While much of the attention by regulators has been focused on the coronavirus (COVID-19) response and CARES Act/FFCRA guidance, they have not forgotten about the SECURE Act’s introduction of pooled employer plans (PEPs) (centrally administered defined contribution plans that can be joined by multiple unrelated employers).
One of the simplest yet most integral parts of meeting your ERISA fiduciary duties is “sticking to the plan.” Section 402(a)(1) of ERISA requires that every employee benefit plan it covers be established and maintained pursuant to a written instrument.
Establishing a written plan document is a nonfiduciary “settlor” activity. This means that all of the decisions that go into designing the plan are not subject to the ERISA standard of care and cannot be challenged for a breach of fiduciary duty.
On the other hand, following the written plan document in the day-to-day management and administration of the plan is a fiduciary duty under Section 404(a)(1)(D) of ERISA to the extent that it is consistent with ERISA. ERISA requires strict compliance, and veering from the plan’s written terms is generally a per se violation of ERISA. Failure to follow the written plan terms is the most obvious breach of fiduciary duty for a court or regulatory agency to spot and enforce. For example, where a fiduciary’s decision may or may not plainly be a breach of prudence under ERISA, a clear violation of the plan’s written terms may otherwise be the court’s or regulatory agency’s path to finding a breach.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act that was signed into law on March 27 contains several emergency measures affecting retirement plans. The CARES Act gives plan sponsors the option of making available to participants, effective immediately, penalty-free coronavirus-related distributions as well as plan loans increased beyond the amount otherwise permitted under Internal Revenue Code (IRC) 72(p). Plan amendments for these provisions need not be adopted until the last day of the plan year beginning in 2022 (2024 for governmental plans). As plan sponsors eagerly put into place a portion or all of these relief measures, it is important to consider the special mid-year amendment rules that apply to safe harbor 401(k) plans.
Due to widespread court closures as a result of the coronavirus (COVID-19) pandemic, it may be difficult for participants or their attorneys to obtain a certified copy of a domestic relations order that many retirement plans require as part of the procedures for processing qualified domestic relations orders (QDROs). To address this issue, plans might consider adopting temporary procedures that allow for the continued qualification and processing of QDROs during these extraordinary circumstances without creating permanent exceptions to their normal QDRO procedures.
Internal Revenue Service (IRS) regulations require that spousal consent to the waiver of a qualified joint and survivor annuity (QJSA) that is necessary to elect an optional retirement payment form must be signed in the “physical presence” of a plan representative or notary—a requirement that is difficult to satisfy in a time of social distancing due to the coronavirus (COVID‑19) pandemic.
Many plan administrators are loathe to default all married participants into the QJSA or qualified optional survivor annuity (QOSA) simply because the IRS regulations did not contemplate the extraordinary and unprecedented circumstances caused by the pandemic or the development of technology that would protect the interests of the spouse even without a “physical presence” waiver. While available technology may provide plan administrators and sponsors with alternative means for obtaining spousal waivers, it is important for plan administrators to appreciate the issues and consider the risks.
The $100,000 limit on coronavirus‑related distributions (CVRD) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) is both an individual limit and a plan limit. Tracking and enforcing the $100,000 limit has the potential to create special compliance issues for employers and controlled group affiliates that sponsor more than one retirement plan and have individuals with an account balance under more than one of those plans.
Under the CARES Act, an eligible individual—that is, an individual who satisfies the requirements to be eligible to take a CVRD (discussed in in more detail in our prior blog post)—may take CVRDs during calendar year 2020 of up to $100,000. This individual limit applies in the aggregate to all CVRDs from the individual’s IRAs and employer‑sponsored retirement plans.
The IRS has extended the last day of the Initial Remedial Amendment Period for Section 403(b) plans from March 31, 2020 to June 30, 2020. As described in our earlier LawFlash, the Initial Remedial Amendment Period permits employers to correct form defects in their plan documents retroactive to as far back as January 1, 2010. The IRS determined that under the current circumstances, it was appropriate to extend the deadline given the current strains on tax-exempt employers.
UPDATED March 24, 2020
The following states have been declared major disaster areas and, where indicated, are eligible for the Federal Emergency Management Agency’s (FEMA’s) Crisis Counseling Program, which FEMA identifies as a form of individual assistance:
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Major Disaster Area
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Date Declared
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Incident Period
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Crisis Counseling Program or other Individual Assistance
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March 20, 2020
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January 20, 2020, and continuing
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March 22, 2020
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January 20, 2020, and continuing
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March 22, 2020
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January 20, 2020, and continuing
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March 23, 2020
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March 21, 2020, and continuing
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March 24, 2020
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January 20, 2020, and continuing
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* Unlike the announcements regarding the other states identified in this chart, FEMA's announcement of Iowa as a major disaster area did not include any reference to the Crisis Counseling Program or other individual assistance being available at this time. However, this does not preclude FEMA from identifying individual assistance that is available in Iowa at a later date.
Our employee benefits and executive compensation practice is available to help employers evaluate and troubleshoot potential issues arising from the changing work environment and economic situation caused by the COVID-19 pandemic. This guidance reviews the employee benefits and executive compensation issues that we have been assisting clients with in the last few days.
Please contact the authors or your Morgan Lewis contacts if you have questions related to employee benefits and executive compensation in the midst of coronavirus COVID-19. For updated, comprehensive information about COVID-19, please see our resource page.
The US Supreme Court recently decided a closely watched ERISA case against employers and fiduciaries. Under Section 413 of ERISA, the statute of limitations for a fiduciary breach claim is shortened from six years to three years if the plaintiff has “actual knowledge” of the breach.
On February 26, the Supreme Court determined in Intel Corp. Investment Policy Committee v. Sulyma that the six-year statute may apply—even if the fiduciary disclosed its actions to participants in accordance with ERISA—if the participants failed to read or could not remember reading the disclosures. In the Court’s unanimous view, “actual knowledge” means the participant must have become aware of the relevant information.
