DOL Clarifies FFCRA Eligibility Related to Reopened Schools
In the August 20, 2020, edition of Compliance Corner, we considered the eligibility of employees for leave under the Families First Coronavirus Response Act (FFCRA) when their child’s school has reopened but they have chosen to keep the child home on virtual learning. On Aug. 27, 2020, the DOL provided guidance on that topic and related issues by updating their ongoing FFCRA questions and answers.
As background, the FFCRA requires employers with fewer than 500 employees to provide emergency paid sick leave (EPSL), as well as expanded FMLA (EFMLA), to employees if they must take care of their children whose school or daycare is unavailable due to COVID-19.
In FFCRA questions #98 through #100, the DOL clarified that employees would be eligible for paid leave under FFCRA in the following two scenarios:
- The child’s school remains physically closed. The school year has begun remotely only. Children are not permitted to attend school in person.
- The child’s school has opened on a hybrid basis. The school is physically open every weekday. Students alternate days between attending school in-person and attending remotely from home. In other words, children are only permitted to attend school in-person on assigned days.
The employee would be eligible for paid leave under FFCRA on the days that the child is not permitted to attend school in-person if the employee is in need of leave to care for the child during that time. There must be no other suitable person available to care for the child.
Now consider a scenario where the child’s school is open and children are permitted to attend in-person. Parents are given a choice as to whether the child will attend school in-person or remotely. If the employee chooses for the child to attend school remotely due to personal reasons such as fear of contracting COVID-19, the employee is not eligible for paid leave under FFCRA. However, if the child does not attend in-person because the child is under a COVID-19 quarantine due or a healthcare provider’s advice to quarantine, the employee would be eligible for paid FFCRA leave if they need to care for the child and no other suitable person is available.
Employers should review the new guidance and revise their policies, if necessary, in order to provide appropriate leave for eligible employees.
Congressional Research Service Issues COVID-19 and Private Insurance FAQs
On August 24, 2020, the Congressional Research Service (CRS) issued COVID-19 and Private Health Insurance Coverage: Frequently Asked Questions in light of the ongoing pandemic. With private health insurance being the primary source of health coverage in the US, the FAQ addresses covered benefits and cost sharing regarding COVID-19 testing, treatment, and a potential vaccine under private health insurance (which includes employer-sponsored group health plans generally and individual market plans).
The FAQ reiterates that under the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief and Economic Securities Act (CARES Act), most private health insurance plans are required to cover COVID-19 testing without cost sharing (both in network and out of network), including test administration and related items and services. Further, there is not a federal requirement specifically for the coverage of COVID-19 treatment. However, there is a federal requirement for certain plans to cover a core set of categories for essential health benefits (EHB), and each state can select its EHB benchmark plan. That said, the EHB benchmark plans in all states currently provide coverage for the diagnosis of and treatment for COVID-19. However, the specific benefits provided may vary by state and by plan. Importantly, even if a coverage requirement exists, cost sharing may still apply.
Additionally, the FAQ explains that while there currently is no FDA-approved COVID-19 vaccine available, the CARES Act requires most plans to cover such vaccine (when available) with no cost sharing, if recommended by the Advisory Committee on Immunization Practices (ACIP). Likewise, coverage (without cost sharing) is required by most plans for other COVID-19 preventive services that are recommended by the United States Preventative Services Task Force (USPSTF). The FAQ also provides additional information on covered benefits and cost sharing regarding COVID-19 related services under private health insurance.
While the FAQ does not introduce any new guidance, employers should be aware of the COVID-19 coverage and cost sharing requirements as outlined in this report.
What options do employers have when dealing with health FSA and/or dependent care FSA experience gains (i.e., forfeitures)?
September 1, 2020
Special Enrollment for Uninsured New Yorkers Extended
September 1, 2020
Coverage for COVID-19 Testing
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