IRS Guidance on Employer-Based Leave Donation Programs for COVID-19 Relief Organizations

In recent years, it has become the norm for the IRS to respond to a federally declared disaster by issuing guidance enabling employers to establish “Leave Donation Programs,” which allow employees to “convert” accrued vacation, sick, or personal leave benefits into an employer-paid monetary donation to a charitable relief organization, without the employee being taxed on the value of donated leave.1 Therefore, it is not surprising, but certainly welcome, that the IRS recently issued Notice 2020-46 (the Notice) to allow employers to adopt the same type of employer-based Leave Donation Programs in response to the COVID-19 pandemic.

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Agency Guidance on Health & Welfare Issues Related to COVID-19

As the COVID-19 pandemic continues, our clients are dealing with rapidly evolving compliance issues with respect to health and welfare benefit plans and the implementation of existing and new regulatory requirements. Below is a chart providing links to guidance issued by various government agencies with respect to health and welfare plan issues related to COVID-19. This chart is current as of May 12, 2020. There are a number of questions and issues outstanding, and we expect further guidance. Please contact your Faegre Drinker attorney with questions and/or updates regarding this guidance.

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Code Section 139: Little Known Disaster Relief Benefits Now in the Spotlight

As most of the nation continues under lockdown due to the COVID-19 pandemic, we have received inquiries about ways employers can provide additional benefits to employees during this unprecedented time.

On March 13, 2020, the COVID-19 pandemic was declared a “disaster” by President Trump under the Stafford Act. While this designation may not be enough to permit hardship distributions from all retirement plans, the “disaster” declaration under the Stafford Act does trigger availability of Code Section 139 – a little known and seldom used provision in the tax code added after the 9/11 terrorist attacks – that will permit an employer to provide tax-free “qualified disaster relief payments” to employees, if they meet certain requirements. First highlighted by our tax colleagues in a blog post on April 6, 2020, here we expand on how Code Section 139 works for our employer clients considering such a program.

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Ninth Circuit Reverses Long-Standing Precedent, Finds ERISA Claims Can Be Arbitrated

The Ninth Circuit’s recent decision forcing a 401(k) plan mismanagement lawsuit into arbitration is a significant ruling for plan sponsors. But it also leaves lingering questions about the enforceability of arbitration clauses written into plan documents. See Dorman v. Charles Schwab Corp., No. 18-15281, 2019 WL 3939644 (9th. Cir. Aug. 20, 2019).

Dorman is a putative class action involving allegations that the Schwab defendants breached their fiduciary duties by including Schwab-affiliated investment alternatives in its 401(k) plan, despite the funds’ alleged poor investment returns. Dorman, a former plan participant, sought monetary and other equitable relief on behalf of the plan under ERISA §§ 502(a)(2) and (a)(3). Schwab’s plan document included a mandatory arbitration provision for claims related to the plan and a waiver of class action lawsuits. Schwab filed a motion to compel arbitration, which was denied by the Northern District of California.

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