Tag Archives: Coronavirus (COVID-19)

OSHA’S COVID-19 Vaccine Mandate is Back on!

Contributed by Sara Zorich and Jeff Risch, December 20, 2021

Filling syringe with medicine from vial, closeup

On December 17, 2021, in a 2-1 decision, the 6th Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) previously ordered by the 5th Circuit Court of Appeals. Therefore, OSHA’s ETS mandating workplace vaccination and testing on all private employers with 100 or more employees is back on. While the 6th Circuit did not address timing issues, the day after the decision was released, OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 — so long as an employer is exercising reasonable, good faith efforts to come into compliance.

As you may recall, soon after the ETS was published back on November 5, 2021, the 5th Circuit issued a scathing opinion staying the enforcement of the ETS – which had essentially implemented a January 4, 2022 deadline for the “get the shot or test” requirement.  In the week that followed, legal challenges were brought in every other Circuit Court of Appeals across the country. On November 16, 2021, the matter was assigned through a lottery system to the 6th Circuit. With the 6th Circuit’s decision now in place, the matter has now moved to the U.S. Supreme Court for possible review. The Supreme Court does not have to take on the merits of the matter and could simply allow the 6th Circuit’s decision to stand as is.   

So, what should private employers with 100+ employees do now? 

By January 10, 2022, you will need to implement the following:

  1. Finalize and publish your COVID-19 vaccine policy to all employees (this includes clear messaging that anyone who tests positive for COVID -19 or is diagnosed shall immediately provide notice to their employer and shall refrain from entering the workplace until they meet criteria set by the CDC).
  2. Distribute and publish to all employees the following notices:
    1. Workers’ Rights under the COVID-19 Vaccination and Testing ETS
    2. Information for Employees on Penalties for False Statements and Records
  3. Finalize your Vaccination Roster — obtaining proof of and confirming who is fully vaccinated and who is not — in a confidential manner.
  4. Provide Paid Leave for anyone obtaining the vaccine (note: boosters do NOT count) (up to 4 hours per shot).
  5. Permit a “reasonable amount of time” (i.e. up to 2 days) of paid leave for the recovery from any ill-effects of any vaccination dose.
  6. Mandate that face coverings must be worn by anyone who is not fully vaccinated at all times (unless isolated in an office with four walls and a ceiling).

Then, by February 9, 2022, you will need to: A) require all employees to be fully vaccinated (note: boosters are NOT relevant under the current ETS); and/or B) require all unvaccinated employees to submit to weekly testing.  Under the ETS, employees who are exclusively working remotely or predominately working outside are not subject to these requirements. 

Note, employers must review state and local vaccine requirements and laws when preparing their vaccine policy.  Many state and local laws have been enacted since the original ETS was issued and these laws/regulations might be more stringent, contain different deadlines than the OSHA mandate or may place restrictions on employers who issue a mandatory vaccination policy.

SmithAmundsen’s Labor & Employment, Healthcare and OSHA practices will continue to monitor these developments. 

CMS Vaccine Mandate – On Again (Sort Of)?

Contributed by Suzannah Wilson Overholt, December 16, 2021

syringe and vial bottle with covid 19 vaccine

In the ongoing saga of the federal government’s attempts to impose vaccine mandates on certain sectors, on Wednesday, December 15, the United States Court of Appeals for the Fifth Circuit concluded that the nationwide injunction issued by a Louisiana District Court was overbroad and could only apply to the 14 states that were plaintiffs in the lawsuit. The court stayed the injunction for the 26 states that were not parties to the lawsuit before it or covered by the 10-state injunction issued by the Eastern District of Missouri on November 29. Therefore, the CMS vaccine mandate for healthcare workers is now enjoined in 24 states but could be enforced in 26 states. 

What this means is that the CMS mandate IS NOT in effect for the following 24 states: 

  • Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire (due to injunction issued in Missouri); and
  • Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio (due to Fifth Circuit opinion).

The 26 states in which the CMS mandate could be enforced are as follows:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Tennessee
  • Texas
  • Vermont
  • Virginia
  • Washington
  • Wisconsin

What remains to be seen is when (or whether) CMS will now enforce the mandate in these 26 states. On December 2, CMS instructed state surveyors not to survey providers for compliance with the CMS vaccine mandate requirements, which equated to not enforcing the mandate.  CMS will now need to change its instructions for enforcement efforts to begin – and that has not occurred yet.

Because of the ongoing uncertainty, entities covered by the CMS mandate should continue to be ready to comply with it. However, further guidance should be issued by CMS before compliance is required. We will continue to keep you updated.

CMS Vaccine Mandate Enjoined Nationwide

Contributed by Suzannah Wilson Overholt, December 1, 2021

gavel and scales of justice

On Tuesday, November 30, Louisiana federal district Judge Doughty issued a nationwide injunction against implementation of Centers for Medicare & Medicaid Services’ (CMS) vaccine mandate for health care workers. Judge Doughty’s decision was issued just a day after Missouri federal district Judge Schelp issued a preliminary injunction against the mandate in 10 states. Unlike the Missouri decision, the Louisiana court issued a nationwide injunction due to that court’s conclusion that there was a need for uniformity and protection of unvaccinated healthcare workers. In reaching its decision, the court relied heavily on the Fifth Circuit’s injunction against the OSHA vaccine or test mandate, which we discussed in an earlier blog.

First, the court agreed that plaintiffs were likely to prevail on all of their arguments against the vaccine mandate.  The court concluded that CMS issued the vaccine mandate without following statutorily required processes for notice and comment and rejected CMS’ argument that it met the good cause exception that would exempt it from those requirements. Next, the court found that the mandate was beyond the authority of CMS, concluding that such a sweeping requirement should have at least been issued by Congress, not a federal agency, and questioned whether even Congress would have authority to issue the mandate. 

The court also concluded that the CMS mandate is likely contrary to law because the federal government did not consult with appropriate state agencies regarding the mandate, improperly dictated hiring and firing policies with respect to unvaccinated employees, and did not conduct a regulatory impact analysis for rural hospitals given the mandate’s likely significant impact on rural hospitals.  

In addition, the court agreed that the CMS mandate was likely arbitrary and capricious because it ignores patient well-being and instead focuses on the health of healthcare providers. Plaintiffs maintained that increasing individual vaccine rates would harm patient well-being by causing staff shortages and the federal government failed to consider or arbitrarily rejected alternatives to the mandate, such as daily or weekly COVID testing, wearing masks, natural immunity and/or social distancing. The court found that CMS had not provided any evidence of why it rejected these alternatives or why it departed from its earlier position of not requiring vaccines.  Finally, the court found that the mandate likely violates the states’ police powers and improperly delegates authority to CMS. 

The court next concluded that the states had shown irreparable injury by not being able to enforce their laws that were preempted by the mandate, incurring costs associated with the mandate, by having their police power encroached, and by having substantial burdens placed on the liberty interests of their citizens. Granting the injunction was in the public interest because it would maintain the liberty of individuals who do not want to take the COVID-19 vaccine.  We will keep you updated regarding the status of this issue. In the interim, health care entities who were subject to the CMS rule should be prepared to comply with the rule if the injunction is lifted.  Our prior post discusses the requirements of the rule.

Mandating Vaccines in the Workplace: How to Implement a COVID-19 Vaccine Policy

Contributed by Suzannah Overholt, August 26, 2021

Syringe and vial bottle with COVID-19 corona virus vaccine drug

Now that the Delta variant is surging, employers are venturing into the arena of mandating that their employees take the COVID-19 vaccine. But deciding to mandate vaccination and actually implementing such a requirement is no easy feat.

Rolling out a vaccine requirement involves a delicate balancing act. Employers are gauging the overall vaccine hesitancy in their workforce, the number of employees who may resign rather than be vaccinated, and the difficulty of filling the vacancies. Those considerations have led some employers to wait to impose a vaccine requirement until their competitors do so.

