White House Announces Continuation of COVID-19 National Emergency and May 11 End Date | Practical Law

White House Announces Continuation of COVID-19 National Emergency and May 11 End Date | Practical Law

On February 14, 2023, the White House formally announced that it will temporarily continue the COVID-19 national emergency (NE)—before ending it on May 11, 2023. The Biden administration has indicated that it will take a similar approach regarding the COVID-19-related public health emergency (PHE). The end of the NE and PHE will have significant compliance implications for employee benefit plans and arrangements regarding COVID-19-related requirements and relief that were established during the pandemic.

White House Announces Continuation of COVID-19 National Emergency and May 11 End Date

by Practical Law Employee Benefits & Executive Compensation
On February 14, 2023, the White House formally announced that it will temporarily continue the COVID-19 national emergency (NE)—before ending it on May 11, 2023. The Biden administration has indicated that it will take a similar approach regarding the COVID-19-related public health emergency (PHE). The end of the NE and PHE will have significant compliance implications for employee benefit plans and arrangements regarding COVID-19-related requirements and relief that were established during the pandemic.
The White House has formally announced a continuation of the ongoing national emergency (NE) associated with COVID-19, the disease that results from SARS-CoV-2 and its variants (88 Fed. Reg. 9385 (Feb. 14, 2023)). The COVID-19 NE was announced by the Trump administration at the start of the pandemic on March 13, 2020 (effective beginning March 1, 2020), and has been continuously extended since then (85 Fed. Reg. 15337 (Mar. 18, 2020)). Despite declaring that the NE will continue beyond March 1, 2023 (when it would otherwise expire), the White House's notice:
  • Acknowledged that the country is in a different phase of the pandemic than it was in March 2020.
  • Declared its intent to end the NE on May 11, 2023, as part of an orderly transition.
The White House's February 14 notice is an official declaration of a wind-down plan that the administration announced in late January (Statement of Policy (Jan. 30, 2023)). In its statement of policy, the Biden administration also stated its plan to end the corresponding COVID-19 public health emergency (PHE) on May 11, 2023 (after a brief extension). The Department of Health and Human Services (HHS) declared the PHE on January 31, 2020, and it has been continuously extended since then, though on a different schedule than the NE (Section 319 of the Public Health Service Act (PHSA) (42 U.S.C. § 247d)). Without extension, the COVID-19 PHE will expire on April 11, 2023.
In its statement of policy, the administration noted that an abrupt termination of the NE and PHE would be disruptive to the nation's health care system. In the employee benefits context, for example, the NE and PHE are each associated with several specific requirements and relief provisions (see Practice Note, COVID-19 Compliance for Health and Welfare Plans: COVID-19 Public Health Emergency and National Emergency Declarations).

NE-Related Relief for Benefit Plans

Regarding employee benefit plans, the NE is associated with deadline relief guidance issued by the Departments of Labor (DOL), HHS, and Treasury (collectively, Departments) that provided delayed timeframes for:
In issuing this guidance in 2020, the Departments recognized that participants and beneficiaries may have experienced difficulty completing certain plan-related activities, such as:
Under final regulations issued in May 2020, all group health plans that are subject to the Employee Retirement Income Security Act (ERISA) or the Internal Revenue Code (Code) must disregard the period from March 1, 2020, until 60 days after the announced end of the COVID-19 NE for all participants or beneficiaries, wherever located, in calculating certain benefit-related timeframes listed in the final regulations (85 Fed. Reg. 26351 (May 4, 2020)). This set-aside time is known as an "outbreak period."
Under another NE provision, COVID-19-related relief involving donations to leave-based donation programs ended in 2021 (see Standard Document, Leave Sharing and Vacation Donation Policy for Medical Emergencies: Payment Deadline Under COVID-19 Guidance (Extended through 2021)).

Benefits Actions to Which Outbreak Period Guidance Applies

The outbreak period guidance applies to the following actions:

Duration of Outbreak Periods

The above outbreak periods are subject to statutory duration limits in ERISA and the Code, under which a set-aside period of up to one year is permitted (29 U.S.C. § 1148; 26 U.S.C. § 7508A). One year from March 1, 2020, was February 28, 2021. In follow-on guidance issued in February 2021, the Departments stated that individuals and plans with timeframes subject to the Departments' prior COVID-19 deadline extensions would have applicable periods disregarded until the earlier of:
  • One year from the date they were first eligible for relief.
  • 60 days after the announced end of the COVID-19 NE (now expected to be May 11, 2023).
Under Notice 2021-01, for example, a claimant who was required to request external review by March 1, 2021, would need to make the request by the earlier of one year from that date (that is, March 1, 2022) or the end of the outbreak period. As a result, each individual has a unique outbreak period keyed to when the individual first becomes eligible for the one-year set-aside period.

PHE-Related Provisions for Benefit Plans

Numerous benefits-related legislative requirements and administrative guidance provisions are associated with the COVID-19 PHE. These provisions include:

Practical Impact

In preparation for the COVID-19 NE and PHE end dates, plan sponsors and their advisors will face plan design decisions regarding the various COVID-19 requirements and relief. For example, plans will need to consider whether they wish to continue paying for COVID-19 tests without cost-sharing. Under a middle-of-the road approach, a plan could be less generous after the PHE regarding how it reimburses OTC COVID-19 tests.
Regarding many of the benefits-related requirements and relief described above, as a result, the end of the NE and PHE could lead plan sponsors and administrators to change certain benefit provisions associated with the emergencies. If so, the plan may need to timely issue summaries of material modifications (SMMs) or updated summary plan descriptions (SPDs) to reflect these changes. For more information, see: