Under the American Rescue Plan Act (ARPA), certain individuals are eligible to receive fully subsidized COBRA coverage for a six-month period which began on April 1, 2021. The APRA also requires that employers notify affected individuals of this benefit by May 31, 2021. Thankfully, last week, the Department of Labor issued template notices and a FAQ on these topics.

To provide a recap, the ARPA defines those (and their covered family members) who can receive the COBRA premium subsidy as “assistance eligible individuals.” An assistance eligible individual is someone who: is otherwise eligible for COBRA coverage as a qualified beneficiary because their employer plan coverage ended as a result an involuntary termination of employment or reduction in hours; and their COBRA period includes months between April 1 and September 30, 2021. An employee who voluntarily terminates their employment is not eligible. Assistance eligible individuals receiving the subsidy are required to provide notice if they become eligible for other employer coverage or Medicare, at which point they are no longer eligible for the subsidy.

Employers have two options to provide the subsidy – by either providing the CORBA coverage at no cost to the assistance eligible individuals or by covering the cost charged by the insurer. After the employer provides the subsidy, it may take a payroll tax credit equal to the cost of coverage.

The ARPA also puts the burden of providing notice to affected individuals upon employers. First, as noted above, employers must notify assistance eligible individuals of their right to receive the COBRA subsidy by May 31, 2021. Employers must provide this notice to individuals currently receiving COBRA coverage and those who previously waived or dropped coverage but are still within their eligible coverage period. If an assistance eligible individual previously waived or dropped COBRA coverage, they have 60 days from their receipt of the notice to make an election to start or reinstate coverage.  In addition, employers must update their standard COBRA notice for qualifying events that occur after April 1, 2021. Finally, employers will have to notify assistance eligible individuals prior to the expiration of their subsidies. This additional notice must be provided between 15 and 45 days prior to the end of the subsidies for the individual(s).

Due the extent and nature of the ARPA’s COBRA premium subsidy obligations, employers should review the Department of Labor’s template notices and FAQ.

Last week, the Equal Employment Opportunity Commission (EEOC) announced that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021. As a reminder, private employers with 100 or more employees, as well as federal contractors with 50 or more employees, are required to submit EEO-1 Component 1 data, which includes sex and race/ethnic information for the workforce.

The deadline to submit 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021, giving employers 12 weeks to file instead of the usual 10 weeks, due to the increased burden of submitting two years of data (2019 and 2020) and the continuing impact of the pandemic on workplaces.

EEOC has previously said it will no longer be collecting Component 2 (pay and work hours) data, so the EEO-1 Component 1 data is all that is required for the upcoming submission (for 2019 and 2020 years). It is unknown whether the EEOC under President Biden will try to revive Component 2 data for future years, but it will not be included in this data cycle.

Employers can visit https://EEOCdata.org for more information regarding updates on the data collection. According to the Commission, when the collection period opens, more resources to assist filers with their submissions will be available on this website.

Employment practices liability insurance policies, commonly referred to as EPLI, provide protection against large jury verdicts rendered in cases involving employment discrimination, harassment and other employment law violations. These policies also typically call for insurers to pay the costs of defense counsel in excess of the employer’s retention.

While these policies may indeed provide significant protection, they have also proved problematic in one respect to many employers, because many EPLI policies specify that defense counsel will be selected by the insurer and not the employer. Most often, such counsel are selected by the insurer from a short list of law firms previously chosen by the insurer to serve as “panel counsel” in the geographical area where the lawsuit has been brought. In most instances, insurers have negotiated lower hourly rates with their panel counsel in exchange for promises of “volume” work.  Typically, the employer has never had any prior dealing with the counsel designated by the insurer.

In other words, the employer will not be permitted to utilize its usual employment counsel who may have a long and trusted relationship with the employer. The employer’s regular counsel may well be familiar not only with the employer’s business, but also with the employer’s people, its practices and policies. Indeed, the employer’s regular counsel may have been extensively involved in assisting the employer in the development of the employment action, such as a termination or a reduction in force, that has given rise to the lawsuit. The employer’s regular counsel may also have handled other employment litigation for the employer prior to the purchase of EPLI.