The realities of these considerations are apparent in nursing homes’ response to the announcement that their facilities will be required to mandate the vaccine for their employees or risk losing federal funding. Nursing homes are now concerned that, if the rest of the health care industry is not subject to the same requirement, they will lose even more employees than they have already. 

So how should an employer face this issue?  Some employers have chosen to use an incremental approach. First, they ask employees to let them know if they are vaccinated or plan to get vaccinated. As we reported previously, the EEOC has authorized such inquiries, but the information regarding an employee’s vaccination status must be kept confidential. 

Some employers offer incentives before mandating the vaccine.  As we noted in our previous blog, offering incentives for employees to be vaccinated has been approved by the EEOC. The amount of the incentive depends upon whether the employer is administering the vaccine (lower incentives allowed to avoid coercive effect of incentive) or whether it is being administered by an entity independent from the employer (higher incentives allowed). If the first round of incentives does not achieve the desired effect, some employers have increased the incentive.

Another approach is to implement an education campaign to increase awareness about the benefits and actual risks of the vaccine. This is generally done by directing employees to web sites and other resources with objective information about the vaccines.

Finally, if the incentives and education efforts are not sufficient, employers may mandate the vaccine. The concepts that apply to fostering positive employee relations are a good guide for how to do this. 

First, employers should develop a clear policy that lays out the following: 

  • A definition of what constitutes being vaccinated. Generally speaking, this would be receiving both doses of a two-dose vaccine or a dose of a single-dose vaccine. 
  • A clear deadline for being vaccinated.
  • A requirement that any booster doses also be taken and a timeline for those. 
  • The availability and process for requesting a disability or religious based exemption.
  • Whether PTO will be allowed for time spent taking the vaccine and for any potential side effects.
  • What disciplinary action will be taken for failure to comply.

Once the policy is established, communication is key. Employers should reiterate the benefits of the vaccine and explain the risk to everyone if someone is not vaccinated. A written communication should be distributed to all employees stating the basis for the policy and the expectations.

Finally, the policy must be implemented. Proof of vaccination provided by employees must be kept confidential. Requests for exemptions must be reviewed and acted upon.  Employees who do not comply with the vaccine requirement or accommodations granted pursuant to an exemption must be disciplined. 

Obtaining the advice of qualified counsel before embarking on this process is advisable.

OSHA Revises Its Mask Guidance and Encourages Vaccination of Employees

Contributed by Rebecca Dobbs Bush and Matthew Horn, August 17, 2021

Blue medical face masks isolated on white

Following the Centers for Disease Control’s updated mask and COVID-19 guidance dated July 27, 2021, OSHA finally updated its own mask and COVID-19 guidance on August 13, 2021. The updated guidance can be viewed here.  

Under the new guidance, OSHA recommends that employers require their employees—even those who are fully vaccinated—to wear masks when indoors in areas of substantial or high transmission of COVID-19.  Areas of substantial or high transmission are determined by county and updated by the CDC daily. The CDC’s updated map showing transmission rates by county can be viewed here.  As of today, the vast majority of the counties around the country are considered areas of substantial or high transmission, thereby implicating the updated guidance. 

The new guidance also recommends that fully vaccinated individuals with known or suspected exposure to COVID-19 be tested 3-5 days after exposure, and wear a mask while indoors for 14 days or until they receive a negative test result. Additionally, OSHA emphasizes that vaccination of individuals is the best way to prevent severe illness or death from COVID-19, and recommends that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing. Prior to this updated guidance, OSHA had only published this recommendation for healthcare employers.

If your business operates indoors in an area of substantial or high transmission, we recommend that you require all employees and visitors to wear a mask regardless of vaccination status. However, given the language of its press release and updated guidance, OSHA appears hesitant to enforce this updated guidance—likely acknowledging that many employers will struggle with the implementation of ever-changing mask rules based on local transmission rates.

