Different Views About Retirement Plans Shaped COVID-19 Responses Globally

The U.S. can learn from other countries about instilling the mindset of preserving retirement savings and creating different pools of assets to be dipped into in case of emergency.

The United States has opened up retirement plans for participant withdrawals during the COVID-19 crisis more so than any other country, according to a report from the Defined Contribution Institutional Investment Association (DCIIA).

In fact, only three other countries in DCIIA’s report allowed for withdrawals. However, these were either set monthly or annual payments. No other country in the report, “Initial Impacts of Coronavirus on Global Defined Contribution Plans,” initiated anything like the Coronavirus Aid, Relief and Economic Security (CARES) Act implemented in the U.S.

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While hardship withdrawals are allowed by many defined contribution (DC) plans, the CARES Act created a new type of distribution, called a coronavirus-related distribution (CRD), which can be taken in amounts up to $100,000, and expanded retirement plan loan limits.

The fact that the U.S. offered more help in the form of retirement plan distributions struck Neil Lloyd, partner and head of US Defined Contribution & Financial Wellness Research at Mercer in Vancouver, Canada, as interesting. Lloyd says he believes different thinking about retirement plans is the reason for the difference in the U.S., more so than any problem with logistics due to plan design. But he also notes that what makes the U.S. different is that this has happened before to some extent. “It’s not like these tactics are brand new. It happens with hurricane or wildfire relief. Other countries haven’t done this to the same degree,” he says.

For example, Lloyd says he found it “quite unusual” that Australia gave access to some retirement funds. According to DCIIA’s report, “Australians rendered unemployed/underemployed may withdraw A$10,000 (USD$5,800) from their superannuation savings plans in 2020 and again in 2021.” Lloyd explains that the superannuation fund in Australia has not typically given people access to money, and it has a big market impact on the fund because it has more illiquid assets in its portfolio.

Lloyd says that, in his experience, a key part of the UK’s mindset about retirement plans is the sanctity of preserving their assets. “That’s been the system’s mindset for almost 30 years,” he says. He adds that the Canadian retirement industry is still mostly based on targeted benefit programs and is less DC plan-focused, so “it has more of a rational retirement-first focus.”

Lew Minsky, president and CEO of DCIIA in West Palm Beach, Florida, says the reason for disparities among the countries in the report can be attributed to both logistics and a different thinking about retirement plans. “Generally, there are design structures in place in most of these countries’ retirement plans that make it harder for withdrawals and loans to be taken, but this is because they are philosophically more focused on preserving retirement plan assets for retirement and not supplemental savings,” he explains.

Minsky says the DC plan system in the U.S. is getting there, but is still in the process of making that transition. “Our system is in the early phase of allowing portability of retirement plan balances,” he says. “Other countries’ systems use a more centralized design or, as in the UK, the pot follows the member. They are further along in preventing potential leakage of retirement assets.”

Lesson to Learn

Still, Lloyd says he thinks the CARES Act was a positive thing. “There was a shortage in people’s financial need that needed to be addressed. Retirement is something we still need to deal with, but it’s not today’s problem,” he says. Lloyd finds that, in general, when he talks with U.S. employers, they are more aware than employers in other countries of the concept of financial wellness and how much employees have competing financial priorities. He cited a prior research report from Mercer that suggested employers should always be aware that, for many people, retirement is not their first priority. “There needs to be a balancing act,” Lloyd says. “If a retirement plan doesn’t allow people to access their money, people may not put money into it.”

The DCIIA report lists Denmark as one of the countries that has not allowed retirement plan withdrawals or loans, but it points out other measures the government took to help employees maintain salaries. That is what Minsky says the CARES Act did. “It didn’t just open up DC plans; it extended unemployment to more people, increased unemployment insurance payments and offered forgivable loans for business owners,” he says. “One of the bits of evidence that that has generally worked is there hasn’t been much take up in people accessing retirement plan distributions and loans.”

Lloyd says the positive message is that DC plans can help people with more than just retirement. “I think now we will look at what have we learned. If there’s [a natural disaster or health crisis] every single year, people are never going to save for retirement,” he says. “There’s a need for people to put money aside to address crises. I feel a discussion about that now will be insensitive, but we will need to start these conversations after this is over.”

