Tuesday Talk with Bim Group - Bim Group

Welcome to Tuesday Talk with Bim, our live Facebook discussion series hosted by Deanna Sizemore, Bim Group’s Director of Compliance. Deanna will be on Facebook Live on Tuesdays to answer any general compliance questions you have in real-time. In light of the current pandemic, this is a great opportunity to ask any COVID-19 questions you have as they pertain to employer-sponsored health plans.


September 21, 2021

September 2, 2021


  • Vaccine – Mandate vs Incentive
  • Compliance Reminders – 5500, ARPA, & Medicare Part D



August 3, 2021

July 27, 2021

June 22, 2021

June 1, 2021


May 11, 2021

Q. Who must be offered a subsidy?

A. A subsidy must be offered to all employees and dependents who experienced a loss of coverage due to involuntary termination or reduction of hours and are within their eligible COBRA period.


Q. An individual is currently enrolled through the Individual Marketplace but is potentially an AEI. Can the individual drop the Marketplace coverage and switch to COBRA continuation coverage with premium assistance?

A. Yes. Individuals can use the election period to change from the marketplace to COBRA continuation coverage. Individuals eligible for the 100% COBRA subsidy under the ARP can use the 60-day election period beginning April 1, 2021 to change from individual market health insurance coverage (that they obtained either through the Marketplace) to COBRA continuation coverage with premium assistance.

If an individual elects to enroll in COBRA continuation coverage with premium assistance, they will no longer be eligible for a premium tax credit, or advance payments of the premium tax credit, for Marketplace coverage for which they would otherwise qualify during the premium assistance period.


Q. Does the subsidy cover dependents?

A. The subsidy is based on the covered individuals at the time of the originally qualifying event. If the individuals were covered, they will be potentially eligible and covered through the subsidy.


Q. Is a person who is eligible for Medicare, are they eligible for the COBRA subsidy?

A. No.


Q. If an active employee and spouse divorce, is the spouse eligible for the subsidy?

A. No, divorce is a separate qualifying event reason and would not be defined as “involuntary termination”.


Q. How many hours qualify for a reduction of hours?

A. If the reduction of hours results in a loss of coverage, individuals will be eligible for the subsidy.


Q. If an individual is terminated and has access to coverage through a spouse, but there is a spousal surcharge on the spouse’s plan, is the individual eligible for the subsidy?

A. Current guidance indicates that if an individual has access to another group plan, they would not be eligible for a subsidy.


Q. An employee is out on a family medical leave for six months. At the end of the third month, medical benefits end under the terms of the plan, but the individual is still employed. Is the employee an “Assistance Eligible Individual” (AEI) for purposes of the COBRA premium subsidy under the ARPA?

A. Yes. Any reduction in hours that leads to a loss of coverage is a COBRA qualifying event that would make an individual eligible for the premium subsidy. This includes a reduction in hours due to a medical or disability-related leave of absence.


Q. An individual was fired from our company. He went to work for another company and was also fired. Which company is required to send COBRA notices and offer fully subsidized COBRA?

A. Potentially both. Assuming he was covered by a health plan at each employer, both would be required to send COBRA notices and either company could be responsible for the ARPA subsidy for some or all of the subsidy period. The individual will be given a choice of COBRA coverage.


Q. Does a notice or subsidy eligibility notice go to all employees who lose coverage due to involuntary termination or a reduction in hours?

What about those individuals that the company knows are eligible for Medicare or another employer’s plan?

A. Yes. Under the ARPA, all employees who lost coverage due to involuntary termination or a reduction in hours should receive notification of their right to premium assistance. The model notices issued by the DOL require individuals to indicate if they are not eligible for Medicare or another employer’s plan. Furthermore, the notices are required to inform individuals about the $250 penalty they will face for electing subsidized COBRA if they are eligible for Medicare or another group health plan.

Even if a former employee does not acknowledge eligibility for age-based Medicare, an employer could still deny eligibility for the subsidy. We would advise seeking legal counsel before deciding on this issue.


Q. If a company provides a terminated employee with a taxable lump-sum severance package to pay for COBRA, is the person eligible for a subsidy?

A. Probably not, but we are waiting for further guidance from the DOL.


Q. A former employee is not “assistance eligible” if he is eligible for another employer’s plan. What if the former employee satisfies the eligibility requirements for the other employer’s plan but chooses NOT to enroll in the other employer’s plan?

A. The employee would not be eligible for the subsidy because they chose to waive coverage when they were eligible to enroll.


Q. May an employer stop treating COBRA as fully paid when a former employee turns 65 and becomes eligible for Medicare, even if the employee does not notify the plan?

A. Neither the ARPA nor the DOL guidance has addressed this question. We would suggest waiting for further guidance.


April 27, 2021


March 31, 2021


March 18, 2021

February 23, 2021



February 2, 2021

COVID-19 Vaccines: Seven Questions for Employers

Posters and Recordkeeping

January 19, 2021


Q: Does an employee receive a new bank of emergency paid sick leave (EPSL) or expanded family medical leave (EFML) in 2021?

A: No. The FFCRA (Families First Coronavirus Response Act) is clear that an eligible employee receives a maximum allotment of 2 weeks/80 hours of EPSL (Emergency Paid Sick Leave) and 12 weeks of EFML in total.



