This weekend I watched The Call, a South Korean horror film (yes, subtitles) about a woman who receives a call from 20 years earlier. The past and present keep changing as the two callers interact over time. Oddly there were two movies released in 2020 named The Call. It’s this one.

The past can affect the present, but not usually the way it did in the movie.

The American Rescue Plan Act of 2021 (ARPA) imposes new COBRA-related obligations on employers, including notice requirements to former employees. In this blog, we usually ask Who Is My Employee?, but this week’s post is about Who Was My Employee?

ARPA changes the COBRA rules for April 1 through September 30, 2021. Employees who are involuntary terminated or become COBRA-eligible due to a reduction in hours are entitled to a 100% subsidy on their COBRA premiums for six months, April 1 to September 30. The company must pay the premiums, which are then reimbursed by the government through payroll tax credits.

ARPA extends this subsidy opportunity to former employees too, even those who did not sign up for COBRA when they were terminated. Under ARPA, those individuals get a second chance to sign up if they became COBRA-eligible less than 18 months ago.

Employers must send new COBRA notices to individuals who were involuntarily terminated (or who became COBRA-eligible due to a reduction in hours) within the last 18 months, including those who did not choose coverage at the time. These individuals can take advantage of the subsidized premiums from April through September, unless their 18-month COBRA eligibility period ends earlier or they become ineligible for another reason. Eligibility ends if the individual becomes eligible for other healthcare coverage or Medicare.

The DOL will be publishing model notices by April 10.

Employers must send this notice by May 31.

There’s more that employers need to know about changes to COBRA. The changes mean that your template severance agreements probably need to be revised too. There are new COBRA notice requirements for departing employees and new notices that must be sent when the subsidies are about to end.

I drafted a post addressing these subjects for BakerHostetler’s Employment Law Spotlight blog, which you can read here.

Reaching back 18 months to send notices to departed employees is an unusual requirement, but employers will have to make reasonable efforts to track these people down. Fortunately, unlike in The Call, employers don’t need to worry about anything that happened 20 years ago. The 18-month lookback is plenty to worry about.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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