The Rule applies to all plan participants, beneficiaries, qualified beneficiaries, or claimants, regardless of their geographic location and regardless of whether such individual is impacted by COVID-19 in any manner.

The Agencies indicated that it may change these rules or extend the "Outbreak Period" for different geographic locations if the circumstances so dictate.

Department of Health and Human Services also indicates that it will adopt a temporary policy with similar consequences for non-Federal governmental group health plans and health insurance issues. In the meantime, plan sponsors of non-Federal governmental group health plans and health insurance issuers should proceed in a manner consistent with the Rule.

Significant issues of final rule

The Rule presents some significant immediate issues, and more issues are sure to arise in practice.

First, plan sponsors will need to closely track dates on which certain notices and events have occurred. They will then need to "keep open" the relevant period, which could require changes to software or systems and require HR departments to closely track these dates.

For example, if a qualified beneficiary would otherwise be required to elect COBRA coverage after March 1, 2020, but does not elect COBRA or pay any premiums, the Rule provides that the qualified beneficiary could elect COBRA and pay all premiums for retroactive coverage. If the Outbreak Period extends to July 1, 2020, for example, the qualified beneficiary would have until August 30, 2020, to elect COBRA and pay the premiums for coverage that could be retroactive to January of 2020. That would leave the plan (particularly a self-insured plan) susceptible to large claims during a period in which many employees are losing health coverage.

The Rule also impacts benefit claims and appeals and may extend the period in which participants may file a lawsuit.

EBSA notice 2020-1

The Notice provides that plan sponsors and fiduciaries will not violate ERISA for failing to timely furnish a notice, disclosure, or document. The plan sponsor acts in good faith and furnishes such information "as soon as administratively practicable under the circumstances." Sponsors are permitted to communicate these changes via including email, text messages, and access to websites, if the fiduciary believes the recipients have access to such methods of communication.

Thus, it is unclear whether the postponed timelines create a true "safe harbor" for plan sponsors and fiduciaries.

As to loans and distributions, if a failure to follow procedures is solely due to COVID-19, the administrator makes a good faith effort to comply with procedures, and the administrator makes a reasonable attempt to correct any deficiencies, the DOL will not treat such delay as a failure of ERISA. This relief does not apply, however, to spousal consents or other requirements under the Code.

Further, the DOL will not assert an ERISA violation for the increased loan amounts available under the CARES Act. Some commentators have worried about the "adequate security" and "reasonably equivalent basis" rules for the increased loan limits. However, these rules will not be enforced for loans available under the CARES Act.

As to participant contributions to retirement plans, the DOL is relaxing the standard to contribute contributions to the retirement plan within a certain time period. However, although the DOL may relax the standard, we would recommend that participant contributions be deposited to retirement plans as soon as possible to avoid potential claims from participants. The DOL also relaxes the requirements for a blackout notice if the inability to provide such notice is outside of the control of the plan administrator.

Lastly, the DOL recommends that fiduciaries continue to act in the best interest of participants and beneficiaries during this time. Plan fiduciaries should make reasonable accommodations to prevent loss of benefits or delay in payments.

These extensions of timeframes are designed to help individuals during these unprecedented times. However, plan sponsors, administrators, and health insurance issuers will need to closely track dates and timeframes with respect to the benefit plans. Effectively, everything is put on "pause" during this time, except with respect to plan sponsors and fiduciaries, who may be required to comply with the original timeframes if they are able to do so.

David Eckhardt is a Milwaukee-based partner with Husch Blackwell LLP focusing on employee benefits, executive compensation and taxation. Craig Kovarik is a Kansas City-based partner with Husch Blackwell LLP, where he is a member of the firm's Employee Benefits and Executive Compensation team and helps clients navigate complex ERISA, tax, and related laws pertaining to employer-sponsored benefit plans and compensatory arrangements.

Read more:

• Employers changing policies, benefits as COVID-19 hits
• CARES Act requires retirement plan sponsors to make decisions immediately
• The costs of COBRA noncompliance