If an employee used one week of EPSL on or after April 1, 2020, the employee has one additional week of EPSL to take in 2021. However, if the employee used the entire allotment of 2 weeks/80 hours in 2020, an employer cannot provide the employee additional EPSL in 2021 if they want to take the tax credit.


Employer uses a calendar year for its 12-month FMLA leave period. The employee used 8 continuous weeks of EFML in 2020. As of January 1, 2021, the employee would earn back another 12 weeks of FMLA leave, so he could use the balance of 4 weeks of EFML that he did not use in 2020.


Q: May an employer voluntarily offer EPSL, but not EFML, or visa versa?

A: Yes, the FFCRA contained two different acts: EFML and EPSL. FFCRA discusses tax credits for both EPSL and EFML (among other things). The December 2020 amendments added sections relating to the tax credit, but EFML and EPSL still remain two separate sections. As a result, an argument could be made that an employer has the discretion of providing only EPSL and not EFML, or visa versa, in 2021.


Q: Can an Employer tweak any of the provisions under FFCRA and still obtain the tax credit?

A: No if the employer plans on taking the tax credit.


EEOC Wellness – Notice(s) of Proposed Rulemaking

The EEOC has announced that NPRMs on wellness have been cleared by the Office of Management and Budget and sent to the Federal Register for publication. Once they are published the public will have 60 days to provide comments on the NPRMs.

Unofficial versions of the NPRMs are available here: https://www.eeoc.gov/regulations/wellness-rulemaking. After the Federal Register publishes the proposed rules, the public will have 60 calendar days to submit comments for those comments to be considered by the Commission. Members of the public may submit electronic comments about the proposed rules at www.regulations.gov in the rulemaking dockets RIN 3046-AB10 and RIN 3046-AB11.

* The official versions of these documents are the documents published in the Federal Register. These documents have been sent to the Office of the Federal Register but have not yet been scheduled for publication.

Bim Comment: Once published in Federal Register, the 60 day comment window will begin along with instructions on how to comment.

For more information:




January 5, 2021

COVID-19 Vaccine Resources

Important ACA Employer Mandate Reporting Deadlines

  • March 2, 2021:  Deadline to distribute 1095-C forms to employees.
  • March 31, 2021:  Deadline to electronically file with the IRS.
2020 Changes to 1095-C Forms
Here is a quick summary of the changes on the 1095-C (all but 1 applies to ICHRA):·        Plan Start Month is now required·        Employee’s Age on January 1 (required if employee was offered ICHRA)·        Zip Code (Part II Line 17) (required if employee was offered ICHRA)·        Eight New Line 14 codes – 1L through 1S – all pertaining to ICHRA reporting·        Line 15 – The calculation for employees offering ICHRA can be very complex and vary by each employee due to age and zip code

On Monday, December 21, the stimulus bill from Congress was released. The bill contains individual relief, as well as an extension of federal unemployment assistance benefits. The bill did not, however, contain an extension of the mandatory paid leave benefits provided under the Families First Coronavirus Response Act (“FFCRA”). The stimulus does contain an extension through the end of March, 2021 of the tax credits provided for under the FFCRA leave. As a result, FFCRA leave will formally sunset on December 31, 2021, but employers who voluntarily provide leave under the original provisions of the law may be able to qualify for tax credits through the end of March, 2021.

Consolidated Appropriations Act, 2021

On Sunday, December 27, President Trump signed a COVID-19 relief and government spending package called the Consolidated Appropriations Act, 2021. As part of the relief bill, the government has expanded upon earlier-provided relief for flexible spending accounts (FSA) and dependent care flexible spending accounts (DCA).

Employers may choose to adopt any or all of the following provisions; however they are not mandatory. These provisions do require plan amendments. Here are your options:

  • Normal rule: A health care FSA can choose either 1) a carryover of up to $500 ($550 following previous COVID-19 relief) from the previous plan year for participants to spend in the current plan year or 2) a grace period of up to 2 ½ months for participants to incur expenses reimbursable from unused amounts in the previous plan year.
  • New option: Both health care and dependent care FSAs may apply either the carryover rule or the grace period rule for unused amounts as of the end of 2020 AND 1) the carryover rule is not subject to a cap and 2) the grace period rule can be applied for a full 12-month period.
    • In addition: The same rule can apply for plan years ending in 2021 – unused balances at year-end 2021 can be carried over into 2022 or available for a 12-month grace period in 2022.
  • Normal rule: Only changes in status or other special events will allow a participant to change their FSA elections mid-year.
  • New option: For the plan year ending in 2021, an employer may permit an employee to make prospective changes to their health care and dependent care FSA elections at any time for any reason.
  • Normal rule: After an employee ceases participation in a health care FSA, they must elect COBRA to continue receiving their FSA reimbursement benefits.
  • New option: Plan design can allow employees who no longer participate in the plan during 2020 or 2021 to use their remaining balance through the end of the year in which participation ceased (plus any grace period) without regard to COBRA. This has been an option for dependent care FSAs but now it is an option for health care FSAs, too.
  • Normal rule: For dependent care FSAs, expenses incurred after a child turns age 13 are ineligible for reimbursement.
  • New option: If a participant enrolled in a dependent care FSA had a child that turned age 13 in the 2020 plan year (more specifically, in the plan year for which the open enrollment period ended on or before January 31, 2020), then the participant may be reimbursed for expenses incurred after the child’s 13th birthday for the remainder of that plan year, or if there is an unused balance at plan year end, in the following year until the child turns age 14.

