Devine Millimet | NH Law Firm

Dol Issues New Cobra Notices, but Extended Cobra Deadlines May Muddy The Waters

Patricia M. McGrath, Esq.

May 13, 2020

As promised in our May 8 e-alert, available at, this new e-alert will take a look at the revised sample COBRA Notices that the DOL recently issued, available at updated sample COBRA Notices, for use by covered employees.  In addition, you can find the DOL’s News Release and updated FAQs regarding the new Notices at the same link.

In brief:

  • Employers will want to download and start to use these new notices now.
  • NOTE, though, that these new formats do NOT contain the extended COBRA deadlines for affected employees to choose and/or pay for group health coverage. Those new deadlines start their extended timetable retroactively, as of March 1, 2020.
  • Best practice is to use the new formats as your templates; this is not the time to be creative.
  • Employers should identify employees whose continuing group health coverage is subject to COBRA requirements and deadlines, from March 1st onward, and consider whether affected employees need to receive updated COBRA information.

New COBRA Notices

The DOL’s May 1st News Release stated that the new Notices will “help Medicare-eligible Americans make key decisions regarding their healthcare coverage . . . . As many individuals face economic hardship related to coronavirus, the Department will continue to inform workers and help them avoid incurring unnecessary health costs.”

What is different?  According to the DOL’s News Release, the new model notices explain that there may be “advantages to enrolling in Medicare before, or instead of, electing COBRA. It also highlights that if an individual is eligible for both COBRA and Medicare, electing COBRA coverage may impact enrollment into Medicare as well as certain out-of-pocket costs.”  In the model election notice, there is an additional question and answer that explains the interaction between COBRA and Medicare, with its separate eligibility criteria, triggers for election, and the effect of being enrolled under both COBRA and Medicare.

Significantly, the new Model Notices do not contain the very new extension deadlines for COBRA actions.  Nonetheless, it would be best to include those updated dates in COBRA Notices going forward.

New COBRA Timelines Due to COVID-19

As we noted in detail in our May 8 alert (at, deadlines related to the COBRA process have been extended, on account of new rules issued due to the COVID-19 National Emergency.  As always, COBRA notices from employer plans must contain accurate details about the reason for COBRA eligibility, the cost of continued coverage and the deadlines by which an affected individual must choose coverage or not, pay retroactively for initial premiums, and then stay current with ongoing monthly premiums through the COBRA coverage period.

Unfortunately, there are no examples in the new rules that address the apparent need to circle back with individuals who were eligible for COBRA but, based on the COBRA rules at that time, missed the window for an election, a retroactive premium payment, or a monthly premium payment.  Now, however, under the retroactive new rules, it appears that same person should be offered a second chance to reconsider their options, or to catch up on a previously past-due premium payment.  Admittedly, the benefits arena is changing rapidly due to COVID-19, but one must hope that this void in the guidance should not cause employers and plans to become retroactively noncompliant.

Employer Best Practices

It is important to start using these new forms as soon as possible.  In addition, employers must prepare to issue COBRA notices with the proper deadlines that are now revised, due to the new rules from the IRS and federal DOL.  Already, there is commentary in the benefits community regarding COBRA cases brought by individuals related to plan sponsors who did not include all of the required details in their COBRA notices.  Penalties may be assessed against plan sponsors/employers for failure to follow COBRA notice rules.  For example ERISA, the law that regulates COBRA, allows a court the discretion to award penalties for a sponsor/employer’s failure to provide the required initial COBRA notice or the COBRA election notice.  ERISA also gives a court discretion to award legal fees to the employee-plaintiff’s attorney.

Ideally, compliance with distribution of revised COBRA notices should be no different from the good process employers have been following all along.  As an alternative, many employers work with a COBRA management provider to meet the employer’s COBRA duties.  Nonetheless, responsibility for COBRA compliance still rests with the plan sponsor/employer in the end.

We are in a sort of limbo, where new DOL notices do not contain updated extensions of time, but retroactive rules impose those extensions.  The prudent employer should document those employees who have been subject to any feature of COBRA any time from March 1st onward.  The employer must be ready to determine whether any of these employees or former employees require a revised COBRA notice, or require additional time to make an election or premium payment.

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