COVID-19 and Employee Benefit Plans, Part 2: CARES Act

April 1, 2020

The new Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law March 27, 2020, offers relief for employers and employees enduring the financial pressures of the coronavirus pandemic.

Specific provisions make it easier for certain qualified retirement plan participants to access their retirement funds; others suspend required minimum distributions for 2020, delay employer contributions to defined-benefit pension plans for 2020, provide for reimbursement of certain over-the-counter medical products and establish other new group health plan requirements, set annual compensation limits for certain highly compensated employees of businesses who receive government financial assistance, and enable employers to pay for employee student loans on a tax-free basis.

Note: this is the second in a series of McGuireWoods client alerts relating to COVID-19 and employee benefits. For additional details, please see our other alerts:

  • COVID-19 and Employee Benefits: The Impact on Group Health Plans (March 24, 2020)
  • COVID-19 and Employee Benefits #3: Considerations for Compensation Committees (May 4, 2020)
  • COVID-19 and Employee Benefits #4: IRS Releases New CARES Act Guidance (June 25, 2020)
  • COVID-19 and Employee Benefits #5: IRS Allows Midyear Safe Harbor Retirement Contribution Changes (July 15, 2020)

Read on for a summary of the CARES Act provisions relating to employee benefit plans and compensation of certain employees.

Impact on Retirement Plans

The CARES Act eases distribution requirements for participant loans and waives penalties for certain COVID-19-related withdrawals from qualified defined contribution retirement plans. The CARES Act also suspends required minimum distributions from 401(k) plans and employer contributions to defined-benefit pension plans for 2020.

Loan Distributions

For the six-month period following the enactment of the CARES Act, participants of qualified defined contribution retirement plans may secure a loan up to the lesser of $100,000 or 100 percent of the participant’s vested accrued benefit under the plan. This provision increases the maximum plan loan amount from the lesser of $50,000 or 50 percent of the participant’s vested accrued benefit. The CARES Act also permits repayment of participant loans to be delayed for up to a year. Plans are not required to permit these changes.

Coronavirus-Related Distributions

The CARES Act also provides for a “coronavirus-related distribution,” which is a distribution of funds (up to $100,000 from all plans within a “controlled group”) from an eligible retirement plan made during the 2020 calendar year to a “qualified individual.”

A “qualified individual” is a person: (i) who is diagnosed with the virus SARS-CoV-2 or COVID-19 by a test approved by the Centers for Disease Control and Prevention; (ii) whose spouse or dependent (as defined in section 152 of the Code) is diagnosed with such virus or disease by such a test; or (iii) who experiences adverse financial consequences as a result of being quarantined or furloughed or laid off or having work hours reduced due to such virus or disease, being unable to work due to lack of child care due to such virus or disease, closing or reducing hours of a business owned or operated by the individual due to such virus or disease, or other factors as determined by the Secretary of the Treasury (or its delegate).

Plan administrators may rely on an employee’s certification that he or she meets one of the qualified situations to approve the coronavirus-related distribution. Coronavirus-related distributions are exempt from the 10 percent early withdrawal penalty and the 20 percent withholding requirement. Taxation of coronavirus-related distributions may be spread out equally over three years, beginning in the 2020 tax year, and such distributions can be repaid (in one or more installments) to any eligible retirement plan in which the participant is a beneficiary at any time during the three-year period beginning on the day after the participant receives the distribution. Repayment of the coronavirus-related distribution will be treated by the plan as a rollover contribution made through a trustee-to-trustee transfer; therefore, such repayment will not be subject to annual contribution limits.

Required Minimum Distributions (RMD) Waiver

Plan participants age 70-1/2 and older have said they face receiving required minimum distributions in 2020 from defined contribution plans that would be based on the value of their accounts at the end of 2019, but distributed from balances decimated by recent market declines. To address this situation, the CARES Act allows defined contribution plans described in Internal Revenue Code section 403(a) and (b), as well as IRAs and Code section 457 Plans, to suspend making required minimum distributions in 2020. The change does not appear to apply to defined benefit plans.

