How the COVID-19 Pandemic May Impact Your Dependent Care Benefits

May 8, 2020 | COVID-19, Tax & Wage Laws

The COVID-19 outbreak may impact your DCAP benefits in a variety of ways. Although the IRS has not issued any specific relief or guidance for DCAP benefits due to the COVID-19 outbreak, existing rules may help if your childcare needs have been affected by the outbreak.

An employer-sponsored dependent care assistance program (DCAP) allows you to pay for qualifying nanny expenses, such as your caregiver’s pay, on a tax-free basis, up to certain limits. With many nannies prevented from working due to stay-at-home orders because of the COVID-19 outbreak, you may want to change the amount of your DCAP contribution. Also, you may be concerned about not being able to use all of your DCAP funds this year due to changing childcare needs and availability.

As a reminder, DCAPs can only reimburse dependent care expenses that are incurred to allow you and your spouse to work or look for work. Also, you need to pay your nanny legally to take advantage of the tax savings from a DCAP.

Most DCAPs are structured so that employees make contributions on a pre-tax basis through an Internal Revenue Code Section 125 cafeteria plan. Because of these tax advantages, DCAPs are subject to a number of legal restrictions.

The COVID-19 outbreak may impact your DCAP benefits in a variety of ways. Although the IRS has not issued any specific relief or guidance for DCAP benefits due to the COVID-19 outbreak, existing rules may help if your childcare needs have been affected by the outbreak.

For example, under existing rules, your DCAP may be designed to:

Allow you to change your pre-tax elections when there is a change in employment status or if there is a change in cost or coverage of dependent care services.
Include a grace period to allow you to use any unused funds that remain at the end of the plan year for an additional 2½ months. For example, if you have a DCAP that operates on a calendar year basis, you can use your 2020 funds for eligible dependent care expenses incurred through March 15, 2021.
Allow you to spend down your accounts rather than immediately forfeiting the unused amounts if you are terminated.

Mid-year election changes

DCAPs that include pre-tax contributions must comply with the Code Section 125 restrictions on mid-year election changes. Under Section 125, your elections must be made before the first day of the plan year and must remain in effect until the beginning of the next plan year. This means that you typically cannot make changes to your DCAP elections during a plan year.

Your employer does not have to permit any exceptions to the election irrevocability rule. However, IRS regulations permit your employer to design their DCAPs to allow you to change your elections during the plan year if certain conditions are met. DCAPs may be designed to allow you to change your elections when the following events occur, provided that your requested change is consistent with the event:

Change in status event

You may be allowed to change your election during a plan year if there is:

A change in your number of dependents
A change in employment status of you or your spouse (for example, from full-time to part-time, which may reduce the hours of childcare needed and the amount of dependent care expenses)
A change in the place of your residence, spouse or dependent
A dependent child ceasing to satisfy dependent eligibility requirements

Change in cost or coverage

Changes in cost and coverage for dependent care services may allow you to change your election during the plan year. This may occur when:

A childcare provider is no longer providing care (for example, a nanny cannot come to work because of a stay-at-home order)
You switch from a paying a provider to free care (for example, a relative or neighbor)
You no longer need childcare
You need additional childcare due to school closure

Family Medical Leave Act (FMLA) leave

If you take an FMLA leave, you are entitled to revoke an election of non-health benefits (such as DCAP benefits) to the same extent as employees taking a non-FMLA leave are permitted to revoke elections of non-health benefits.

Forfeiture rules

Any unused funds that remain in your DCAP account at the end of the plan year (or coverage period) must be forfeited. As an exception, the IRS allows employers to design their DCAP with an extended deadline, or grace period, of 2 ½ months after the end of a plan year to use DCAP funds.

For a plan year ending December 31, the employees would have until March 15 to spend the funds in their DCAP.

In addition, if your employment is terminated, you forfeit any unused balances remaining in your DCAP accounts at the time of the termination.

However, the IRS permits DCAPs to incorporate a spend-down provision if your participation terminates during a coverage period. At your employer’s option, a DCAP may allow terminated participants to use unused amounts in their accounts for dependent care expenses incurred during the remainder of the plan year (or grace period immediately after that plan year, if applicable).

Talk to your employer

If you are impacted by the COVID-19 pandemic, check with your employer’s human resources department about your DCAP’s rules for mid-year election changes, grace periods, and spend-down provisions for terminated employees.