Lessons Learned: Benefit Plan Schedules

Note. I spent 12 years in a large firm as an employee benefits lawyer and another 12 as an Assistant General Counsel for Pay & Benefits at a Fortune 50 company. I’m now back at my law firm. That makes me pretty lucky. This is a first in a series of posts with random thoughts around what I’ve learned about employee benefits lawyering on the inside and out.

A while back I was working on one of those classic artifacts of employee benefits lawyering—a schedule to a document. In this case it was a schedule of benefit programs covered by a welfare plan umbrella plan document.

The usual approach is to list all the programs by name, contract number, SPD, etc. and then include procedures for updating the schedule. But guess what too often happens to schedules like this? They are out of date in no time—maybe even before the document is adopted.

In many cases that doesn’t matter. But it some it can be very damaging as in, for example, a litigated claim where we want to rely on provisions in the umbrella document.

There are various fixes. One might be to skip the schedule altogether. Simply say the document covers all ERISA welfare plans sponsored by the employer (or controlled group or something like that) at any time the umbrella plan is in effect. You might also include provisions allowing the employer to specifically exclude or include certain plans and that such action doesn’t change the general rule.

There are various ways to address this issue and the unique facts. That’s where good and practical lawyering comes into play. The main point here is to be very, very careful when adding schedules to plan documents. They too often give false comfort.