Lingering COVID-19 Symptoms May Trigger ADA and FMLA Protection

Contributed by Suzanne Newcomb, August 10, 2021

Thin line icon with flat design element of medical diagnostics.

President Biden announced recently that those suffering “Post-Acute Sequelae of Sars-Cov-2 Infection,” aka long haul COVID-19, may qualify for protection under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Our understanding of the aftereffects of COVID-19 continue to evolve. The CDC currently lists the most common post-COVID symptoms on their website. These symptoms include:

  • Dyspnea or increased respiratory effort
  • Fatigue
  • Post-exertional malaise and/or poor endurance “Brain fog,” or cognitive impairment
  • Cough
  • Chest pain
  • Headache
  • Palpitations and/or tachycardia
  • Arthralgia
  • Myalgia
  • Paresthesia
  • Abdominal pain
  • Diarrhea
  • Insomnia and other sleep difficulties
  • Fever
  • Lightheadedness
  • Impaired daily function and mobility
  • Pain
  • Rash (e.g., urticaria)
  • Mood changes
  • Anosmia or dysgeusia
  • Menstrual cycle irregularities

Employers should treat requests for leave or accommodation relating to long haul COVID-19 as they would any other non-obvious impairment.

Employees seeking FMLA leave – whether intermittent or as a block of time:

Is the employer covered by the FMLA? If so, is the employee eligible (i.e. employer has 50 employees within 75 miles of employee’s work site; employee has been employed at least 12 months and worked at least 1250 in the past 12 months)? Provide Form WH-381. Provide the form even if the employee is not eligible for FMLA leave.

If the employee is eligible for FMLA leave, require healthcare certification that the claimed incapacity qualifies the employee for FMLA protection. Provide Form WH-380-E (for employees seeking leave for their own symptoms) or WH-380-F (for employee seeking leave to care for a family member).

Use Form WH-382 to designate the leave as FMLA leave or to notify the employee that the leave is not approved or that additional information is needed.

Individuals seeking ADA Accommodation for post-COVID-19 symptoms:  

Engage in an interactive process with the individual to determine what their limitations are and what  accommodations they seek. Remember, the ADA requires employers to reasonably accommodate employees and applicants for employment who have disabilities.

Conduct an individualized assessment to determine whether the individual has a disability as defined by the ADA. A “disability” in this context is an impairment that substantially limits major life functions. To this end, ask the individual to have their healthcare provider provide written confirmation of:

  • the nature of the impairment, its severity, expected duration, and the extent to which it substantially limits the individual’s major life functions;
  • the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation; and
  • what accommodations the provider believes would allow the individual to safely perform the essential functions of the position.

If it appears the individual has a disability, further engage with the individual regarding potential accommodations. While the ADA does not allow the individual to dictate the accommodation the employer provides, it is preferable for the individual and the employer to agree.

Assess undue hardship on business operations.

Regardless of the outcome, carefully document all steps in the process and clearly communicate with the individual seeking accommodation both during the interactive process and as to the final decision on the matter.

Yes, Your Employer Can Require You To Be Vaccinated, According to a Federal Judge in Texas

Contributed By: John R. Hayes, June 14, 2021

A federal judge in Texas on June 12, 2021 dismissed a lawsuit brought by Texas health care workers challenging their hospital’s COVID-19 vaccine mandate. The scathing opinion by U.S. District Judge Lynn N. Hughes left no doubt that he believed the claims of the 117 plaintiffs were without merit.

The lawsuit was brought by employees of Houston Methodist Hospital, who had refused the vaccine, after the hospital in April announced a policy requiring  vaccination of all employees.  In early June, over 170 employees of the hospital were suspended for two weeks without pay over their decision to refuse getting the COVID-19 vaccine. If these employees did not get vaccinated within two weeks then they would be terminated. At the time of the filing, almost 25,000 Hospital employees had complied with the vaccination requirement, and approximately 285 employees had received medical or religious exemptions. 