Nevertheless, the insurer invariably will insist that the employer use its panel counsel despite such objections from the employer. Indeed, some insurers will refuse to permit employers to use their regular counsel as defense counsel in a covered case even if the employer offers to pay any difference in the cost of its regular counsel and the insurer’s panel counsel. Thus, in what may be a very significant lawsuit, the employer will be left with an attorney who, in all likelihood, lacks all the preexisting knowledge and trust enjoyed by the employer’s usual counsel.

These issues can be avoided if the employer chooses to exercise its leverage at the time it is negotiating to purchase an EPLI policy for the first time or is negotiating the potential renewal of its existing policy. During such negotiations, an employer can usually successfully insist that its insurance carrier agree that the employer will have the right to retain its regular employment counsel in the event a covered claim is filed against it.  If an employer’s existing insurer will not agree to this, another insurer often will do so in order to secure the employer’s business. Alternatively, an employer may choose to purchase a “duty to reimburse” policy which usually permits the employer to choose its counsel, rather than a “duty to defend” policy which generally does not.

At the beginning of the pandemic, many employers began to require employees to be screened for COVID-19 symptoms prior to starting work. Common screenings include daily temperature checks and symptom questionnaires, as well as questions about recent travel or recent exposure to COVID-19. Predictably, lawsuits have started to surface by employees alleging state and federal wage violations due to non-payment of wages for time spent undergoing mandatory employer screenings. For example, in federal court in California, a class action lawsuit was filed in March, 2021 against a sporting goods retailer. In the lawsuit, employees claim the employer failed to pay them for mandatory screenings, which the employees say they were required to complete off the clock. A similar class action lawsuit was also filed recently in another California federal court against a national retail chain. In that case, non-exempt employees claim they are not paid for pre-shift time associated with temperature checks and COVID-19 related questions.

Generally speaking, the legal standard is whether the employees’ pre-shift activities are necessary to the work performed and done for the benefit of the employer. It is likely that similar lawsuits will be filed in the future. Employers should have policies and procedures in place to allow employees to clock in for any required pre-shift activities which take enough time to be considered more than “de minimis” under legal standards. Employers should also have a process in place to allow an employee (or a manager) to manually add time to their shift when necessary.

In what would amount to the most significant overhaul to American Labor law since the passage of the National Labor Relations Act (NLRA) in 1935, the U.S. House of Representatives passed the Protecting the Right to Organize Act (PRO) on March 9.

While the PRO has several more legislative stops on the road to becoming law, if enacted, the PRO would result in sweeping changes to the NLRA, including, amongst others:

  • Expanding the definition of “employee” and limiting the concept of independent contractor
  • Easing the joint employer standard
  • Prohibiting class-action waivers in arbitration
  • Expanding damages under the NLRA to include civil penalties
  • Allowing company directors or officers to be personally liable for civil damages
  • Prohibiting captive audience meetings
  • Creating a private right to action if the NLRB does not seek a 10(j) injunction
  • Eroding right to work laws

It is well known that labor reform has been a long-term goal of the Democratic Party. While President Biden has voiced support for the PRO, and House Democrats clearly are in favor of the PRO as it currently stands, there is a significant question as to how the PRO will proceed through the Senate, and whether it will survive at all.

As the PRO continues through the legislative process, we will be sure to keep you apprised of its current state, and any impactful changes.

The light at the tunnel is near! Due to the increase in vaccinations in the United States, the CDC has issued updated guidance regarding “fully vaccinated” individuals. For purposes of the guidance, an individual is considered fully vaccinated two or more weeks after receiving the second shot of a two-dose vaccine (Pfizer-BioNTech or Moderna) or two or more weeks after receiving one shot of a one-dose vaccine (Johnson & Johnson).