Deadline for Making Plan Amendments

You have the discretion to include any, all, or none of these provisions in your cafeteria plan document. Plan amendments can be retroactive as long as you administer the plan consistent with the amendment beginning on the effective date and you adopt the amendment by “the last day of the calendar year following the year in which the amendment is effective.” This means changes for the 2020 plan year need to be adopted by December 31, 2021, and changes for the 2021 plan year need to be adopted by December 31, 2022.

Consult with your own attorney before taking any action. In my role at Bim Group, I cannot provide legal advice. This information is provided for educational purposes only; it’s not intended to provide legal advice. Thank you.

December 8, 2020

Vaccination Policy Letter to Employees

Employee Vaccination Policy Template

COVID-19 Vaccines: Employer Mandate & Incentive Issues


November 10, 2020

What’s Next?

  • Potential impact of a new presidential administration on HR & Benefits
  • SCOTUS Hearings on ACA
  • Non-Discrimination Rules for Fully Insured Health Plans
  • Transparency Rule
  • FFCRA Expansion?

October 27, 2020

  • FMLA & Leave of Absence FAQ
  • COVID Update
  • End of Year Non-Discrimination testing for Section 125 and Section 105h
  • Update on DOL Investigations

September 29, 2020

When to Distribute Your Notices (Timing Chart)

Summary of Notices & Disclosures

Open Enrollment Checklist – COVID-19 Edition

Understanding Spousal Surcharges with Deanna Sizemore (podcast)— Listen to get a better understanding of spousal surcharges and waivers, learn the pros and cons of each, and get Deanna’s expert advice on how to manage these processes.


September 15, 2020


Are employees who are grandparents to children being schooled remotely…only option… eligible for leave? They are not the guardian of grandchildren.

Under the FFCRA, a “son or daughter” is your own child, which includes your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis, which is someone with day-to-day responsibilities to care for or financially support a child. A “son or “daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.

So, unless the grandparent qualifies for “loco parentis” for the child, then they are not eligible for FFCRA.

For additional information about in loco parentis, please see Fact Sheet #28B for more information regarding Family and Medical Leave Act (FMLA) leave for birth, placement, bonding or to care for a child with a serious health condition on the basis of an “in loco parentis” relationship.



September 1, 2020

  • Medicare Part D Creditable Coverage Notice
    • This notice is due every year by October 15th. If you have distributed the notice within the last 12 months, there is no need to distribute the notice again prior to October 15th.
    • The second part of the notice is to notify CMS on whether or not the RX plan is creditable. Visit https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosureForm
      • If you do not know the exact number of Medicare-eligible participants (including employees, spouses, and dependent children), use the closest estimate.
      • If you are unsure if your plan is creditable or not, please contact your Account Manager.


  • DOL Wage and Hour Division issued Field Assitance Bulletin 2020-5 on August 24, 2020.
    • Under Fair Labor Standards Act (FLSA), employers are obligated to pay non-exempt (hourly) employees for all hours worked.
    • FLSA requires employers to be able to control or track hours worked.
    • You may need to review work schedule policies, establish clear reporting policies, and ensure all supervisors/managers are aware of the policy.
    • Employer due diligence is a must.
      • It is important to have remote working policies – especially for nonexempt (hourly) staff. If they are checking email at 9pm, or on the weekends, you will have to pay them – and this could run into OT.


  • On August 28, 2020, OSHA issued new guidance on Respiratory Protection Standards.
    • Due to limited availability of respirators and fit-tested supplies, OSHA issues temporary enforcement guidance allowing discretion when considering citations under the Respiratory Protection standard.
    • “This guidance allows Compliance Safety and Health Officers to exercise enforcement discretion in cases involving workplace exposures and an employer that is unable to comply with certain provisions of the Respiratory Protection standard because of supply shortages and has thus found it necessary to implement contingency or crisis strategies for respirator use by workers.”
    • Discretion only applies when circumstances are beyond the employer’s control (i.e. supplier issue).
      • Employer should explore all options, modify work to minimize exposure.
    • Kentucky employers may order medical masks (not N95), gloves, alcohol wipes and no contact thermometers from the KY Chamber of Commerce. https://www.kychamberppe.com/


  • CDC issues new guidance on COVID testing.
    • August 24, 2020 new guidance was issued that states if you have been in close contact (within 6 feet) of a person with COVID-19 for at least 15 minutes, but do not have any symptoms, you do not necessarily have to be tested unless you are told by a State or Local Public Health official too, or if you are high risk individual.
    • August 29, 2020, the CDC issued new guidance on Antigen Testing
      • Diagnostic – identifies current information with those with signs or symptoms.
      • Screening – identifies those infected who are asymptomatic and without exposure
      • Surveillance – Ongoing monitoring of a community or population
      • Rapid Antigen – identifies presence of a specific viral antigen


August 11, 2020

2021 ACA Affordability Percentage

Calendar year Prior year FPL Affordability percentage Maximum monthly contribution
2021 $12,760 9.83% $104.53
2020 $12,490 9.78% $101.79


Premium Credits

As noted at the beginning of this video, this Tuesday Talk is geared toward public, private health plans – not government, church or association health plans. Please bear that in mind while listening to this edition of Tuesday Talk.

If you have received a premium credit, you should consider your obligation under the Employee Retirement Income Security Act of 1974 (ERISA), as well as state guidelines to determine how to apply these credits.  The Department of Labor (DOL) has not provided any guidance on how to handle these specific credits, but they have addressed how to apply Medical Loss Ratio (MLR) rebates (see DOL Technical Release 2011-041).  While premium credits are not the same as MLR rebates, both are credits applied to premium and are subject to the ERISA fiduciary rules.

If the plan or its trust is the policyholder (employer), and there is no specific plan or policy language in the plan document on how to handle such credits, the entire credit/rebate may be considered plan assets and if so, the policyholder is required to comply with ERISA’s fiduciary rules.  To determine if the credit is a plan asset, please see below2.  Once an employer determines if all or a portion of a premium credit is a plan asset, it must decide how to use these funds for the exclusive benefit of the plan’s participants and beneficiaries. For example, the credit could be shared with participants in the form of a premium holiday, reduced payroll deductions or benefit enhancements. Please see below for more distribution information3. Last but not least, to avoid the need to establish and maintain a trust for these funds, these funds should be used within three months of receipt. Regardless of what the plan decides, you should document the decision-making processes.

  1. DOL  Technical Release 2011-04
  2. Plan Asset Determination
    1. ERISA Plans: If the employer is the policyholder—as is most often the case—the portion of the rebate that must be treated as a plan asset depends on who paid the insurance premiums. For example:
      1. If the premiums were paid entirely out of trust assets, the entire rebate amount is a plan asset;
      2. If the employer paid 100 percent of the premiums, the rebate is not a plan asset, and the employer can retain the entire rebate amount;
      3. If participants paid 100 percent of the premiums, the entire rebate amount is a plan asset;
      4. If the employer and participants each paid a fixed percentage of the premiums, the percentage of the rebate equal to the percentage of the cost paid by participants is a plan asset;
      5. If the employer was required to pay a fixed amount and participants were responsible for paying any additional costs, the portion of the rebate that does not exceed the participants’ total amount of contributions for the relevant period would be a plan asset; anD
      6. If participants paid a fixed amount and the employer was responsible for paying any additional costs, the portion of the rebate that does not exceed the employer’s total amount of contributions during the relevant period would not be a plan asset.
      7. Employers are generally prohibited from retaining a rebate amount greater than the total amount of premiums and other plan expenses paid by the employer, according to the DOL.
    2. Non-ERISA Plans: Employee benefit plans maintained by governmental employers are exempt from ERISA’s requirements. This exemption includes plans maintained by the federal, state or local (for example, a city, county or township) governments. Church plans are also exempt from ERISA.
      1. If the plan is not an ERISA plan, then any applicable state guidelines would need to be followed.
      2. While these state guidelines may be more flexible than what the ERISA rules would require, it is considered best practice for these plans to also follow the ERISA guidance in determining and distributing plan assets.
  3. Additional information regarding the distribution of Premium Credits
    1. ERISA Plans: https://bimgroup.us/mlr-rebate-considerations-private-plans/
    2. Non-ERISA plans: https://bimgroup.us/mlr-rebate-considerations-government-and-church-plans/

July 21, 2020

Updated FMLA Forms

Form 7200, Advance Payment of Employer Credits Due to COVID-19

Form 941 – 2020

Sample FMLA policy is linked below video from July 7, 2020.


July 7, 2020

Sample FMLA Policy

FMLA Administration Checklist

Department of Labor – FMLA

The Family and Medical Leave Act Fact Sheet #28

Family and Medical Leave Act Employer Guide

Department of Labor – FMLA FAQs

COVID-19 and the Family and Medical Leave Act Questions and Answers

Families First Coronavirus Response Act FAQs



June 23, 2020

June 9, 2020

June 4, 2020

May 19, 2020

Webinar: Healthy at Work Phase 1 Reopening | What This Means For Your Business

Download Presentation

COVID-19 Links and Resources

May 12, 2020

May 5, 2020


April 28, 2020


Questions & Answers

Return to Work Checklist

Fisher Phillips Post-Pandemic FAQs

April 21, 2020


April 14, 2020

Questions & Answers

Weekly Update:

  • FFCRA passed and we are receiving regulations and FAQs almost daily. We are doing our best to stay abreast of new information. Please note: the information discussed in each recording is based on the guidance available as of the date of the original broadcast. Regulatory agencies are issuing daily guidance; therefore, information is subject to change.
  • Post FFCRA Posters – non-enforcement period through April 17, 2020
  • HSA Contributions/Tax Filing extended through July 15, 2020 for 2019 plan year
  • Temporary DOL regulations issued last week
  • Q: Has the Internal Revenue Service (IRS) provided any guidance on cafeteria plan permitted election change events to allow group health plan participants to make mid-year election changes due to COVID-19?  A: Currently, the IRS has not provided any guidance on allowing group health plan participants to make mid-year election changes beyond those recognized in the cafeteria plan regulations and adopted in the employer’s plan documents. Read more at: https://bimgroup.us/compliance-recap-march-2020/


Clarification on prior Q&A:

