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Multiemployer Pension Plans (and Contributing Employers) Look to American Rescue Plan for Relief

April 13, 2021

The American Rescue Plan Act 2021, signed into law by President Joseph Biden on March 11, 2021, provides for significant relief to the most troubled multiemployer pension plans. The extent to which such relief also extends to the employers that contribute to those plans is currently an unanswered question, pending further guidance from the Pension Benefit Guaranty Corporation.

The American Rescue Plan Act 2021 (ARPA) establishes a new Treasury-backed Pension Benefit Guaranty Corporation (PBGC) fund to which eligible plans may apply for special financial assistance. The special financial assistance is not intended to “fully fund” eligible plans. Rather, eligible plans will only be entitled to receive an amount sufficient to pay all benefits through 2051. The financial relief will extend to any benefits previously suspended under the Multiemployer Pension Reform Act of 2014 (MPRA). As a result, plans that previously suspended benefits under MPRA will generally be required to restore those benefit suspensions if they receive financial assistance under ARPA. Special financial assistance will not, however, cover adjustable benefits that have been reduced or eliminated under a rehabilitation plan. The financial assistance will be paid in a single lump sum, without any repayment obligation.

By July 9, 2021, the PBGC is required to issue guidance on the application process and other requirements to receive financial assistance, along with any limitations or conditions attached to the receipt of assistance.

Criteria for and Amount of Assistance

To qualify for financial assistance, a plan must meet both a threshold eligibility test and an economic need-based test.

The threshold eligibility test requires a plan to meet at least one of these four conditions:

  • The plan became insolvent after December 16, 2014, and remains insolvent as of March 11, 2021, but has not been terminated.
  • The plan has suspended benefits under MPRA.
  • The plan is in critical and declining status in plan year 2020, 2021, or 2022.
  • In plan year 2020, 2021, or 2022, the plan is
    • in critical status,
    • has a so-called “modified funded percentage” of less than 40% (determined on a current liability basis), and
    • has a ratio of active to inactive participants of less than 2–3.

If a plan meets one of the four initial eligibility conditions, the amount of financial assistance it will receive depends on whether and how much money it needs under the economic need-based test. Under the need-based test, eligible plans are only entitled to financial assistance in an amount that would allow a plan to pay all benefits (including benefits suspended under MPRA, but excluding adjustable benefits that have been cut under a rehabilitation plan) through 2051. If a plan is not currently projected to be insolvent—that is, unable to pay benefits—by 2051, it is possible it will not qualify for any actual special financial assistance under this need-based test, even though it meets one of the initial eligibility requirements. And the sooner a plan will become insolvent, the more financial assistance it will be entitled to receive.

Priority for Certain Plans

The new law empowers the PBGC to issue regulations that prioritize the most troubled plans. Regulations may provide that, for up to two years following ARPA’s enactment, an otherwise eligible plan may not file an application unless one of the following conditions is met:

  • The plan is insolvent or likely to become insolvent within five years of March 11, 2021.
  • The PBGC projects that the plan would require more than $1 billion of financial assistance (i.e., if the plan were to become insolvent) if special financial assistance is not provided.
  • The plan has suspended benefits under MPRA.
  • The PBGC determines that assistance is appropriate based on similar circumstances.

These regulations may resemble the rules the PBGC issued to prioritize “systemically important” multiemployer plans under MPRA. Applications for assistance are due by December 31, 2025.

Use of Assistance

ARPA provides that a plan that receives special financial assistance may only use the assistance money (and earnings on the assistance money) to make benefit payments and pay plan expenses. Plans that previously suspended benefits under MPRA will generally be required to restore those suspensions as a condition to receiving financial assistance, and must make retroactive payments of the suspended amounts (either in a lump sum or in installments over five years). Plans will also be required to segregate the special financial assistance, as well as any earnings, from other plan assets. The amounts must be in invested in investment-grade bonds or in other investments approved by the PBGC.

The PBGC may impose conditions on plans that receive special financial assistance. Under these conditions, the PBGC may restrict accrual rates, retroactive benefit improvements, reductions in employer contributions, and the diversion of employer contributions—and allocation of expenses—to other plans. In addition, the PBGC may impose special rules relating to the calculation of withdrawal liability for a plan that receives financial assistance and/or impose plan asset allocation requirements. Plans that receive assistance will not be permitted to suspend benefits under MPRA, but the PBGC will not prohibit other benefit reductions (including adjustable benefit suspensions pursuant to a rehabilitation plan).