Minsky also notes that other countries have done a good job of creating other pools of assets to be tapped into in cases of emergency. He notes that, in the UK, there is active development of emergency savings vehicles adjacent to and not inside of the National Employment Savings Trust (NEST) program. “That is an initiative the U.S. can follow and learn from,” he says. Minsky notes that similar efforts are happening in Canada.

That’s one issue Lloyd says he hopes the retirement industry learns—the importance of having emergency savings accounts. “It can be a totally separate savings opportunity, but it could be some of an employee’s contribution goes to emergency savings until a time when it reverts to the DC plan,” he says. Lloyd notes that some state plans put employees’ money in cash accounts in the first year, which almost creates an emergency savings account because if people have to take a distribution, they won’t have asset losses.

Lloyd concedes that the opening of DC plans for employees’ financial needs during COVID-19 could have been done with better controls, but he notes there was a time crunch. The economic effects of the pandemic happened in a short period of time and Congress had to react quickly. Again, Lloyd says, he hopes a lesson is learned so that, maybe next time, Congress will be prepared with a more refined response.

There should be a balance between providing funds when necessary and having in place guardrails to preserve retirement savings, Minsky says. “The [CRD] repayment provision [of the CARES Act] was smart, but it’s worth looking at short-term savings opportunities going forward so we eliminate the need to tap into retirement savings,” he says.

COVID-19 Compliance Corner: Impact on Defined Benefit Plans

Each week, Carol Buckmann, with Cohen & Buckmann P.C., will explain legislative provisions or official guidance related to the COVID-19 pandemic that affect retirement and health plan sponsors.

The Pension Benefit Guaranty Corporation (PBGC) has just issued several FAQs answering some important questions about the impact of the Coronavirus Aid, Relief and Economic Security (CARES) Act on single employer defined benefit (DB) plans.

The FAQs discuss how the CARES Act extension of the payment deadline for required minimum contributions due in 2020 affects reportable events and premiums. While multiemployer DB plans were in financial difficulty before COVID-19, and the pandemic is expected to exacerbate their problems, funding relief for multiemployer plans did not make it into the final version of the CARES Act. Contributing employers to multiemployer plans may be confronted with increased contribution obligations and significant withdrawal liability assessments if further relief is not enacted.

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Single Employer Plans

The CARES Act extended the deadline for required minimum contributions, including quarterly contributions, due during 2020 to January 1, 2021. This extension was limited to single employer plans. Plans using this extension are allowed to use the prior year’s funded percentage to determine if distributions of lump sums and annuity contracts must be restricted—these restrictions apply to plans that are less than 80% funded. However, the CARES Act does not address how the extension affects actions required to be taken under Title IV of the Employee Retirement Income Security Act (ERISA).

Failure to make required minimum contributions is a reportable event requiring notice to the PBGC. The PBGC clarified in its FAQs that if a plan sponsor takes advantage of the extended funding deadline, no reporting is required if the contributions are made by January 1. If the contributions due in 2020 are not made by January 1, unless a waiver applies, a reportable event filing for a missed contribution must be made by January 11 if the missed contribution exceeds $1 million or by February 1 if the missed contribution does not exceed $1 million. 

Contributions also affect the calculation of the variable rate premium paid by underfunded plans, as they are included in plan assets. For purposes of computing the variable rate premium, plans will have only an additional month to make contributions that can count in their variable rate premium calculations. The PBGC gives an example of a calendar year plan with a normal funding deadline of September 15. In this case, contributions made up to October 15 may be counted in the variable rate premium calculation.

The PBGC also indicated that it continues to handle requests for distress terminations, to evaluate the appropriateness of initiating involuntary terminations and to monitor corporate transactions under its early warning program.

Multiemployer Pension Plans

COVID-19 is expected to push more plans into endangered (yellow) and critical (red) funding status and to accelerate withdrawals. These changes will be the result of investment losses, a shrinking contribution base and the downsizing and insolvency of contributing employers. Employers face increasing contributions under funding improvement and rehabilitation plans. For these reasons, contributing employers should be monitoring their plans, as well as the status of introduced legislation to help multiemployer plans.  

