President Biden announced that the COVID-19 Public Health Emergency (PHE) and the National Emergency declared by President Trump in 2020 will end on May 11, 2023.  The PHE relief issued in response to the pandemic affected group health plan coverage requirements related to COVID-19 prevention and treatment.  The National Emergency relief suspended deadlines that normally apply to certain employee benefit plans.  While seemingly simple in concept, the end of the PHE and National Emergency means employers soon will enter a murky transition period requiring special administrative attention. 

Calculating Deadlines After the National Emergency

The U.S. Department of Labor and the Department of the Treasury jointly issued deadline extension relief applicable to ERISA deadlines that normally apply to HIPAA special enrollment events, claims, appeals, COBRA elections, and COBRA premium payments, among others (the “Relief Events”).  The guidance included a transition rule such that once the National Emergency ends, the relief draws to a close. 

Specifically, under the relief, the normal deadlines for the Relief Events are suspended until the earlier of:  (1) one year from the date the individual first qualifies for the relief; or (2) 60 days after the end of the National Emergency – which would be July 10, 2023, if the National Emergency ends on May 11, 2023.  Special rules apply for COBRA elections and premium payments, so employees do not benefit from stacked deadline relief. 

Practically, this means the calculation of normal deadlines will resume on July 10, 2023, for individuals whose Relief Event date was after July 10, 2022.  We estimate this date was selected to follow the week when many take vacations to celebrate the 4th of July. 

Preparing for the End of the PHE and the National Emergency

Employers rely on third-party vendors to administer many of the Relief Events.  Rarely are employers directly involved in administering claims, appeals, or requests for external reviews.  Further, many employers outsource COBRA administration.  In these cases, employers should contact their third-party administrators, insurers, or vendors to confirm they are prepared for the end of the deadline relief and understand what administration during this transition period will entail. 

For employers who administer some or all of the COBRA functions in-house, now is the time to update notices to specify election periods and COBRA premium payment deadlines.  Clearly communicating the applicable election and premium payment deadlines will be key in mitigating COBRA litigation risk and compliance issues. 

Employers would also be well served to review COBRA notices previously issued to determine if an updated notice or communication is merited in light of the impending end of the relief.  With COBRA notice litigation still swirling, time spent to clearly and accurately communicate applicable deadlines for elections and premium payment obligations will mitigate the risk of claims from disgruntled participants (or their lawyers) insisting that coverage should remain in effect.  Depending upon the circumstances, providing an updated notice to individuals informing them of the exact deadline that applies to them may be a worthwhile time and expense-saving measure. 

Employers are also often involved with mid-year election change requests.  The deadline relief does not apply to all qualified status change events specified in Code Section 125 guidance – it only applies to special enrollment events under HIPAA. 

As the relief period draws to a close, employers need to be mindful of the transition period when calculating enrollment deadlines.  It may be helpful to broadly and proactively communicate the end of the deadline relief on benefit websites and portals.  

Communicating Coverage Changes

When the PHE ends on May 11, 2023, the requirement that group health plans provide COVID-19 testing, testing-related services, and vaccinations without cost sharing, among other coverage requirements, will also end.  Employers should contact their insurers and third-party administrators regarding any needed amendments to their group health plans and the plan to communicate these changes to plan participants. 

There are a number of moving targets that require close attention to individual deadlines on a participant-by-participant basis.  Employers should take steps now to discuss compliance strategies, including clear communications and implementing processes, with their vendors.  If you have any questions related to the ending of this relief or any other benefits-related questions, please contact the Jackson Lewis attorney with whom you regularly work.

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Photo of Suzanne G. Odom Suzanne G. Odom

Suzanne G. Odom is a principal in the Greenville, South Carolina, office of Jackson Lewis P.C. She focuses her practice on ERISA plans, employee benefits, and executive compensation matters.

Sue has worked extensively with all types of employer-sponsored retirement and welfare benefit plans…

Suzanne G. Odom is a principal in the Greenville, South Carolina, office of Jackson Lewis P.C. She focuses her practice on ERISA plans, employee benefits, and executive compensation matters.

Sue has worked extensively with all types of employer-sponsored retirement and welfare benefit plans, including pension, profit sharing, 401(k), 403(b), and 457(b) plans, ESOPs, and health, accident, disability, Section 125, flexible spending, and other welfare plans. Her clients include large and small for-profit companies across all industry sectors, non-profit corporations, and governmental entities.

As a result of Sue’s vast number of submissions and compliance matters, she has developed a close and professional working relationship with both the IRS and Department of Labor Representatives. Her practice is centered on providing her clients with solid and proactive fiduciary and business advice that assists them in avoiding the time and expense of employee benefits litigation.

Sue prides herself on her ability to think outside the box and work with clients to deliver the best business solutions possible.

Photo of Joy M. Napier-Joyce Joy M. Napier-Joyce

Joy M. Napier-Joyce is a principal in the Baltimore, Maryland, office of Jackson Lewis P.C.

Joy counsels clients in a broad range of benefit matters, including general compliance and administration of qualified retirement plans under ERISA and the Internal Revenue Code. She also…

Joy M. Napier-Joyce is a principal in the Baltimore, Maryland, office of Jackson Lewis P.C.

Joy counsels clients in a broad range of benefit matters, including general compliance and administration of qualified retirement plans under ERISA and the Internal Revenue Code. She also assists clients with welfare plan issues involving cafeteria plans, health plans, flexible spending accounts, group insurance products, COBRA and HIPAA. Joy has a particular focus on assisting employers with the various compliance requirements associated with federal health care reform and has been a frequent speaker on the topic. Her practice also includes advice on non-qualified deferred compensation arrangements and other executive compensation matters, including issues related to compliance with Section 409A of the Internal Revenue Code.

As part of her practice, Joy frequently assists clients with a variety of benefits issues arising in corporate mergers and acquisitions and restructurings of all forms. This includes analyzing benefits risks for buyers, handling plan corrections and terminations, strategizing and implementing benefits arrangements post-closing and advising on controlled group considerations.

Joy represents clients in dealings with the Internal Revenue Service and the Department of Labor, including EPCRS applications, private letter rulings, determination letter applications and plan audits. She negotiates with outside benefits providers, including prototype plan sponsors, third party administrators, insurers, actuaries and auditors. She also counsels both public and private clients on a wide array of tax and securities law issues in relation to equity-based arrangements.