  • A question was asked if the $600 per week unemployment income (UI) included in the recent regulations is on top of earned. At that time, the answer was no, but after receiving clarifying comments from the DOL, the $600 UI benefit is in addition to the earned UI amount. The state will pay the earned UI and federal pays the additional $600. With that being said, it is possible for someone to make more money unemployed, than employed. Please see Q. #7 from April 7, 2020 Q&As.
  • Clarity on who is/is not eligible for emergency paid sick leave (EPSLA) and emergency paid family leave (EFMLA).
    • EPSLA – Emergency paid sick leave is available for a maximum of 10 days to an employee who is subject to a federal, state, or local quarantine or isolation order related to COVID-19. 2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. 3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; or the employee who is caring for a family member under the same circumstances; or has a child whose day care or school is closed due to COVID-19
    • EFMLA – Emergency paid sick leave is only available to an individual that is caring for a child whose day care or school is closed due to COVID-19. The employee is eligible for an additional 10 weeks of paid leave.
  • Referenced HIPAA and COVID-19; Please see Q. #1 from April 7, 2020 Q&As.
  • Guidance on Preparing Workplaces for COVID-19 is now up on the Bim Group COVID-19 landing page: https://www.osha.gov/Publications/OSHA3990.pdf


Facebook Live Q&A

1. I have an employee that has been called to Active duty with the National Guard. He wanted to file for unemployment. We didn’t lay him off. Do you know if he can do that?

    • Based on research, he may be eligible. He can file, but you do not lay him off – if he is called to active duty, it sounds like he can apply. This is outside my wheelhouse, but hopefully this helps! I wouldn’t guarantee he’d receive it – but tell him he can apply.
    • Generally, you can file for unemployment compensation if you are a member of the Reserves. Unemployment insurance is for people who have experienced substantial declines in their income, through no fault of their own. Your status as a reservist or National Guardsman is not a factor. However, your drill pay will generally be deducted from your unemployment benefits. https://www.sapling.com/8455045/can-file-unemployment-reserves Kentucky Office of Employment and Training, Unemployment Claims System Online Portal. If you are unable to complete your initial unemployment claim using the Internet, please call our Call Center at 502-875-0442. If you are unable to complete your bi-weekly continued unemployment claim (benefit payment) using the Internet, call the Voice Response Unit at 877-369-5984 or 877-3MY-KYUI (toll free). If you have questions or need assistance, please contact the UI Assistance line at 502-564-2900. https://myarmybenefits.us.army.mil/Benefit-Library/State/Territory-Benefits/Kentucky#Unemployment

2. Good Afternoon, if we have laid off workers and we need to terminated benefits at the end of the month. Does the 30 days start from date of lay off or the date insurance was terminated. The 30 days they have as a qualifying event to be covered under a spouse.

    • The qualifying event is the loss of insurance coverage.

3. The Paycheck Protection Loan will it pay the insurance premiums?

4. Employees that come in with some suspect symptoms and we send them home but their dr says they don’t qualify for testing at this time b/c they don’t have ALL the symptoms and can’t say whether they have or haven’t been in contact with someone who has C-19. These people are not eligible for the EM Sick leave under FFCRA right because they weren’t diagnosed with C-19 and aren’t technically seeking such a diagnosis?

    • This is true but could vary depending on the circumstances. Under FFCRA, the person has to be either waiting for an appointment, going to an appointment, experiencing COVID-19 type of symptoms, have a doctor’s note and are being told that aren’t able to work due to being high risk or self-quarantine and unable to telework, then they would be eligible. If they are sick (not COVID related, i.e. flu), they are not eligible.  Under FFCRA the employer cannot require a doctor’s note, but if an employee presents a doctor’s note that they cannot work due to COVID reasons, I would err on the side of the employee.

5. If we are being abundantly cautious for our general employee population, we should cover their absence or have them use regular sick or PTO in that situation, correct? 

    • Again, depending on the circumstances, yes. If they are eligible for paid leave under FFCRA, you cannot force them to use sick or PTO time. If it’s an illness unrelated to COVID, you could cover them or have them use sick time.

6. Why all of the employees are laid off should I have all of them go on Cobra?

    • This really depends on the employer and carrier; Anthem, Humana and UHC have extended coverage through May 31, 2020 as long as 1 person is actively at work (and on the plan); and premiums are continued. If the employer chooses to leave employees who have been laid off or furloughed on the plan, the employer then must decide to either pay 100% of the premium or collect employee share of contributions. If the employer chooses not to continue coverage, they can be terminated and offered COBRA.




April 7, 2020

Questions & Answers

1. RE: HIPAA and confidentiality. We would normally never communicate an employee’s illness. But times are different. Are we breaking HIPAA if we are communicating about someone being tested (or what not) due to COVID. 

    • The HIPAA Privacy Rule allows patient information to be shared to assist in nationwide public health emergencies, and to assist patients in receiving the care they need. In addition, while the HIPAA Privacy Rule is not suspended during a public health or other emergency, the Secretary of HHS may waive certain provisions of the Privacy Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act. The following link describes in detail what the rule is…. near the end is information regarding minimum necessary (make reasonable efforts to limit the information disclosed to accomplish the purpose, this includes continuing to apply a covered entity’s role-based access policies to limit access to protected health information to only those workforce members who need it to carry out their duties). For a covered entity (a group health plan) the biggest change is you can speak to providers, public health officials etc. regarding treatment of an individual, and can share with those at risk. I will answer this more in detail in today’s FAQ. https://www.hhs.gov/sites/default/files/hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf . Further, HIPAA requires that all uses, and disclosures of PHI be limited to the minimum necessary to accomplish the (permissible) purpose of the use or disclosure. This minimum necessary standard applies even when an exception to HIPAA’s authorization requirement is available. There are some exceptions to HIPAA’s minimum necessary standard (e.g., it does not apply to healthcare providers using PHI for treatment purposes), but, as with above, not all such exceptions are available to self-insured health plans.
    • In addition, a self-insured health plan is limited in what it can disclose to third-parties outside of those narrow exceptions provided above. This would include disclosures to the plan sponsor (generally, the employer), the media, or other third parties, which may otherwise seem warranted given the nature of the COVID-19 public health emergency (e.g., disclosing a workforce member’s positive coronavirus test to protect the sponsor’s workforce on the whole). It is important to consult with counsel to determine whether disclosure is appropriate under the circumstances and whether prior authorization from the individual is required.
    • For more information on permitted uses and disclosures of PHI in connection with the COVID-19 public health emergency, see the linked bulletin released by the U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights.

