The Washington Report
January 6, 2021
Note to subscribers: Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline. Stay healthy and safe! ~The Washington Report team
President Trump Signs COVID Relief and Government Funding Bill Into Law
On December 27, 2020, President Trump signed into law a $900 billion COVID relief and government funding bill (Consolidated Appropriations Act, 2021 - H.R. 133), averting a government shutdown. Congress approved the legislation on December 21, 2020. The Act provides for government spending and coronavirus relief, and also includes temporary rules that allow employers to provide additional flexibility for health and dependent care flexible spending accounts (FSAs), as well as provisions on employer group health and welfare plans relating to: surprise medical billing; price transparency and disclosure rules; reporting on pharmacy benefits and prescription drug costs; student loan extensions; and mental health parity rules.
For additional information, please see President Trump Signs Funding Bill Into Law; Provides Delivery of FSA Relief and Employers Get Surprise Medical Billing, Price Transparency Rules, and More in COVID-Relief Act in the Publications section of this newsletter.
The full text of H.R. 133 is available here.
OCR Issues FAQs on HIPAA, Exchanges, and Disclosures of PHI for Public Health Purposes
On December 18, 2020, the Office for Civil Rights (OCR) at the Department of Health and Human Services issued guidance (in the form of Frequently Asked Questions (FAQs)) on how HIPAA permits covered entities and their business associates to use health information exchanges (HIEs) to disclose protected health information (PHI) for the public health activities of a public health authority (PHA). The guidance provides examples relevant to the COVID-19 public health emergency on how HIPAA permits covered entities and their business associates to disclose PHI to an HIE for reporting to a PHA that is engaged in public health activities. The FAQs are provided below:
- What is an HIE?
- When does the HIPAA Privacy Rule permit a covered entity or its business associate to disclose PHI to an HIE for purposes of reporting the PHI to a PHA, without an individual's authorization?
- Can a covered entity rely on a PHA's request to disclose a summary record to a PHA or HIE as being the minimum necessary PHI needed by the PHA to accomplish the public health purpose of the disclosure?
- May a covered entity disclose PHI to a PHA through an HIE without receiving a direct request from the PHA?
- May an HIE provide PHI it has received as a business associate of a covered entity to a PHA for public health purposes without first obtaining permission from the covered entity?
- Is a covered entity required to provide notice to individuals about its disclosures of PHI to a PHA for public health purposes? Is an HIE that is a business associate required to provide such notice?
The news release is available here.
The FAQs are available here.
IRS Extends Relief to Physical Presence Requirement for Notary for Six Months
On December 21, 2020, the Internal Revenue Service (IRS) released Notice 2021-03, which extended the temporary relief from the requirement to have the “physical presence” of a spouse in order to have a notary or plan representative witness their written consent to a participant’s election. This relief was previously provided in IRS Notice 2020-42 but would have expired on December 31, 2020. For the period from January 1, 2021, through June 30, 2021, Notice 2021-03 continues to allow a notary to witness consent to an election via live audio-video technology that meets the notary requirements following state laws that apply to notaries or to be witnessed by a plan representative using a live audio-video technology that meets specific requirements.
IRS Notice 2021-03 is available here.
IRS Provides COVID-19 Relief for Employers Using Automobile Lease Valuation Rule
On January 4, 2021, the Internal Revenue Service (IRS) released Notice 2021-07, which provides temporary relief in response to the ongoing COVID-19 pandemic for employers using the automobile lease valuation rule to value an employee’s personal use of an employer-provided automobile for purposes of income inclusion, employment tax, and reporting. Due solely to the COVID-19 pandemic, if certain requirements are satisfied, employers and employees that are using the automobile lease valuation rule to determine the value of an employee’s personal use of an employer-provided automobile may instead use the vehicle cents-per-mile valuation rule to determine the value of an employee’s personal use of an employer-provided automobile beginning as of March 13, 2020.
IRS Notice 2021-07 is available here.
