Contact Congress on Employer Issues in CARES Act

March 22, 2020

The U.S. Congress is moving fast on phase III of a COVID-response bill known as the Coronavirus Aid, Relief, and Economic Security Act (the amended CARES Act). Tonight, we encourage you to contact your Members of Congress regarding several key components impacting your clients; paid-leave issues, telehealth benefits, COBRA subsidies, and surprise billing. (details below).

At the time of this writing, Leaders McConnell and Schumer are still at odds over key provisions of the legislation, primarily over provisions for corporations getting federal assistance, including policy on stock buybacks and executive pay and protections for individuals facing eviction. Following failed negotiations today, Speaker Pelosi now intends to advance competing legislation from House Democrats who want to see stronger protections for employees and significant more money for hospitals and providers. CLICK HERE for the latest analysis of the CARES Act from our counsels at Steptoe & Johnson.

With stock market futures falling sharply after the failure of the “motion to proceed” on the Senate floor, we are hopeful that there will be breakthroughs tonight. We can’t help but compare this to the analogy of the 2008 TARP legislation, which initially failed in Congress, with markets dropping even further. Then the legislation was passed. Sometimes in a crisis something needs to fail in order to advance, sadly.

Last week, The Council advocated for the inclusion of insurance premiums to be explicitly included as a form debt eligible for federal assistance to small businesses (currently defined under 500 employees) as part of the $1.6 trillion stimulus package. We’re incredibly grateful for the intervention of Sen. Tim Scott (R-SC) to advocate for this specific provision, and we are grateful that Senate Small Business Committee Chairman Marco Rubio (R-FL) agreed with Sen. Scott.

The two chambers are working to move incredibly fast on the package and we expect votes this week, but today’s failed negotiations make the schedule more questionable. We do not expect this to be the last stimulus measure—rumors abound about a Phase IV package. We also continue to work with our industry colleagues on business interruption policies.

We have been deeply engaged throughout the past week in encouraging the insurance industry and the policyholder community to come together in support of a federal facility tasked with paying (at least a percentage of) business interruption claims. The proposal we have embraced would afford the Treasury Department to contract with insurers/brokers/TPAs/loss adjusters on a purely voluntary basis. We regret to say that due to many factors, this issue is on “pause” for the moment.

We are hopeful that such an approach can be utilized as a mechanism for our clients to be made at least partially whole. The overwhelming sentiment we hear from brokerage executives is that everyone in the business community is looking into the abyss, and we do NOT wish to be on the sidelines in getting relief to our clients. We will keep you apprised on these very serious efforts.

Regarding employer-specific issues, we strongly encourage you to contact your Member of Congress on the following issues:

Paid Leave Issues

Although the CARES Act does not include expanded emergency paid leave for larger employers, such efforts to expand the application of the paid leave requirements continue.

Key Talking Points

If Congress considers expanding the emergency paid leave requirements of the Families First Coronavirus Response Act to larger employers, it is imperative — just as is the case for health and retirement benefits — that any policy enacted permit employers to offer paid leave to their employees on a uniform and consistent basis nationwide.

Health Policy Issue: Telehealth Benefits

The CARES Act includes a provision to allow employers and health plans to cover telehealth services on a pre-deductible basis in Health Savings Account (HSA)-eligible High Deductible Health Plans (HDHPs) during this health care crisis. Please voice your support for including this provision.

Talking points: Expanding access to telehealth services improves access to appropriate care for all Americans and provides necessary medical care in a manner designed to support the practice of social distancing, thereby helping prevent the further spread of the coronavirus. We urge Congress to allow employers and health plans to cover telehealth services on a pre-deductible basis in Health Savings Account (HSA)-eligible High Deductible Health Plans (HDHPs) during this health care crisis.

Health Policy Issue: Continued Support for Employer-Provided Health Care Coverage/COBRA Subsidies

Congress should include provisions in the CARES Act to support continued employer-provided health coverage.

Talking Points: As was done in the 2008-2009 recession, Congress should provide COBRA subsidies to help furloughed or terminated employees obtain continued access to health coverage.

Health Policy Issue: Surprise Billing

The CARES Act does not include surprise billing legislation. Regrettably, it does include a provision that may require employers to reimburse a provider’s “cash price” or “billed charge” for COVID-19 testing.

Talking Points: All efforts should be made to support the health care system and providers who are on the front lines of fighting COVID-19. We ask Congress to guard against any potential for excessive charges to patients and health plans by out-of-network providers during this crisis. Legislation should NOT require employers to reimburse a provider’s “cash price” or “billed charge” for COVID-19 testing.