2. Do you send out a notice when you post to the blog? 

    • We always post on Facebook and LinkedIn right after posting on the blog bimgroup.us/insights


3. What does the special enrollment plan mean? 

    • A Special enrollment period is basically an open enrollment that would allow anyone who waived coverage in the beginning or at open enrollment and wants to come on the group health plan now, to do so. The carriers are allowing a special open enrollment period for those individuals to join the group health plan, as a result of COVID-19.


4. So, if employees can lose their benefits if we would have keep them on unemployment for 30 days or more? What if they r on the emergency FMLA?

    • Depends on the employer as well as the carrier. For example, if the employees are not working and the employer is still paying the premium to the carrier, they can keep those employees on the health plan.  You would have to have at least 1 employee actively working. If you maintain coverage, as an employer you need to decide – are we going to collect the employee portion of the payroll contribution, are we going to collect it as we go, when they get back? If the employer says we have laid off all employees and cannot continue to pay health insurance, you terminate benefits and/or employment, offer COBRA, and they go apply for unemployment. The employees may or may not be eligible for Medicaid, if not they can buy a policy in the individual market.
    • If they are on emergency paid sick leave or EFMLA you do need to keep them on the benefits, and they are still responsible for their share of the contribution. Again, as an employer, you need to decide when and how you will collect premiums.


5. How many months are insurance companies allowing this to continue without employees working? 

    • It depends on the carrier, but most are through May 31st as of today.


6. So that means if they can’t come back to work as of May 31and there is no extension from insurance companies it’s not the emergency FMLA then we would have to offer COBRA and terminate their plan? 

    • Correct. You would need to pay attention to the date that applies to the plan’s carrier (Again, May 31st in most cases).  If the date is not extended, you would terminate their benefits and offer COBRA.


7. UI benefits than what they would have made when employed? With the extra $600 a week, some could get more than their normal paycheck. 

    • Please disregard the answer in the live recording.  This is a corrected answer. Clarification has been issued regarding this topic. To confirm: UI payments will increase by $600 per week beginning the week of March 29, 2020 through July 31, 2020.
    • Example: If my benefit payment was $320 per week it will now be $920 per week starting on March 29, 2020. You will receive two payments one for $320 and one for $600. Under the CARE Act, the $600 payment is paid 100% by the federal government and will not be charged to employer accounts.
    • Due to the federally funded $600 supplement, it is possible that some would make more money unemployed than actively working. In fact, prior to the bill’s passage, a group of Senators expressed concern about whether these provisions would allow employees to collect more income than they otherwise would if they had retained their job, incentivizing employees to remain out of work. The proposed amendment identifying this concern was rejected in a vote by the Senate.

8. Resources 


March 31, 2020

Questions & Answers

1. The 4/1 effective date is for leave beginning on 4/1 or later, correct? Not for paycheck dates that occur 4/1 or later covering full pay periods that may have begun in March, right?  

    • Paid leave would begin 4/1/20


2. Regarding “essential employees”, the employer must employ under 500 to apply for E-FMLA – correct?  

    • Correct – this includes aggregated companies, part-time, full-time, etc.


3. Anthem is offering a special enrollment period for those who didn’t take employer-sponsored health insurance but now want it – through April 3rd. Does this apply just to Anthem?  

    • Anthem has extended special enrollment through April 3, 2020 and UHC has extended special enrollment through April 6, 2020; as of today, Humana has not.


4. Just to clarify on telehealth – Say I am having symptoms of a cold or something and I use telehealth, do I pay the co-pay for that if it’s not COVID related or is it available for everything since no one wants to go to the doctor and no one pays the co-pay right now?

    • Per United Healthcare: Starting March 31, 2020 until June 18, 2020, UnitedHealthcare will now also waive cost-sharing for in-network, non-COVID-19 telehealth visits for its Medicare Advantage, Medicaid and fully-insured Individual and Group market health plans
    • Per Humana: We are waiving our members’ out-of-pocket costs for telehealth visits with participating in-network providers for the next 90 days, beginning February 4, 2020.
    • Per Anthem’s COVID-19 page, members can use LiveHealth Online at no cost until June 14, 2020. They are recommending members use telehealth when they can, as it prevents them from spreading a virus and can help protect them from getting a virus while waiting with others at a physical facility.


5. We are a construction company and the field workers aren’t eligible for sick or vacation pay.   They get paid for what they work. We are considered essential so we are still working and we have plenty of work. If an individual decides he just doesn’t want to work now, is he entitled to this sick leave and E-FMLA?  When we don’t have work they are allowed to file for unemployment until the next job starts.  I’m just confused on who this sick leave actually applies to as far as field workers.