This suspension would also apply to participants who turned age 70-1/2 in 2019 and had not yet received their 2019 distribution. Amounts distributed in 2020 that would have been required minimum distributions but for the CARES Act will not be treated as eligible rollover distributions for certain purposes. (For example, employers are not required to provide the special tax notice under Code section 402(f) applicable to eligible rollover distributions.) Whether participants who have already received required minimum distributions for 2020 are able to roll over the distributions in an indirect (60-day) rollover to another retirement plan is unclear from the CARES Act but is likely to be addressed in future guidance, along with other topics, such as whether the 60-day indirect rollover deadline will be extended (as was done in 2009).

The suspension of required minimum distributions under the CARES Act is similar to the suspension that applied in 2009 after the financial crisis of 2008. If the new waiver rules apply the way similar rules applied in 2009, participants will be allowed to elect whether to receive required minimum distributions in 2020.

Single Employer Pension Plan Funding Relief

Employers may delay until Jan. 1, 2021, required minimum contributions under section 430(a) of the Internal Revenue Code to qualified, defined-benefit pension plans that would otherwise be due during 2020. For employers that make quarterly contributions, this includes quarterly contributions during 2020 as well. In addition, employers may treat the funding target attainment percentage calculated as of Dec. 31, 2019, for purposes of applying any required benefit restrictions under Section 436 of the Code for plan years that include 2020. These provisions should provide welcome short-term relief for employers hit by the “double whammy” of falling asset values and falling interest rates. However, they fall short of additional relief that plan sponsors had been seeking and which Congress and federal regulators have provided in connection with past financial crises. Additional funding relief may be forthcoming in future legislation or regulatory actions.

Impact on Group Health Plans

Group Health Plan Provisions Including Reimbursement of Certain Over-the-Counter Medical Products

The CARES Act builds on the provisions of the Families First Coronavirus Relief Act requirement that a group health plan provide access to COVID-19 testing, diagnosis and treatments in the following ways:

  • It expands the COVID-19 testing requirement to certain types of diagnostic testing, including those that may not yet be approved by the Food and Drug Administration.
  • It provides that a group health plan must reimburse a COVID-19 testing provider at the negotiated rate for such testing if the plan has a negotiated rate with the provider already in effect. If the plan does not have a negotiated rate with the provider, the reimbursement must be at the cash price or the plan may negotiate a rate that is less than the cash price for such testing.
  • Group health plans and health insurance issuers are required to cover, without cost-sharing, “qualifying coronavirus preventive services” (including vaccines), where the list of “preventive services” is determined by certain agencies identified in the CARES Act.
  • It enacts a safe harbor, effective as of the date of enactment, which allows high-deductible health plans with health savings accounts to cover telehealth services prior to a participant reaching the deductible, even where telehealth services do not relate to COVID-19.

Additionally, the CARES Act amended certain limitations that had been in effect as a result of the Patient Protection and Affordable Care Act. The CARES Act eliminates certain restrictions on pre-tax reimbursement of medications and products not prescribed by a physician, and permits reimbursement of over-the-counter medications and products from pre-tax accounts, such as health savings accounts, Archer medical savings accounts, healthcare flexible spending accounts and health reimbursement accounts. In addition, the CARES Act specifically includes menstrual care products as “qualified medical expenses” that are reimbursable by pre-tax accounts. The CARES Act changes are permanent and apply for expenses incurred after Dec. 31, 2019.

Impact on Executive Compensation

Compensation Limits for Certain Employees of Businesses That Receive Federal Government Financial Assistance

Sections 4004 and 4016 of the CARES Act impose limits on compensation paid by businesses that receive loans, loan assistance or other financial assistance under Title IV of the CARES Act.

For the period beginning on the date the loan or guarantee agreement is entered into, through the date ending one year after the loan or guarantee is no longer outstanding (the covered period), the business must comply with the following conditions.

