Employer health and benefit plans that are subject to the requirements of Employee Retirement Income Security Act of 1974 (ERISA) have to meet the law’s minimum standards of protection for the individuals in the plans. The standards can be onerous, but thanks to a payroll safe harbor from the Department of Labor, certain disability benefit plans may be exempt. The following question and answer provides one example:
Question: I am in charge of reviewing our company’s employee benefit programs and confirming that they are treated appropriately for ERISA compliance purposes. Our disability program provides income-replacement benefits to employees who are unable to work because of illness or injury. Payments commence once an employee is out of work for more than two weeks.
Benefits are paid from the company’s general assets, not from a trust or separate account. Does this fact make our program not an ERISA plan? Or do additional conditions apply?
Answer: You are correct that a DOL regulation exempts certain “payroll practices,” including disability payments, from ERISA-plan status. You are also right that the main condition of this regulatory “safe harbor” is that the payments come from the employer’s general assets.
It sounds like your program meets this requirement — but several other elements also must be considered to confirm that your program falls within the safe harbor. If a disability program has any of the following features, the payroll practice safe harbor is not available, and the program is subject to ERISA:
- Funding the program through a trust or separate account (as already noted). It is, however, generally permissible to earmark funds for the program within the employer’s general assets so long as the funds remain available for other purposes, such as to pay the employer’s creditors.
- Purchasing insurance to pay the benefits. Payment of benefits through insurance is not payment from the employer’s general assets.
- Paying more than normal compensation. To fall within the safe harbor, the program may pay eligible employees only their normal compensation, or less (for example, 60% of normal compensation).
- Paying benefits to former employees. The safe harbor covers only payments to employees while absent from work, not disability benefits paid to former employees — the safe harbor never applies to continuation of compensation after an individual terminates employment. (As a consequence, most long-term disability programs, even if paid from an employer’s general assets, are not protected by the safe harbor.) You will need to consider the duration of benefits available under the program and ensure that it does not extend beyond when the company considers termination of employment to occur. (For example, if an employee that does not return to work is treated as having terminated prior to the exhaustion of short-term disability benefits, the program does not fall within the safe harbor.)
As a final caution, if your company wishes to treat this program as not subject to ERISA, make sure that any program documents, descriptions, and employee communications are consistent with this intent. Even though an employer generally cannot make a non-ERISA arrangement subject to ERISA by simply calling it an ERISA plan, the employer’s treatment is a factor. At least one court has found that treating a potentially exempt payroll practice as an ERISA plan was a “strong reason to find ERISA coverage.” If the company uses a single (“umbrella” or “wrap”) document to bundle multiple benefit programs, the document should specify which programs are, and are not, intended to be subject to ERISA.