Benefits Monthly Minute

Summer Weekend Extends PCORI Deadline | Better Late Than Never: New EEOC COVID-19 Guidance

Summer Weekend Extends PCORI Deadline

The PCORI filing and payment deadline for plan years ending in 2020 is August 2, 2021, which is the next business day following the normal July 31 PCORI deadline. As in prior years, the annual fee is payable by insurers and self-insured plan sponsors, and is $2 (as adjusted) times the average number of covered lives for the applicable policy or plan year. As reported in IRS Notice 2020-84, the adjusted applicable dollar amount for policy years and plan years that end on or after October 1, 2019, and before October 1, 2020, is $2.54, and for policy years and plan years that end on or after October 1, 2020, and before October 1, 2021, the adjusted amount is $2.66.

KMK Comment: There are different methods of counting covered lives for purposes of PCORI fee calculations. Be sure to work with your benefits advisor to determine the most advantageous method for your plan.

Better Late Than Never: New EEOC COVID-19 Guidance

On May 28, 2021, the EEOC updated its Technical Assistance Questions and Answers addressing a variety of COVID-19-related employment topics. Of note, the newly added Section K acknowledges that the availability of COVID-19 vaccinations raises questions under the federal equal employment opportunity (EEO) laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII.  The guidance indicates that federal EEO laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations, and it also discusses the impact of the ADA and GINA when offering employer incentives for voluntary COVID-19 vaccinations. A few highlights are noted below:

  • Under the ADA, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community, subject to confidentiality requirements.
  • Under the ADA, an employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent if the incentive (which includes both rewards and penalties) is not so substantial as to be coercive. 
  • Under GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated. 
  • Under GINA’s Title II health and genetic services provision, an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.   
  • Under GINA, an employer may offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive if it takes certain steps to comply with GINA.

KMK Comment: Although this guidance provides some much-needed clarification, when deciding whether or not to require COVID-19 vaccines for employees, and whether or not to offer incentives, employers should carefully consider all applicable employment, disability, benefits, privacy, and recordkeeping requirements.

The KMK Law Employee Benefits & Executive Compensation Group is available to assist with these and other issues.

Lisa Wintersheimer Michel

John F. Meisenhelder

Antoinette L. Schindel

Kelly E. MacDonald

Rachel M. Pappenfus

KMK Employee Benefits and Executive Compensation email updates are intended to bring attention to benefits and executive compensation issues and developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.

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