    • It depends on why they don’t want to work… If they are not working because:
      • They are unable to work or telework due to a Federal, State, or local quarantine or isolation order related to COVID-19;
      • They have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
      • They are experiencing symptoms of COVID-19 and are seeking medical diagnosis; or
      • They are caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
      • They are caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or
      • They are experiencing any other substantially-similar condition that may arise, they are eligible.If it’s simply they don’t want to work, then neither apply….  Just document, document, document the why.


6. We do have some elderly men working in the field, over 60.  They have raised some concerns about being there.  Fear mostly.  Is there anything that applies to those employees?  I know that group is the most targeted with this virus.  But I have looked and age is not discussed anywhere in anything I have found.  But again, we have work they are not sick nor do they have children that need care.  They are just scared of possibly getting it. 

    • This is what I would recommend for your guys over 60. If they are afraid to work because of it, I would be lenient and let them take the time off – they wouldn’t be eligible for pay under this reason. They could retain benefits if you lay them off or furlough them, as long as they continue to pay their share of the premiums.  The other option would be to have them get a note from their provider saying they are high risk and need to be off work. They could do this through a telehealth visit.  This would make them eligible for paid sick leave and paid E-FMLA, and again they would need to pay their share of premiums.


7. These “posters” that we are supposed to display – Are we required to hang them at the job sites too?  

    • As for posting the notice, if you can display it in a place where all employees can see it (i.e. main office), it’s not necessary to post at job sites; however if all employees don’t come to the main office, then yes, you would need to post at job sites.


A few additional items we discussed:

  • As a reminder, E-FMLA and Paid Sick Leave is effective 4/1/2020.
  • Part of the CARES Stimulus package now allows for Over the Counter medications to be eligible for FSA/HSA reimbursement. The package also allows feminine menstrual products to be an eligible expense. Blog post coming soon!
  • FMLA Information on the DOL Website


March 24, 2020

Questions & Answers

1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (E-FMLA)? 

    • The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020 
      • In our Facebook Live on March 24, 2020, we recommended (based on legal counsel advice) starting the leave retro to March 20, 2020; however, we received direct clarification from the DOL yesterday. 
      • The guidance makes clear that the laws are not retroactive. Employees laid off between now and April 1 are not entitled to benefits under either leave act, and employers cannot get federal reimbursement for any leave granted to employees before April 1.


2. Who are covered Employers? 

    • The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. 
      • Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.  
      • The DOL will use the “integrated employer test” under the FMLA. To be simplistic, if multiple entities owned by the same person or company are being operated as one, then all of the employees would count toward the 500 employee ceiling. 
    • Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. 
      • To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. 
      • You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.


3. Do you have any info relating to aid from insurance companies to employees who have been laid off of companies who contribute their plans for COVID-19?  

    • We do not have any information at this time of insurance companies assisting employees directly. Anthem, Humana and United Healthcare (fully insuredhave relaxed eligibility guidelines for employers to leave employees on the group health plan if the monthly premium is paidThe same applies to self-funded plans, however, we recommend checking with the plan’s stop loss carrier to ensure there are no issues. Your Bim Group account manager can assist you with this.  


4. Should or can someone who is going on E-FMLA apply for Medicaid if they are currently covered in our plan w/ Humana but can’t afford the premium? 

    • If the employee is covered by a group health plan, they are not eligible for Medicaid. If the employer is leaving the employees on the plan (which they should through E-FMLA (Emergency Paid Family Leave), I would recommend maintaining the employer group health plan.


5. If an employee uses LiveHealth (Anthem) online and they are not diagnosed with COVID-19 or come to find they do not have symptoms of COID-19, will that visit still be free of charge? Or will they then take the payment information after the call? 

    • Anthem will cover telehealth for any condition for fully insured groups, and self-funded groups that have elected to cover LiveHealth at no cost share. Copays/cost share for physical and Behavorial telehealth visits for health conditions will also be waived *This answer applies only to Anthem*


6. Is FMLA only available when we are open, but the employee cannot work due to illness or childcare? At the moment, we are mostly closed. So, would employees be able to qualify for FMLA, now since we’re technically closed?

    • If the employee is laid off or on furlough, there is no leave available. As an employer the decision would be 1) Are employees laid off /furloughed/terminated (so they can apply for unemployment, Medicaid, etc) or 2) Do we remain open (if not against any state executive order) and allow eligible employees to take paid sick leave  and/or E-FMLA. 


7. Is the virtual visit text by anthem that is covered at 100% pertaining to all the series? 

    • See Question #5.


8. To confirm, anyone who qualifies for the FMLA expansion Act – also qualifies for paid sick leave. Right? 

    • Correct.  An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. The employee may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons.  
      • The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave per the employer’s policy.  
        • After the first ten workdays have elapsed, an employee will receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act. 
    • An employee can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. 
      • The first 10 days may be unpaid, at the Employer’s discretion (however, the employee will also qualify for two weeks of paid sick leave) 
      • Company must allow employee to substitute any accrued paid leave time, such as sick days or vacation pay, during this 10-day period (same with paid sick leave) 
      • Employer must compensate employee at two-thirds the employee’s regular pay up to $200 per day or $10,000 in aggregate. 
    • Prohibitions: 
      • Employers may not require an employee to use other paid leave before the employee uses their paid sick time under the Act. 
      • Employers may not require the employee to search for or find a replacement to cover hours as a condition of leave.  
      • Failure to follow this section can be treated as a violation of the FLSA and can include fines, imprisonment (upon a second knowing offense), and liquidated damages to the employee of double the unpaid wages and reasonable attorney’s fees and court costs.


