Pursuant to informal conversations with both the Employee Benefits Security Administration (EBSA) and IRS officials, H. Joint Res. 7 by itself has no impact on the end of the Outbreak Period, even though the National Emergency under the National Emergencies Act officially ended when President Biden signed the joint resolution on April 10, 2023. Consequently, the emergency period for purposes of the Outbreak Period will still end May 11, 2023, which means the Outbreak Period will still end July 10, 2023, as previously announced by the Departments of Labor and Treasury in FAQs Part 58.
How can that be?
The May 4, 2020 Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak from the agencies and EBSA Disaster Relief Notice 2021-01 both indicated that the Outbreak Period would end 60 days after the end of the National Emergency or “such other date announced by the agencies in a future notification.” The agencies indicated in FAQs Part 58 on March 29, 2023 that the National Emergency (and the Public Health Emergency) would end May 11, 2023; therefore, the Outbreak Period would end July 10, 2023. Although President Biden signed H. Joint Res. 7, ending the national emergency declaration under the National Emergencies Act on April 10, the agencies have informally indicated that the date announced in FAQs Part 58—May 11, 2023—represents the end of the National Emergency for purposes of the Outbreak Period.
We also point out that H. Joint Res. 7 only ended the National Emergency declaration under the National Emergencies Act and not any declaration made pursuant to the Stafford Act (or the Public Health Emergency declaration by the Department of Health and Human Services (HHS)). The Outbreak Period is a function of ERISA §518 and IRC §7508A, each of which grants authority to the agencies following certain declarations made pursuant to the Stafford Act and/or Public Health Emergency declaration by HHS—not the National Emergencies Act. Based on our own analysis, it appears that H. Joint Res. 7 has no impact on relief granted under Stafford Act declarations, such as the Outbreak Period. Similarly, H. Joint Res. 7 has no impact on relief granted under the HHS Public Health Emergency, which will end on May 11.
We’ll have a more in-depth analysis later this week.