims for benefits or appeal adverse benefit determinations. Example: A group health plan requires initial claims to be submitted within 365 days. Employee G incurs a claim on January 1, 2020, and did not submit the claim by March 1, 2020 (the start of the Outbreak Period). Because the Outbreak Period must be disregarded, Employee G has until 305 days after the Outbreak Period ends to submit the claim. |
| External Review Deadlines |
Deadlines to request, and to perfect an incomplete request for, external review of certain adverse benefit determinations under non-grandfathered health plans. Example: Under the federal external review process (state deadlines vary), participants have four months to submit a request for external review after receiving a notice of adverse benefit determination. Employee H receives a notice of an adverse benefit determination on April 1, 2020. Employee H may submit a request for external review within four months following the end of the Outbreak Period. |
When determining how the Outbreak Period impacts a compliance deadline, employers and plan administrators should carefully consider the facts and circumstances of each situation and consult with benefits counsel as needed. Additionally, although employers and plan administrators were given some relief (e.g., sending COBRA notices), the DOL cautioned that fiduciary principles should be followed. Therefore, plan fiduciaries should act reasonably, prudently, and in the best interests of covered individuals and beneficiaries.