9. We have two employees who might want E-FMLA, but aren’t 100% sure yet. We are shut down, but still have employees working. I’m confused as to when I need to apply for them or start the process? 

    • The effective date for paid sick leave and/or E-FMLA is April 1, 2020. The first ten days of E-FMLA is unpaid (paid sick leave could apply during these ten days). If the employees are currently laid off, the leave does not apply. 


10. If you have a carrier who is being lenient on hours worked and keeping your coverage in place as long as you pay premium and you as an employer decide you don’t want to offer coverage starting May 31 d… then what? Do they have to maintain coverage and they have to continue?   

    • If there is no extension of coverage by the carriers beyond May 31, 2020 or if the employer choses to drop the group health coverage, the participants would be eligible for individual coverage or Medicaid (if qualified). When the group plan terminates, there is no option for COBRA. If the employer decided to offer coverage again, it would be a new plan and subject to underwriting requirements. 


11. An employee wants to know if this virtual visit that is free covers the whole series pertaining to the original question or is it each text in the series that there is a $19 charge?

    • This question is in regards to the new Anthem texting app, Sydney. The text application is $19 per text session. If the text session results in testing for COVID-19, any and all charges related to COVID-19 testing (test, office visit/telehealth, lab, etcwill be covered at 100% with no cost share to the member. Treatment (medication, hospitalization, etc) is covered, but cost share applies (deductible, coinsurance/copay).


12. Any guidance on student workers? Do they count in the number of employees and if so, do we have to pay them? If so, how do we determine the hours?   

    • If they are paid by the employer, then they would be included.  I recommend following the DOL’s advice on how to count hours worked by part-time employees.  
      • A part-time employee is entitled to leave for his or her average number of work hours in a two-week period.  
      • If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours.  
      • Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that. 
      • If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring.


13. Are seasonal employees (not eligible to participate in benefits) still eligible for sick leave? Ex: Interns 

    • If they are paid by the employer, then they would be included.  I recommend following the DOL’s advice on how to count hours worked by part-time employees. 


14. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave? 

    • A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.  
    • If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment. 


15. How much will an employee be paid while taking paid sick leave or expanded family and medical leave under the FFCRA? 

      • It depends on the employee’s normal schedule as well as why they are taking leave. 
        • If the employee is taking paid sick leave because they are unable to work or telework due to a need for leave because they (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis. In these circumstances, the employee is entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.   
        • If the employee is taking paid sick leave because they are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, the employee is entitled to compensation at 2/3 of the greater of the amounts above. Under these circumstances, the employee is subject to a maximum of $200 per day, or $2,000 over the entire two-week period.  
    • E-FMLA 
      • If the employee is taking expanded family and medical leave, they may take paid sick leave for the first ten days of that leave period, or they may substitute any accrued vacation leave, personal leave, or medical or sick leave they have. Employers cannot force them to take vacation/personal/sick leave first.  
      • For the following ten weeks, the employee will be paid for leave at an amount no less than 2/3 of the regular rate of pay for the hours they would be normally scheduled to work. 
        • The employee will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. 
    • The employee will receive for each applicable hour the greater of: 
      • Regular rate of pay, 
        • For purposes of the FFCRA, the regular rate of pay is the average of the regular rate over a period of up to six months prior to the date on which the employee takes leave.
        • If the employee hasn’t been employed by for six months, the regular rate is the average of the regular rate of pay for each week they employee has worked.
        • If the employee is paid with commissions, tips, or piece rates, these wages should be incorporated into the above calculation.
        • You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
      • The federal minimum wage in effect under the FLSA, or 
      • The applicable State or local minimum wage 
    • Should overtime hours be included?  
      • Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.  
      • In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. 
      • You cannot take 80 hours of paid sick leave for self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act. The maximum benefit is up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. The total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.


16. As an employer are we required to restore jobs of employees who take leave?  

    • Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work.  
    • However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA.  
      • This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.


17. How do employers alert their employees of the Act? Is there a notice requirement? 

    • The DOL released the Families First Coronavirus Response Act (FFCRA) notice on March 25, 2020.  
    • Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice? 
      • Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. 
      • Do I have to share this notice with recently laid-off individuals? 
        • No, the FFCRA requirements explained on this notice apply only to current employees. 
      • I am a small business owner. Do I have to post this notice? 
        • Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice. 
      • For more poster FAQs, visithttps://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions 
      • Where can I find the notice? 
      • Do I have to pay for notices? 
        • No. To obtain notices free of charge, contact the Department’s Wage and Hour Division at 1-866-4-USWAGE (1-866-487-9243). Alternatively, you may download and print the notice yourself from https://www.dol.gov/agencies/whd/posters


18. What forms are necessary for E-FMLA. The information available today advises employers to use the current FMLA Forms and provide current notices.  

We anticipate there will be further “guidance” from the DOL. Moreover, we do not know when the regulations (more formal than guidance) will be issued. However, the DOL is taking comments on the FFCRA through March 29.  

For the most current information on FFCRA, visit:   




The information discussed in each recording is based on the guidance available as of the date of the original broadcast. Regulatory agencies are issuing daily guidance; therefore, information is subject to change.

Consult with your own attorney before taking any action. In my role at Bim Group, I cannot provide legal advice. This information is provided for educational purposes only; it’s not intended to provide legal advice. Thank you.