Whose Law? Where? When? — Risk Management For ERISA Plans In Uncertain Times

Seyfarth Synopsis: The central tenets of ERISA are to provide as much freedom as possible, within minimal parameters, to draft ERISA plans, and then to honor the terms of the plans. COVID-19 may very well cause increased ERISA plan claim filings, so now is the time for plan sponsors to review their ERISA plans and consider (or reconsider) plan provisions that manage an increased claim risk.

The COVID-19 pandemic seems likely to spawn many claims for ERISA benefits, whether under health, retirement or disability plans, and now is the time to consider anew proactive risk management steps. A recent decision from the Court of Appeals for the Tenth Circuit, Ellis v. Liberty Life, No. 19-1074 (10th Cir. May 13, 2020), illustrates the particular importance of the risk management tool of including a favorable choice of law provision in an ERISA long-term disability plan that provides benefits through an insurance policy.