DOL Updates FAQs on FFCRA
On December 31, 2020, the Department of Labor (DOL) announced additional guidance to provide information to workers and employers about protections and relief offered by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s paid sick leave and expanded family and medical leave requirements expired on December 31, 2020. The new guidance, in the form of Frequently Asked Questions (FAQs) found on the website, addresses whether workers who did not use their leave entitlement under the FFCRA in 2020 may use such leave after December 31, 2020. It also explains how the DOL will maintain its enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired.
The following questions (Numbers 104 and 105) were released on December 31:
- I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020?
- I used six weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired?
The news release is available here.
The FAQs are available here.
DOL Issues Guidance Supporting Workplace Flexibilities Through Virtual Communication
On December 28, 2020, the DOL’s Wage and Hour Division (WHD) announced new guidance related to virtual communication in the workforce during the pandemic. In its news release, the DOL states that “As employers continue to meet the challenges presented to their businesses by the coronavirus, and as telework arrangements and virtual communication increasingly provide solutions, the agency provides additional guidance to maximize the benefits of these arrangements for employers and workers alike.” The guidance comes in the form of two new Field Assistance Bulletins (FABs), as briefly summarized below:
- FAB 2020-07 addresses when, as a matter of enforcement policy, the WHD will consider electronic posting by employers by email or an internet or intranet website to satisfy the employer’s requirement to provide employees with required notice of their statutory rights under a variety of federal labor laws.
- FAB 2020-08 addresses when the WHD will consider telemedicine an “in-person” visit for the purposes of establishing a serious health condition qualifying for protection under the Family and Medical Leave Act.
The news release is available here.
FAB 2020-07 is available here.
FAB 2020-08 is available here.
IRS Issues Standard Mileage Rates for 2021
On December 22, 2020, the IRS published Notice 2021-02, which provides the 2021 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes. This Notice also provides the amount taxpayers must use in calculating reductions to basis for depreciation taken under the business standard mileage rate, and the maximum standard automobile cost that may be used in computing the allowance under a fixed and variable rate plan.
Beginning on January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:
- 56 cents per mile driven for business use, down 1.5 cents from the rate for 2020;
- 16 cents per mile driven for medical or moving purposes for qualified active duty members of the Armed Forces, down 1 cent from the rate for 2020; and
- 14 cents per mile driven in service of charitable organizations (the rate is set by statute and remains unchanged from 2020).
The standard mileage rate for business use is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs.
IRS Notice 2021-02 is available here.
EEOC Updates COVID Publication Addressing Vaccine Questions Related to ADA and GINA
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the federal equal employment opportunity laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, now includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). This includes issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination.
For more information, please see the Aon bulletin EEOC Issues Employer Guidance on COVID-19 Vaccinations in the Publications section of this newsletter.
The updated EEOC publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is available here.
Employers Get Surprise Medical Billing, Price Transparency Rules, and More in COVID-Relief Act
On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act of 2021 (the “Act” – H.R. 133). In addition to provisions for COVID-19 relief and for government spending for Fiscal Year 2021, the Act includes provisions on employer group health and welfare plans relating to:
- Surprise medical billing;
- Price transparency and disclosure rules;
- Reporting on pharmacy benefits and prescription drug costs;
- Student loan extensions; and
- Mental health parity rules.
The Aon bulletin, which focuses on the group health and welfare plan provisions of the Act, is available here.
President Trump Signs Funding Bill Into Law; Provides Delivery of FSA Relief
On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021 (the “Act” – H.R. 133). Congress approved the legislation on December 21, 2020. The Act provides for government spending and coronavirus relief, including temporary rules that allow employers to provide additional flexibility for health and dependent care flexible spending accounts (FSAs).
The Aon bulletin on HR. 133 is available here.
EEOC Issues Employer Guidance on COVID-19 Vaccinations
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers on COVID-19 vaccinations and the applicability of various equal employment opportunity laws, including the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and Title VII of the Civil Rights Act of 1964.
The Aon bulletin, which covers some of the EEOC’s guidance, is available here.
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