Withdrawal Liability

ARPA’s effect on multiemployer withdrawal liability is currently an open question. Notably, the House version of the bill expressly provided that, for purposes of determining an employer’s withdrawal liability, plans would not be permitted to take into account the financial assistance for 15 years after receipt of the assistance (i.e., the financial assistance the plan received, and the earnings on the assistance, would not be treated as plan assets for purposes of determining a withdrawing employer’s withdrawal liability). If that provision had been included in the final version of the legislation, employers that withdrew from a plan within 15 years after a plan’s receipt of assistance would have generally incurred the same amount of withdrawal liability, whether or not the plan received financial assistance. The final version of the bill removed that provision, but only to avoid a procedural violation under the budget reconciliation process.

The absence of this withdrawal liability provision from the final bill does not necessarily mean that this type of rule, or something similar, will not ultimately apply to withdrawing employers. ARPA specifically permits the PBGC to impose special withdrawal liability rules on plans that receive financial assistance. So, we think it is likely that the PBGC will issue rules or guidance that limits the use of financial assistance when calculating a plan’s unfunded vested benefits for withdrawal liability purposes. If the PBGC does not establish this type of limitation, the aggregate withdrawal liability assessed by a plan that receives assistance would be significantly lower immediately following the receipt of the assistance. This could incentivize employers to withdraw from these plans, further deteriorating the plan’s contribution base. The PBGC could adopt the 15-year period that was stripped from the final bill, or it could require plans to disregard assistance for purposes of calculating withdrawal liability for some other period of time, such as 10 years, analogous to the requirement under current law that plans disregard MPRA suspensions for 10 years.

In any case, for reasons other than withdrawal liability, ARPA could potentially make it less costly and risky for employers to continue to participate in a plan that receives financial assistance. For example, some financially troubled plans that currently impose annual contribution rate increases under rehabilitation plans may ultimately not need to impose additional contribution rate increases in the future. As a result, it is possible that fewer employers will withdraw from plans that receive financial assistance, thereby decreasing the likelihood of a so-called “mass withdrawal” (involving the withdrawal of all or substantially all employers from a plan).

Additional Relief

ARPA also provides the following other types of relief to multiemployer pension plans:

  • A plan may elect the same “zone” status (e.g., green, yellow, red, or deep red) that applied in the previous plan year for either the 2020 or the 2021 plan year. If a plan was in endangered or critical status, it will not be required to update its funding plan or rehabilitation plan until the plan year following the year of the election. If the plan, but for this election, would have been in critical status, it can take advantage of the relief available to plans in critical status plans—that is, the plan will not be required to meet so-called “minimum funding” standards under ERISA and the Internal Revenue Code. If the plan makes this election, it must notify participants, beneficiaries, bargaining parties, the PBGC, and the US secretary of labor.
  • A plan operating under a funding improvement or rehabilitation plan in plan year 2020 or 2021 may extend the improvement or rehabilitation period an additional five years. Normally, the funding improvement or rehabilitation period is 10 years (although certain plans may be able to elect longer periods).
  • A plan that meets an applicable solvency test may do the following:
    • Smooth the actuarial value of assets in 2020 and 2021 over as many as 10 years. Plans normally spread the value of assets, including experience losses, over five years. Additionally, a plan may elect to treat assets as 130% of its fair market value when calculating the value of assets (plans are normally limited to an actuarial value of 120% over fair market value). Because plans determine funding requirements based on the actuarial value of assets, this relief will cushion plans from sharp increases in required minimum funding due to losses in 2020 and 2021.
    • Amortize over as many as 30 years the plan’s 2020 and 2021 actuarial losses. An actuarial loss is incurred when a plan’s experience does not meet the plan’s actuarial assumptions. Actuarial losses are normally required to be amortized over 15 years.

Plans that make this election will be restricted from adopting benefit increases for the two plan years following the year of the election. This relief, however, is not available to funds receiving financial assistance.

PBGC Premiums

Finally, ARPA increases the flat-rate multiemployer plan PBGC premium. Beginning in 2031, the premium will increase to $52 per person per plan year. The premium will continue to be indexed to inflation. Note that plans that receive financial assistance must still pay premiums.

As noted above, the PBGC will be issuing guidance on ARPA’s financial assistance program by early July, and we will provide an updated summary once that guidance is issued. In the meantime, if you have any questions on this new law and its impact on multiemployer pension plans or contributing employers to such plans, please do not hesitate to contact us.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Chicago
Lindsay Goodman
Dan Salemi

Los Angeles
Michelle McCarthy

New York
Craig Bitman

Philadelphia
Sariyah Buchanan
Amy Pocino Kelly
Bill Marx
Lauren Sullivan

Pittsburgh
Randy McGeorge

Washington, DC
Daniel Bordoni
Althea Day
Don Havermann
Benjamin Kelly
James Kimble
Timothy Lynch
Linda Way-Smith
Tom Wotring
Jonathan Zimmerman