The CDC guidance eases up some restrictions for fully vaccinated individuals. For example, the guidance specifically states that fully vaccinated individuals can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing
  • Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing
  • Refrain from quarantine and testing following a known exposure if asymptomatic

However, the guidance also advises that, for now, fully vaccinated individuals should continue to take precautions in public and other group settings with non-vaccinated individuals. For example, the guidance states that fully vaccinated individuals should continue to:

  • Wear masks and physical distance in public, when visiting with unvaccinated people who are at increased risk for severe COVID-19, or when visiting with unvaccinated people from multiple households
  • Avoid medium and large in-person gatherings
  • Get tested if experiencing COVID-19 symptoms
  • Follow guidance issued by individual employers
  • Follow CDC and health department travel requirements and recommendations

Although the CDC guidance removes some restrictions for fully vaccinated employees, the restrictions that remain in place make clear that employers should continue to enforce its workplace COVID-19 protocols for all employees, such as requiring masks, physical distancing, and prohibiting large gatherings in the workplace. This is also in line with OSHA’s January 29 guidance, which stresses the importance of wearing masks and maintaining physical distance even if employees have been vaccinated.

The CDC has stated that it will update its guidance based upon the spread of COVID-19, including new variants, the proportion of the population that is fully vaccinated, and the science on COVID-19 vaccines.

With recent weather happenings leaving much of Ohio covered in varying degrees of snow, ice, and that all-too-familiar gray slush that ensues as it all melts, re-freezes, and melts again, now seems like a good time to discuss the workers’ compensation implications when employees get hurt trying to traverse this sometimes perilous terrain.

In Ohio, the basic rule of workers’ compensation is that it covers injuries sustained both in the course of and arising out of an injured worker’s employment. The question of whether an injury occurs in the course of employment focuses on the time, place, and circumstances of the injury, with benefits limited to those employees engaging in some essential job duty or function when injured. Moreover, for an injury to be considered as having arisen out of the employment, there must be a causal connection between the employee’s injury and his employment. This is a fact specific question that looks at the totality of the circumstances, especially with respect to the following three factors:

  • The proximity of the scene of the accident to the place of employment
  • The degree of control the employer had over the scene of the accident
  • The benefit the employer received from the injured employee’s presence at the scene of the accident

For accidents that happen on the clock and in the building, such as a slip-and-fall on a wet floor due to melted ice and snow, the connection is relatively straightforward. Fault is generally not a part of the equation, so unlike premises liability cases, employees’ injuries are covered even when they occur as the result of “open and obvious” hazards—like a puddle of water with a “wet floor” sign next to it. Note: mops and wet floor signs are still recommended to help prevent injuries in the first place!

When an employee is injured in transit, the analysis is more complicated. For employees whose travel is an intrinsic part of their work duties—such as delivery drivers and traveling salespeople—injuries suffered during work-related trips are typically compensable. For employees who report to a fixed job site each day, on the other hand, Ohio courts have held that injuries sustained while traveling to or from work are generally not compensable. This is true even when the “fixed” workplace changes periodically, as long as the employee’s duties begin when they report to a specific job site designated by their employer. This is known as the “coming and going rule.” Consequently, any time that an employee sustains an injury while traveling, the first question is whether the employee is a fixed-site employee or a non-fixed-site employee. This can be a fuzzy distinction in some cases, often requiring a very fact-specific inquiry regarding the nature of the job and the nature of the travel.

That is not the only inquiry, though, as there are also exceptions to the coming and going rule even when it is clear that the employee is a fixed-site employee.

Under one such exception—the “special hazard” exception—fixed-site employees may be entitled to workers’ compensation benefits for injuries while traveling to or from work if they can establish that the employment created some unique risk that is distinct from what the general public experiences while traveling. Particularly long trips to a job site, rapidly changing job sites within a relatively small timeframe, or even just an extraordinarily dangerous intersection near the entrance to the job site are some examples of such special hazards.

Another exception to the coming and going rule may apply when a fixed-site employee is injured while within the “zone of employment,” even before or after their work shift. This exception is commonly raised in the context of parking lot injuries. Whether on foot or in the car, injuries occurring in the parking lot on or near the employer’s premises may be found to be compensable based on the degree of control the employer has over the parking lot. When an employer owns and maintains the lot where their employees park, injuries due to accidents there are typically found to be within the zone of employment and thus compensable.

