The Bipartisan Budget Act of 2018 and the Tax Cuts and Jobs Act of 2017 liberalized the hardship distribution rules applicable to 401(k) and 403(b) plans. On September 23, 2019, the IRS issued final regulations — which we discussed in a previous blog — implementing the new hardship distribution rules. While some of the new rules were discretionary, there are several mandatory provisions that will take effect on January 1, 2020, including:

• Plans are prohibited from suspending employee deferral contributions following hardship distributions that occur on or after January 1, 2020; and

• Employees must represent in writing (including electronic representations) that they have insufficient cash or other liquid assets reasonably available to satisfy the need giving rise to hardship distribution requests that are made on or after January 1, 2020.

On December 12, 2019, the IRS issued Rev. Proc. 2020-9, clarifying when 401(k) plans must be amended to comply with the elimination of deferral suspension and written representation rules described above: December 31, 2021 for both individually designed and pre-approved 401(k) plans, which aligns with the deadline the IRS established for non-governmental 403(b) plans in Rev. Proc. 2019-39.

Key Takeaway: Although plan documents do not need to be amended immediately, plan sponsors should ensure that they are in operational compliance with all mandatory hardship distribution rules that become effective on January 1, 2020.

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Photo of Stephanie O. Zorn Stephanie O. Zorn

Stephanie O. Zorn is a principal in the St. Louis, Missouri, office of Jackson Lewis P.C.

Stephanie has over twenty years of experience representing management in employee benefits and employment matters, both as in-house counsel and in private practice.

Stephanie is co-lead of…

Stephanie O. Zorn is a principal in the St. Louis, Missouri, office of Jackson Lewis P.C.

Stephanie has over twenty years of experience representing management in employee benefits and employment matters, both as in-house counsel and in private practice.

Stephanie is co-lead of the firm’s Transactional Services group and spends a substantial amount of her practice assisting clients with the employment and employee benefits matters implicated in mergers and acquisitions, with a special focus on clients in the private equity, technology, consumer goods, manufacturing and healthcare sectors. Stephanie leads due diligence review, the drafting and negotiation of definitive deal documents, insurer and co-investor interface and closing and post-closing business integrations.

Stephanie’s employee benefits practice includes assisting clients with all aspects of a broad range of plans including retirement plans, health and welfare plans, nonqualified plans, executive compensation plans, severance plans and voluntary early retirement plans. Stephanie also defends plans and plan administrators in disability, group health plan and life insurance claim litigation including ERISA section 502(a)(1)(B) and (a)(3) claims. Stephanie’s practice also includes counseling clients on Internal Revenue Code, ERISA, COBRA, ACA, HIPAA and fiduciary compliance including investment selection, service provider reviews and plan committee issues.

Stephanie’s employment practice consists of counseling employers in connection with discrimination, harassment, disability accommodations, family and medical leave and wage and hour matters. Stephanie also assists clients with reductions in force and reorganizations, noncompete and confidentiality agreements, retention agreements, service provider classification, outsourcing and international labor and employment matters.

Stephanie is a frequent speaker on employee benefits and employment law issues.