On Aug. 19, 2020, the IRS updated its FAQs on the pay or play penalties to include the following increased penalty amounts for the 2021 calendar year:

• The Section 4980H(a) penalty can apply when an ALE does not offer coverage to “substantially all” full-time employees (and dependents). The annual Section 4980H(a) penalty is calculated as the ALE’s number of full-time employees (minus 30) x $2,000 (adjusted to $2,700 for 2021).
• The Section 4980H(b) penalty can apply when an ALE does not offer coverage to all full-time employees, or the ALE’s coverage is unaffordable or does not provide minimum value. The annual Section 4980H(b) penalty is calculated as $3,000 (adjusted to $4,060 for 2021) x the number of the ALE’s full-time employees who receive an Exchange subsidy.

Refer to the attached Compliance Bulletin for details.

ACA Pay or Play Penalties Will Increase for 2021

The U.S. Department of Labor (DOL) has published new frequently asked questions (FAQs) about whether employees qualify for paid leave under the Families First Coronavirus Response Act (FFCRA) in different school reopening situations, including those that blend in-person with distance learning.

In general, according to the FAQs, parents qualify for FFCRA leave only on days when in-person learning is not offered as an option by the school.

DOL Issues FAQs on FFCRA Leave and Return to School

In recently issued frequently asked questions (FAQs), the IRS said employers may set up leave-sharing plans under IRS Notice 2006-59 to benefit employees adversely affected by COVID-19.

The FAQs explain that leave-sharing plans permit employees to deposit leave in an employer-sponsored leave bank for use by other employees who have been adversely affected by a major disaster such as the COVID-19 pandemic.

Employees depositing leave in a qualifying plan:

• Do not include the deposited leave in income or wages.
• May not claim an expense, charitable contribution or loss deduction for the deposited leave.

The FAQs direct employers to Notice 2006-59 for information about the requirements of qualifying leave-sharing plans. Refer to the attached Compliance Bulletin for additional details.

IRS FAQs on COVID-19 Leave-sharing

The presence of unemployment-related scams has grown in the wake of the coronavirus (COVID-19) pandemic. Current unemployment scams include both fraudulent claims and unemployment-related phishing attempts. As many employers are currently dealing with the reality of a high amount of unemployment claims, organizations can take steps to prepare for fraudulent activity and to accurately identify legitimate requests.

Steps include:

• Educate employees on how to identify phishing attempts
• Train appropriate teams on how to identify unemployment claim scams
• Review cybersecurity best practices
• Communicate effectively with employees

Refer to the attached HR Insights article for details on types of scams and how to prevent and identify them.

Unemployment Scams

President Donald Trump recently signed an executive order and three memorandums to address pandemic relief in response to the ongoing impact of the coronavirus (COVID-19) pandemic. After negotiations for a relief package between the White House and lawmakers collapsed, the executive actions are intended to extend pandemic unemployment benefits, student loan payment deferrals, eviction protections and payroll tax cuts.

These actions address four areas of pandemic relief:

• Federal Unemployment Benefits
• Student Loan Payments
• Eviction Protections
• Payroll Tax Cuts

Refer to the attached News Brief for details.

President Trump Signs Executive Orders on Pandemic Relief

President Donald Trump recently signed an executive order aimed to improve telemedicine and rural health care access. The order expands telehealth benefits for Medicare recipients past the public health emergency (PHE) declaration for the coronavirus (COVID-19) pandemic, particularly addressing health care access in rural communities.

Previously, Trump had expanded Medicare telehealth coverage, which offered expanded benefits and suspended restrictions on 135 health care services offered via telehealth to Medicare beneficiaries. This temporarily allowed recipients to receive a wider range of services. This executive order extends these flexibilities and moves to expand telehealth benefits permanently, and increase access and choices for seniors.

Refer to the attached News Brief for details.

Trump Signs Executive Order Permanently Expanding Telehealth Benefits

On Aug. 8, 2020, President Donald J. Trump ordered the U.S. Department of Treasury (the Department) to defer collecting certain payroll taxes from Sept. 1 to Dec. 31, 2020.

Because the order is for a deferral, the unpaid taxes will need to be recouped at a later time, unless the Department can find an avenue to eliminate the obligation to pay the taxes.

Under the order, employers will be able to defer taxes that help pay for Social Security and Medicare for individuals who receive less than $4,000 during any bi-weekly pay period (the equivalent of $104,000 per year) on a pre-tax basis.

Affected taxes will be deferred without any penalties, interest, additional amount or addition to the tax. The White House’s position is that deferring this tax will alleviate the hardship of individuals affected by the economic consequences of the COVID-19 pandemic.

Employers should balance the benefit of releasing affected taxes to eligible employees against the possibility of having to recoup those taxes later. Employers should also take time to evaluate how quickly they can alter their payroll practices and procedures in case they decide to opt for this payroll tax deferral.

Refer to the attached Compliance Bulletin for details.

President Trump Orders Payroll Tax Deferment

On Aug. 5, 2020, the Equal Employment Opportunity Commission (EEOC) issued two new publications that aim to clarify existing requirements related to opioid addiction and employment under the Americans with Disabilities Act (ADA).

The documents confirm that:

• Current, illegal drug use is not an ADA-protected disability.
• The ADA protects individuals who use opioids legally or have recovered from opioid addiction.
• Employers must provide reasonable accommodations for legal opioid use, unless doing so would pose a direct threat to safety in the workplace.

Refer to the attached Compliance Bulletin for details.

EEOC Issues Guidance on Opioid Addiction and the ADA

The 2018 Massachusetts Paid Family and Medical Leave Act established a statewide paid family and medical leave program financed by employer and employee contributions. Contributions began in October 2019, and employee leave benefits become available on Jan. 1, 2021, and July 1, 2021, depending on the reason for leave. Final amendments to the regulations were published July 24, 2020, by the state’s Department of Family and Medical Leave.

The amendments address the following:

• Add a definition for programs under which individuals donate accrued leave time for co-workers experiencing a qualifying reason for PFML leave.
• Clarify certain requirements for private plans, including the date coverage begins, eligibility criteria and coverage when employers switch plans.
• State that continuing treatment by a health care provider now includes telehealth.

Refer to the attached Compliance Bulletin for details.

MA Releases Final Amendments to PFML Regulations

The U.S. Department of Homeland Security (DHS) has announced that the exemption for the physical inspection of Form I-9 documents has been extended to Aug. 19, 2020.

According to the DHS, this will serve as the final extension.

Refer to the attached Compliance Bulletin for details.

Remote Verification of Form I-9 Documents Extended to Aug. 19