Ultimately, despite the multitude of rules and exceptions and abundance of legal terminology on the subject, virtually all injuries while employees are traveling are subject to the same underlying analysis—a case-by-case examination of the “totality of the circumstances” focusing primarily on the degree of control the employer had over the scene of the accident and the benefit the employer derived from the employee being there. Due to the entirely fact-specific nature of this analysis, it is therefore especially important for employers to thoroughly investigate these types of injuries as soon as possible. Obtaining crash reports for motor vehicle accidents, conducting witness interviews, checking cell phone records to verify reported accident times, and even reviewing urgent care records for statements as to where the injury occurred and what the employee was doing when injured can all lead to the discovery of crucial evidence supporting a defense to a workers’ compensation claim based on the “totality of the circumstances.”

According to new guidance from the U.S. Department of Labor, workers who refused jobs that they viewed as unsafe for COVID-19 reasons may now be eligible to collect unemployment benefits. The DOL published this guidance on February 25 in keeping with President Biden’s promise to provide unemployment benefits to workers who chose unemployment over exposure to COVID-19.

The DOL’s action applies to persons who are eligible for Pandemic Unemployment Assistance under the 2020 CARES Act, which includes independent contractors and others who may not otherwise be eligible for state unemployment benefits. These persons are now eligible for unemployment benefits – even if they refused to perform their jobs or refused to accept an open job – if they refused because the work site was not in compliance with COVID-19 health and safety standards. The health and safety standards can include things such as mask wearing, physical distancing and provision of personal protective equipment.

Under the new DOL guidance, unemployed individuals can seek benefits retroactively as far back as February 8, 2020. In order to be eligible, the individuals will have to attest to the unsafe work conditions in writing, and they will have to make that attestation under the penalty of perjury.

President Biden made it clear that his DOL would be active, and more actions from the DOL are a virtual certainty in the weeks and months to come.

As the COVID-19 vaccine becomes available across the country, companies are facing critical decisions as they create policies and/or plan for the transition back to work. Below is a list of questions and best practices Frantz Ward attorneys frequently discuss with clients related to key issues facing returning to the office.

PEOPLE
Back to the Office Health Check

  • Q: Do I legally have a right to ask my employees to take their temperature and screen themselves for COVID symptoms daily?
    • A: Yes, an employer should ask its employees to take their temperature and screen themselves for symptoms prior to coming to work or entering the workplace
  • Q: Do I have the right to ask them whether they have been exposed to anyone who has had the coronavirus?
    • A: Yes. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions, specifically, about their family members. So, you can ask them if they have been exposed to anyone who has had the coronavirus, but you cannot ask them if their family members have, or had, the coronavirus
  • Q: If I found out they have been exposed, do I have the right to require employees to self-quarantine at home?
    • A: You should prohibit them from entering the workplace while they wait for the isolation period to expire. An employee can telework whilst self-isolating or, if telework is not possible, may take paid or unpaid leave depending on the employer’s policy
  • Q: Can I require that employees get the vaccine?
    • A: Yes. Employees may, however, have a disability or sincerely held religious belief that prevents them from receiving the COVID vaccine. In that case, the employer should engage in the interactive process to see if a reasonable accommodation is possible. Click here to listen to our podcast with more information on this topic

Sick Employees

  • Q: Do employees have to tell us if they have the virus?
    • A: Employers should require employees to tell them that they have the virus. And, employers have the right to ask if employees are experiencing symptoms, as well as the right to send employees home if they are displaying symptoms
  • Q: What if they start to exhibit symptoms, can I ask them to go home?
    • A: As mentioned above, yes. The CDC states that employees who become ill with symptoms of COVID should leave the workplace immediately

Visitors

  • Q: Can I require that visitors wear masks?
    • A: Yes, an employer may require visitors to wear masks and observe infection control practices. However, where a visitor with a disability needs a related reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII

