On May 18, 2021, the IRS released much anticipated guidance under IRS Notice 2021-31 supplying detailed information on various implementation issues related to the COBRA premium subsidy under the American Rescue Plan Act of 2021 (ARPA). The new guidance provides information across several topics and contains 86 questions and answers including:
- who is eligible for this COBRA premium assistance
- what constitutes a reduction in hours of employment or an involuntary termination of employment that makes an individual eligible for the COBRA premium assistance
- what coverage is eligible for the premium assistance
- the period of time that the premium assistance is available
- the extended election period for COBRA coverage
- calculation of COBRA premium assistance credit
- how to claim the COBRA premium assistance credit
In this blog, TRI-AD is providing specific information regarding involuntary terminations and reduction of hours which is essential for determining Assistance Eligible Individuals (AEI) for the COBRA subsidy.
Questions 24 – 34 of the Notice (page 14 of the notice) address involuntary terminations. Below is the information provided. However, refer to the Notice for more detailed descriptions, if necessary.
Involuntary terminations include the following and are based on facts and circumstances:
- An involuntary termination of employment means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services.
- An employee-initiated termination of employment if the termination of employment constitutes a termination for good reason due to employer action that results in a material negative change in the employment relationship for the employee analogous to a constructive discharge.
- A termination designated as voluntary or as a resignation, where the employee was willing and able to continue performing services, so that, absent the voluntary termination, the employer would have terminated the employee’s services, and that the employee had knowledge that the employee would be terminated.
- Involuntary termination occurs when the employer takes action to terminate the individual’s employment, if before the action there is a reasonable expectation that the employee will return to work after an illness or disability has subsided. However, the mere absence from work due to illness or disability before the employer takes action to terminate the employee is not involuntary termination of employment. Reduction of hours may apply if there is a loss of health coverage.
- Termination of employment for cause.
- Resignation as a result of a material change in the geographic location of employment for the employee.
- Participation by an employee in a window program under which employees with impending terminations of employment are offered a severance agreement to terminate employment within a specified window of time.
- Employee-initiated termination of employment in response to an involuntary material reduction in hours that did not result in a loss of coverage.
- The employer’s decision not to renew an employee’s contract if the employee was willing to continue the employment relationship with a similar contract or no contract. However, if the contract was for a set term and was not renewable, the completion of the contract is not an involuntary termination.
Involuntary terminations do NOT include:
- Death of the employee
- Termination of employment for gross misconduct
- An employee-initiated termination of employment due to general concerns about workplace safety due to a health condition of the employee or a family member of the employee. However, a termination of employment would be involuntary if the employee can demonstrate that the employer’s actions (or inactions) resulted in a material negative change in the employment relationship analogous to a constructive discharge.
- An employee-initiated termination of employment unrelated to an action or inaction of the employer, such as a health condition of the employee or a family member, inability to locate daycare, or other similar issues, generally will not rise to the level of being analogous to a constructive discharge absent the employer’s failure to either take a required action or provide a reasonable accommodation.
- Employee-initiated termination of employment because a child is unable to attend school, or a childcare facility is closed due to COVID-19. However, if there is a temporary leave of absence under these circumstances such that the employer and employee intend to maintain the employment relationship, this is a voluntary reduction in hours and if loss of health coverage occurs, this individual would be subsidy eligible.
- Retirement – however if absent retirement, the employer would have terminated the employee, and the employee was willing to continue to work, and the employee had knowledge he or she would be terminated, the retirement is an involuntary termination.
- Voluntary terminations
REDUCTION IN HOURS
Questions 21 – 23 of the Notice (page 13 of the notice) address reduction in hours. Below we have included the Department of Labor’s (DOL) rules as well. Refer to the Notice for more detailed descriptions if necessary.
Reduction in hours include the following as long as the employee remains employed and there this is a loss of health coverage:
- Voluntary or involuntary reduction in hours
- Reduced hours due to change in a business’s hours of operations
- A change from full-time to part-time
- Taking of a temporary leave of absence
- Furloughed employees – the IRS notice defines the term “furlough” as a temporary loss of employment or complete reduction in hours with a reasonable expectation of return to employment or resumption of hours (for example, due to an expected business recovery of the employer) such that the employer and employee intend to maintain the employment relationship. A furlough may be a reduction in hours regardless of whether the employer initiated the furlough, or the individual participated in a furlough process analogous to a window program.
- A work stoppage, either as the result of a lawful strike initiated by employees or their representatives or a lockout initiated by the employer, as long as at the time the work stoppage or the lawful strike commences the employer and employee intend to maintain the employment relationship.
This IRS guidance is welcome news as notifications must be mailed by May 31, 2021 to all AEIs. The guidance also recognizes that the IRS is aware of several additional issues related to the COBRA subsidy provisions in ARPA that are not addressed in this new notice. The IRS is continuing to consider these issues and will possibly issue guidance about them.
TRI-AD and our Associates’ suggestions or recommendations shall not constitute legal advice. No content in our communications can be construed as tax or legal advice and TRI-AD may not be considered your legal counsel or tax advisor. Clients are encouraged to consult with their tax advisor and/or attorney to determine their legal rights, responsibilities, and liabilities. This includes the interpretation of any statute or regulation, federal, state, or local; and/or its application to the clients’ business activities.