The employees refusing the vaccine claimed that the policy of the hospital requiring the COVID-19 vaccine of its employees was an effort to coerce them into becoming test subjects for an untested and unreliable vaccine. Echoing a refrain made by many who are refusing the vaccine, the plaintiffs argued that the lack of full approval by the Food and Drug Administration (FDA), justified their refusal to get vaccinated. While not yet granting full approval for the three vaccines in the United States, the FDA has granted emergency use authorization for the vaccines, and approximately 173 million Americans have received at least one dose, with over 143 million being fully vaccinated.

In his opinion, Judge Hughes found that the plaintiffs were not “coerced” to get the vaccine, and that public policy clearly supports widespread inoculation efforts. Specifically, the court said that lead plaintiff and nurse Jennifer Bridges’ claims that the vaccines are “experimental and dangerous” were “false” and “irrelevant.”  He went on to say Bridges’ argument that the vaccine requirement equates to medical experimentation in Nazi concentration camps was “reprehensible.” 

Further explaining that the employees were not coerced, Judge Hughes stated that the hospital “is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Calling it “all part of the bargain” between a worker and their employer, the court stated “every employment includes limits on the worker’s behavior in exchange for his renumeration.”   

While the focus of the opinion was on Texas law regarding wrongful discharge, it appears to be the first of its kind regarding vaccine mandates, and has implications nationwide.  Judge Hughes cited to the Equal Employment Opportunity Commission’s (EEOC) updated May 28, 2021 guidance that employers can require employees to be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. He further stated that while this guidance is not binding “it is advice about the position one is likely to meet at the Commission.” 

The lawyer for the plaintiffs stated he planned to pursue an appeal.

Ultimately, the decision whether or not to mandate vaccination of its employees is up to the individual employer. While some hospital systems and other health care institutions such as nursing homes and home health care providers in the country are moving to require COVID-19 shots, many private employers have not yet taken that step. And although the EEOC has said employers can require vaccines, subject to certain exemptions, there still remain questions on the legality of doing so, as evidenced by this lawsuit. Any workplace vaccination policy—whether a mandate or one that provides incentives to get the shot—should be carefully considered in advance, ideally vetted by experienced employment counsel. 

We are continuing to monitor this evolving situation, and will update our blog with any new developments.

UPDATED: I Don’t Want to Wear a Mask…Part 4: OSHA Weighs In!

Contributed By Michael Wong, May 17, 2021

Blue medical face masks isolated on white

***On May 17, 2021, OSHA updated its web page regarding “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to state the following:

“The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

The CDC’s May 13, 2021 guidance “Interim Public Health Recommendations for Fully Vaccinated People” states that fully vaccinated people can “Resume activities without wearing masks or physically distancing, EXCEPT where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. Fully vaccinated people should also continue to wear a well-fitted mask in correctional facilities and homeless shelters. Prevention measures are still recommended for unvaccinated people.”

However, the CDC has not made any changes to its workplace guidance regarding the use of masks. In particular, the CDC still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate”, and does not differentiate between those who have been vaccinated and those who have not. 

Finally, even though the CDC and OSHA have issued this guidance, a patchwork of state and local policies or rules are popping up making it clear that an “across the board” mask-free workplace is not without legal risk for employers.

What does this mean for the workplace?

OSHA’s updated reference to the CDC’s guidance has essentially made this issue a little more clear. In doing so though, OSHA and the CDC has opened the door to employers and businesses allowing employees to be in the workplace without a mask, if they are fully vaccinated, but has not provided any guidance or direction on how to do so. The risk of OSHA issuing a fine or penalty on this issue has been reduced as long as the company is taking common sense steps to protect its employees, which could include (i) requiring verification or confirmation by employees that they have been fully vaccinated before allowing them to be mask free in the workplace; and (ii) modifying guidance to allow employees who have been vaccinated to not wear a mask in the workplace, unless interacting with or in a part of the business where there are customers, clients or the public.