POLICIES
PPE Protocol

  • Q: Do I have the right to require employees wear a mask while they are not at their desk
    • A: Yes, just as with visitors, an employer may require employees to wear masks and observe infection control practices subject to the ADA and Title VII
  • Q: I see some employees are not wearing their masks over their nose and mouth, can I require them do it that way?
    • A: Yes, subject to the ADA and Title VII
  • Q: Should I provide PPE and sanitizer at the workplace at no cost?
    • A: We would recommend providing PPE and hand sanitizer at the workplace free of charge. If, for whatever reason, PPE is being stolen, misused, or wasted – you may consider restricting access to PPE

Leave of Absence

  • Q: How do I ensure we’re complying with Families First Coronavirus Response Act?
    • A: The Families First Coronavirus Response Act is no longer in effect. However, we expect President Biden to attempt to implement similar leave

Notification

  • Q: Do we need to tell the rest of the staff if one of our employees has COVID?
    • A: You should notify those who may have come into close contact with the employee, without revealing the sick employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice, and does not violate the ADA’s prohibition of disclosure of confidential medical information
  • Q: Is this a violation of privacy laws?
    • A: No. However, it would violate the ADA to identify the employee by name as the ADA requires that an employer keep all medical information about employees confidential

Remote Working

  • Q: Can I require that employees work remotely?
    • A: Yes

PLACES
Cleaning and Disinfecting

  • Q: What are the requirements for cleaning and disinfecting employee work areas?
    • A: It is a good idea to frequently disinfect desks, workstations, and high-contact surfaces, and to disinfect common areas daily. In the event of a positive COVID test, you should close that area of the floor or office and perform a deep clean as quickly as possible. Cleaning and disinfecting specifics may vary by city or state
  • Q: What steps need to be taken before employees are back to work?
    • A: All employers should develop a policy outlining what steps it will take to ensure social distancing, clean workspaces, and that ensures that it isolates confirmed COVID cases. Any policy should, generally:
      • Require employees maintain a minimum of six feet distance from each other
      • Require facial coverings in the workplace unless otherwise unsafe or prohibited by law
      • Require that employees perform daily symptom assessment
      • Require that employees stay home if symptomatic
      • Require regular handwashing by employees

Cubicles, Conference Rooms and Cafeteria

  • Q: Can I limit the number of people that go into the cafeteria or conference rooms to promote social distancing?
    • A: Yes. We would recommend limiting such gatherings to 10 people or fewer – or, following more stringent state guidance. An employer can limit those in the cafeteria by, for example, staggering lunch times
  • Q: What am I required to do legally to organize office/cubicle spaces to minimize the spread?
    • A: Legal requirements may vary from state to state. However, an employer generally must ensure a minimum of six feet distance between people, and, if this is not possible, should reorganize the workplace or install barriers

Following President Biden’s January mandate to OSHA to provide clear guidance to protect workers from COVID-19 exposure, OSHA has issued “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA’s new guidance is intended to inform employers and workers of the risks of COVID-19, help identify risks of being exposed to and/or contracting COVID-19, and help determine appropriate control measures to reduce the spread of COVID-19 in the workplace. While neither a new standard nor regulation that creates new legal obligations on behalf of employers, this guidance represents a significant shift in OSHA’s response to the pandemic.

OSHA now clearly states that employers should implement COVID-19 prevention programs specific to their workplaces, recommending specific program elements, including:

  • Assigning a workplace coordinator who will be responsible for COVID-19
  • Identifying where and how workers might be exposed to COVID-19 at work through hazard assessments
  • Identifying a combination of control measures that limit the spread of COVID-19 in the workplace
  • Establishing a communication system that all employees can utilize and understand
  • Adopting non-punitive measures and policies to ensure that workers who are infected or potentially infected are separated and sent home from the workplace
  • Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility
  • Making a COVID-19 vaccineor vaccination series available at no cost to eligible employees
  • Continuing to require protective measures despite employees being vaccinated
  • Ensuring that coronavirus policies and procedures are communicated to both English and non-English speaking workers
  • Implement protections from retaliation for workers who raise coronavirus-related concerns

As President Biden continues to make responding to the COVID-19 pandemic a cornerstone of his presidency, employers can likely expect more guidance in the coming weeks.