What Happens if Contributions Are Skipped or Late?

The CARES Act provision allowing employers to delay contributions due in 2020 until January 1, 2021, does not apply to multiemployer plans. Employers that fail to make contributions to multiemployer plans may be in for an unpleasant surprise. ERISA has special provisions authorizing multiemployer plans to sue to collect delinquent contributions. In addition to the late contributions, the plans can claim interest, liquidated damages and reasonable attorney’s fees. 

What if the Contributing Employer Withdraws?

A multiemployer pension plan will assess a proportionate share of its unfunded vested liabilities on a withdrawing employer. Under the general rules, there is a complete withdrawal if there is a complete cessation of the obligation to contribute, whether voluntary or as a result of closing of a business. There is a partial withdrawal when an employer has a 70% reduction in its contributions measured over a three-year period or stops contributing under fewer than all collective bargaining agreements or with respect to fewer than all of its multiple locations or entities and continues the same type of work. COVID-19-related layoffs may trigger partial withdrawals for some employers. An asset sale may also trigger a withdrawal if the buyer does not assume the seller’s contribution obligations.

Plans are aggressive in pursuing claims for unpaid withdrawal liability. All members of the contributing employer’s controlled group or commonly controlled trades or businesses are jointly and severally liable for withdrawal liability. This means that all the liability may be assessed against any other member of the group if the contributing employer cannot pay.

A contributing employer’s withdrawal liability is based on the prior year (2019 for a calendar year plan) and is likely to increase if assets lose value in a recession and as remaining employers assume additional liabilities for withdrawn and defaulting employers. All contributing employers are entitled to one withdrawal liability estimate a year, although the plan has 180 days to provide it. Contributing employers should be regularly requesting these, and, if they are considering a withdrawal, they may wish to accelerate the timing to 2020.

What if There Is a Mass Withdrawal?

A mass withdrawal occurs when all contributions to a multiemployer pension plan cease, which could be the result of a trustee decision, or if substantially all employers withdraw pursuant to a plan or arrangement. There is a presumed mass withdrawal if substantially all employers withdraw within a three-year period. Employers that withdrew from a plan within the preceding three years and already had withdrawal liability assessed can face an additional assessment after a mass withdrawal due to defaulted employers and without regard to a 20-year cap that usually applies to withdrawal liability payments.

Additional Relief May Be Coming

The CARES Act funding extension may not solve the problems of sponsors of single employer plans that are still unable to make their contributions on January 1, and the IRS has not clarified how the funding extension affects waiver applications, which must usually be made by the 15th day of the third month following the end of the plan year.

A future stimulus bill might contain the House’s version of financial support or other relief for multiemployer plans. Plan sponsors should also be aware of the PBGC’s Disaster Relief Policy, which can be accessed on the PBGC’s website. This policy extends certain reporting and premium deadlines automatically if the IRS should further extend Form 5500 filing deadlines. However, the policy will not automatically extend the deadline for reportable events that indicate the sponsor’s financial difficulty, such as insolvency, liquidation, missed contributions and failure to pay benefits when due.

 

Carol Buckmann is a co-founding partner of Cohen & Buckmann P.C. As a highly regarded employee benefits and ERISA [Employee Retirement Income Security Act] attorney, Buckmann deals with the foremost issues in ERISA, including pension plan compliance, fiduciary responsibilities and investment fund formation.

She has 40 years of practice in this area of the law and a depth of experience on complex pension law and fiduciary problems. She regularly shares her thoughts on new developments in the benefits industry on Insights, Cohen & Buckmann’s blog, and writes and speaks on ERISA topics. Buckmann has been recognized by Martindale-Hubbell as an AV Pre-eminent Rated Lawyer, was selected for inclusion in the Best Lawyers in America and was named one of the Super Lawyers in Employee Benefits.

This feature is to provide general information only, does not constitute legal or tax advice, and cannot be used or substituted for legal or tax advice. Any opinions of the author do not necessarily reflect the stance of Institutional Shareholder Services or its affiliates.

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