In considering revised policies, employers should remember that there is still risk from workers’ compensation claims. While being vaccinated reduces the possibility of getting COVID-19, if an employee is not wearing a mask in the workplace and gets COVID-19, the employer could still face a workers’ compensation claim that the employee got COVID-19 at work. 

With respect to customers or clients coming into the business, the issue is even muddier, as the CDC and OSHA guidelines are unclear on what is expected of businesses and employers at this point. For example, if a business allows customers or clients into the business without a mask, do they have to verify that they have been vaccinated? Moreover, there is no guidance on what questions a business could ask a customer or client to confirm if he or she has been vaccinated. 

As such, this still means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines.

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies may not have changed.

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place.

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

For further information on this matter, keep an eye out for our timely webcast, “Mask Mandate Mayhem! A Briefing for Confused Employers” on Monday, May 24th at Noon CT.  

I Don’t Want to Wear a Mask…Part 3: Land of the Mask Free and Home of the Brave

Contributed By Michael Wong, May 14, 2021

Blue medical face masks isolated on white

On May 13, 2021, the CDC issued new guidance stating that those who are fully vaccinated can resume activities without wearing a mask or social distancing. Following the CDC’s announcement, President Biden lifted the mask mandate that was required by staff and visitors of the White House.  

While the CDC has issued this guidance, a patchwork of state and local policies or rules are popping up making clear that we are not going to be mask free quite yet. More importantly, the CDC’s announcement contained a big “EXCEPTION” by stating “except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local businesses and workplace guidance.”

To be clear, the CDC has not made any changes to its workplace guidance regarding the use of masks. The CDC guidance still advises employers to “encourage employees to wear face coverings in the workplace, if appropriate.” More importantly though for employers, OSHA still states that employers and businesses should require the use of face masks and emphasizes that “employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious harm. In fact, President Biden’s “lifting of the mask mandate” for staff and visitors could potentially be considered a violation of CDC and OSHA guidance regarding workplaces.

Employer and business compliance with CDC and OSHA Guidelines is still very important, especially with the potential for fines. Recently, OSHA issued a $136,532 penalty and citation to a Massachusetts company for prohibiting employees and customers from wearing face coverings in the workplace and requiring employees to work within six feet of each other and customers for multiple hours while not wearing face coverings, finding that the company’s actions put its employees safety at risk of recognized hazards that are causing or likely to cause death or serious physical harm.

The issue gets even more complicated at the state and local level. Some states, including New York, New Jersey, North Carolina, and Maine, have advised that they will not be modifying their mask mandates at this time. Many other states, including Illinois, Kentucky, Minnesota, Nevada, Oregon, Pennsylvania, Connecticut, and California have begun adjusting their mask mandates and guidance (including setting dates for them to tentatively end).  While other states, including Alabama, Arkansas, Iowa, Mississippi, Montana, New Hampshire, and Texas, have already rescinded their statewide mask mandates. To make things even more confusing, even in the states that have rescinded the state wide mask mandates, some local governments have maintained mask mandates including those for employees and/or customers. Then to make it even more unclear, Indiana just passed a law stating that the decision regarding masks is now controlled by city councils and mayors/elected officials and not local health officers. At least one county in Indiana, Marion County, which covers Indianapolis and its surrounding suburbs, has already had its City Council vote to continue its mask mandate.

What does this mean for businesses?
This means that businesses must still require employees to wear masks in the workplace and must still require customers coming into the business to wear masks unless otherwise allowed by state or local guidelines, and even then you are still required to comply with OSHA requirements.

This also means that training, education and communicating with employees and customers will be vital within the next few weeks and months. Many employees and customers will hear about the federal “unmasking,” but will not understand that it does not apply to employers or businesses based on state or local requirements or guidelines. Moreover, as OSHA has now made clear by fining businesses, there are repercussions for employers and businesses violating the face mask requirements and guidance. 