  1. For any officer or employee of the business who in 2019 received aggregate base salary, bonuses, awards of stock and other financial benefits (total compensation) in excess of $425,000, the business may not pay to such officer or employee:
  1. total compensation from the business exceeding his or her 2019 total compensation for any consecutive 12 months during the covered period, or
  1. severance benefits exceeding more than two times his or her 2019 compensation.
  1. For any officer or employee of the business with total compensation from the business in excess of $3 million in 2019, the business may not pay to such officer or employee during any consecutive 12 months of the covered period total compensation in excess of the sum of:
  1. $3 million, plus
  1. 50 percent of the excess over $3 million of the total compensation received by the officer or employee in calendar year 2019.

For example, if an employee received $5 million in total compensation in 2019, the employee may not receive more than $4 million during any 12 consecutive months during the covered period — $3 million plus the product of (50 percent multiplied by the difference of ($5 million minus $3 million)).

Notwithstanding the foregoing, the covered period for air carriers or contractors receiving support under subtitle B of Title IV limits compensation payments during the entire two-year period beginning March 24, 2020, and ending March 24, 2022.

Please note that additional guidance is necessary to understand the definition of “Total Compensation” under the CARES Act. For example, it is unclear how compensation that is subject to a vesting schedule should be considered in determining total compensation for a 12-month period. In addition, it’s unclear how the limits apply with respect to an employee who began employment in 2019 or worked only a portion of 2019.

Impact on Fringe Benefits

Temporary Exclusion for Certain Employer Payments of Student Loans

The CARES Act contains a temporary provision that provides tax-free status to employer-paid student loan repayment programs by expanding the definition of “educational assistance” under Code §127. As a result, employers may provide each employee with up to $5,250 per year in tax-free assistance for student loan repayments and expenses incurred for tuition, fees, books, supplies and equipment, provided the requirements of Code §127 are satisfied. Employers may make loan repayments of principal and/or interest to the employee or to a lender, but the CARES Act disallows an employee’s deduction for any employer-paid interest on the student loan. This provision is effective for payments made after March 27, 2020, and before January 1, 2021.

Next Steps

Now that the CARES Act has been signed into law, employers must take affirmative steps to effectuate the provisions regarding plan loans, coronavirus-related distributions and RMD waivers, as these changes are optional. Employers who wish to implement these changes under the CARES Act have until the last day of the plan year beginning on or after Jan. 1, 2022 (i.e., for calendar year plan years, by Dec. 31, 2022). In the case of governmental plans, the date is the last day of the plan year beginning on or after Jan. 1, 2024. However, employers may immediately coordinate such operational changes with retirement plan record-keepers to permit plan participants to take advantage of these distribution options and RMD waivers as soon as possible.

Employers who sponsor single-employer defined-benefit pension plans should consider whether to take advantage of the 2020 funding relief provided by the CARES Act. For plans that make quarterly contributions, the first contribution is due in mid-April, so affected employers will need to decide quickly.

Employer group health plan sponsors should (i) review the terms of their plan documents to assess whether amendments are necessary to provide COVID-19 testing, telehealth services and reimbursement of those medical expenses that are now qualified medical expenses; and (ii) discuss coverage of these items with the plan insurer or third-party claims administrator to ensure proper administration of the group health plan.

Businesses wishing to take part in the CARES Act’s loan and financial support provisions under Title IV should identify the existing employment agreements, severance and deferred compensation arrangements that may need to be modified in order to limit annual compensation for affected employees in accordance with the CARES Act.

Additional Guidance and Other Issues

McGuireWoods will continue to monitor COVID-19-related legislation and guidance. For additional guidance on how the CARES Act may impact your business or other issues related to the administration and operation of employee benefit plans during the COVID-19 crisis, employers can contact the authors of this article or any other member of the McGuireWoods employee benefits team.

McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.

For related commentary on employee benefits and COVID-19, please see our other alerts in this series:

  • COVID-19 and Employee Benefits: The Impact on Group Health Plans (March 24, 2020)
  • COVID-19 and Employee Benefits #3: Considerations for Compensation Committees (May 4, 2020)
  • COVID-19 and Employee Benefits #4: IRS Releases New CARES Act Guidance (June 25, 2020)