Training for employees should include methods on addressing, managing and de-escalating conflicts with customers and between employees. In particular, re-emphasizing and educating employees on how to communicate the business’ policies and more importantly the reason why the business’ policies have not changed. This is vitally important to avoid “viral videos” of confrontations as businesses will no longer be able to point to a presidential mandate or executive order to validate mask policies. Rather, businesses will have to educate employees and customers on federal, state and local requirements and guidelines for businesses and make clear that the “mask free” announcement for those with vaccinations are limited to public and social activities and not so much the workplace, business interactions and shopping. 

Finally, don’t forget that employer and business obligations regarding reasonable accommodation of disabilities and religious beliefs under the ADA and Title VII are still in place. 

Due to the complexity and interplay of federal, state, local, tribal or territorial laws, rules and regulations, including CDC, OSHA and state and local health departments and governments, it is important to use legal counsel experienced and knowledgeable in labor and employment law to help you navigate these waters.

COVID-19 Extension of Group Welfare Plan Benefit Deadlines Clarified Bringing Potential Relief for Employers

Contributed by Rebecca Dobbs Bush, March 9, 2021

hand holding megaphone – benefits

In a previous blog article, we alerted readers to the extension of deadlines related to COBRA, Special Enrollment, Plan Disclosures and more. The prior Joint Notice from the DOL and IRS provided suspension of all deadlines until 60 days after the expiration of the National Emergency, referred to as the “Outbreak Period.”

The issue requiring clarification arose due to the unanticipated length of the Outbreak Period.  Much like all of us, the IRS and DOL did not foresee an Outbreak Period continuing well over a year later.  As the one-year anniversary of the Outbreak Period approached, a conflict began to arise with ERISA section 518 and Code section 7508A(b). Those provisions generally provide that the Secretaries of Labor and the Treasury may prescribe extensions of only up to one-year when it relates to a Presidentially declared disaster. Accordingly, some plans were contemplating a complete disregard of further extensions based on the one-year limitation on the emergency rule-making process.  Anticipating this potential action by plan sponsors, the DOL (also on behalf of the IRS) issued Disaster Relief Notice 2021-01.

However, with Notice 2021-01, the intended “clarification” of the discrepancy has led to a much more administratively complicated process.  Now, plan sponsors and participants must apply the extension on an individual basis for each separate deadline versus the previously declared extension of all deadlines.  Notice 2021-01 confirms that individual deadlines are revised to the earlier of: (1) one year from the date of the original deadline, or (2) the end of the Outbreak Period (previously defined and which has yet to occur).

Several specific examples were provided in Notice 2021-01 to help illustrate the revised administration of plan deadlines:

  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2020, the Joint Notice delays that requirement until February 28, 2021 – which is the earlier of 1 year from March 1, 2020 or the end of the Outbreak Period (which remains ongoing).
  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2021, the election deadline is now delayed until the earlier of 1 year from that date (i.e., March 1, 2022) or the end of the Outbreak Period.
  • If a plan would have been required to furnish a notice or disclosure by March 1, 2020, the relief under the Notice would end with respect to that specific notice or disclosure on February 28, 2021.

Note that none of the examples provided allow for a deadline extension of more than 1 year.  For this reason, Notice 2021-01 provides much needed relief for employers that were trying to manage never-ending extensions for COBRA elections, payments, etc. And as additional relief for employers, the DOL specifically indicates that prior notices furnished without relying on the relief set forth in Notice 2021-01, do not need to be reissued.   

Within Notice 2021-01, the DOL also reminds plan sponsors that “The guiding principle for administering employee benefit plans is to act reasonably, prudently, and in the interest of the workers and their families who rely on their health, retirement, and other employee benefit plans for their physical and economic well-being.”  In keeping with this guiding principle, the DOL encourages plan sponsors to consider affirmatively sending notices to those participants that are now facing the end of the relief period advising them of such.  In other words, if you now have COBRA participants or others that will be suddenly subject to election or payment deadlines, it is best practice to provide them with some type of notice or communication to that effect.