The American Rescue Plan Act (ARPA), signed by President Joe Biden on March 11, 2021, included a COBRA Subsidy covering 100% of COBRA premiums for “Assistance Eligible Individuals” during the period of April 1, 2021 through September 30, 2021. The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns.
Pursuant to ARPA, employers are required to notify certain individuals about potential eligibility and details of the subsidy by May 31, 2021. Individuals then have 60-days to elect. And although Notice 2021-01 described extensions of various plan deadlines for potentially up to 1-year or 60-days after the expiration of the “Outbreak Period,” the US Department of Labor (DOL) now makes clear in its FAQ on COBRA premium assistance under the American Rescue Plan Act of 2021, that this extension of timeframes for employee benefit plans does not apply to notice periods related to the COBRA premium assistance. Also noted within the published FAQ, a penalty of $100 per qualified beneficiary, not to exceed more than $200 per family, may be assessed on employers for each day they are in violation of the COBRA rules.
(Note: This may include providing notice to individuals currently enrolled in COBRA continuation coverage, individuals that never elected COBRA, or those that elected and then dropped COBRA continuation.)
Finally, as ARPA also requires employers to notify individuals approaching the end of their premium assistance eligibility period, the US DOL has provided a model notice of expiration. This notice is to be provided to individuals 15-45 days before their premium assistance is set to expire.
The above model notices cannot be used without modification that customizes each with specific information about the relevant individual and the employer’s group health plan. As potential fines for noncompliance can be steep, employers should carefully set procedures for timely distribution of all requisite notices.
The short answer is: Be careful what you wish for! During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.
The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination. For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax. This is different from someone not getting vaccinated due to a disability or religious belief. Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context. The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability. Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated.
If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.
The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised). (See Sections K.8 and K.9 of the EEOC guidance described above). Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.
Again, be careful what you wish for. It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not? What are you going to do with this information? Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question).
In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings.
In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily, starting November 19, 2020 and lasting for 21 days. Notably, the curfew does not apply to those going to or from work, those who have an emergency, or those who need medical care. The curfew is not intended to stop anyone from getting groceries or going to a pharmacy. Picking up carry-out or a drive-thru meal and ordering for delivery are also permitted, but serving food and drink in person must cease at 10 PM.
Effective as of November 17, 2020, the Ohio Department of Health has instituted limitations on the following types of mass gatherings: wedding receptions, funeral repasts, and other events at banquet facilities. Those limitations are as follows:
No socializing or activities in open congregate areas and no dancing.
Guests must be seated at all times. However, traditional wedding reception events such as first dance, toasts, tossing the bouquet and cutting the cake are permitted.
If serving food and beverages, guests must be served at their seats. No self-serve buffets and no self-serve bar areas permitted.
Masks must be worn at all times unless actively consuming food or beverages.
No more than 10 people should be seated at a table and those individuals must be from the same household.
The order does not apply to religious observances; First Amendment protected speech, including petition or referendum circulators, and any activity by media; and to governmental meetings which include meetings that are required to be open to the public.
Existing COVID-19 Business Protocols and Guidance Remain in Effect
While the Ohio Department of Health has lifted many of the mandatory business requirements initially put into place in response to the COVID-19 pandemic, there are still several established workplace requirements. In general, all employers are required to:
Require all employees to wear face coverings unless they are prohibited by law or regulation; in violation of documented industry standards; not advisable for health reasons; in violation of the business’s documented safety policies; or there is a functional/practical reason not to wear one. They also are not required for employees who work alone in an assigned work area.
Practical reasons not to wear face coverings include, but are not limited to, high temperatures in facilities or employees separated by more than 6 feet on a manufacturing floor.
Comply with social distancing requirements of the U.S. Centers for Disease Control and Prevention and Ohio Department of Health, including, where possible:
Designating 6 foot distances with signage, tape, or other means to allow for adequate social distancing between employees; this also applies to customers in lines.
Having hand sanitizer and sanitizing products readily available for employees and any customers.
Establishing separate operating hours for elderly and other vulnerable populations.
Posting online whether a facility is open and how best to reach the facility and continue services by phone or in another remote manner.
Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
If employees do report to workplaces:
Actively encourage sick employees to stay home until they have recovered.
Guidelines from the Centers for Disease Control and Prevention for people with confirmed or suspected COVID-19 are as follows:
Employees with symptoms (including those who have tested positive and those who have not been tested) should stay home until:
At least 10 days have passed since symptoms first began; AND
At least 24 hours have passed since there has been no fever without use of fever-reducing medication; AND
There has been improvement in other symptoms.
If an employee is severely immunocompromised, a health care provider may determine that a longer time frame is recommended.
Employees without symptoms who have lab-confirmed COVID-19 should stay home until at least 10 days have passed since the date of the positive test. However, if the employee develops symptoms in that time period, then the employee should follow the criteria for people with symptoms.
Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, counter tops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable disinfectant wipes so that commonly used surfaces can be wiped down by employees before each use.
Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
In addition to the general guidance, there are specific guidance for certain sectors, including offices, health care, assisted living facilities, and bars and restaurants, which are available on the Ohio Department of Health website.
Local communities and municipalities are permitted to enact guidance or requirements. For example, the City of Columbus and Franklin County issued a COVID-19 Health Advisory, which generally follows many of the state guidelines. Accordingly, Ohio employers should work with experienced labor and employment counsel to confirm that they are in compliance with all applicable state, city/local, county and federal requirements and guidelines.
The State of Missouri has continued to resist imposing significant state-wide orders to combat the spread of COVID-19. However, with positivity rates on the rise and pressure increasing on health providers throughout the state, some localities have recently enacted enhanced restrictions on businesses and social gatherings to combat the spread.
One such locality is St. Louis County, which enacted the following health orders, which went into effect on Tuesday, November 17, 2020:
Residents are required to stay at home, unless to travel to and from work and other limited specific purposes such as shopping for groceries, education purposes or obtaining medical care
Social gatherings are limited to no more than 10 persons
Aside for defined business exceptions such as hospitals, public transit and schools, all businesses providing goods and services are limited to 25% or less of its permitted occupancy; all employees are required to wear face coverings and comply with social distancing requirements
Restaurants are limited to providing outdoor service, carryout and delivery
All residents are required to regularly self-observe for COVID-19 symptoms and if, at any time, a person develops such symptoms, they are required to self-isolate, limit contact with others and seek medical advice and/or be tested for COVID-19
Residents who have been in close contact with COVID-19 positive individuals or who them themselves been exposed to COVID-19 is instructed to quarantine for a period of 15 days after the last exposure
Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
Residents who test positive and/or who have COVID-19 symptoms and who are awaiting results are instructed to isolate until cleared by the Department of Public Health for a period of 10 to 14 days, depending on individual factors
Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
While not as extensive, St. Louis City also issued an additional order this week, which went into effect on November 14, 2020. Specifically, it reaffirmed all prior orders already in effect in the city and further placed the following restrictions on private gatherings:
Private gatherings of more than 10 attendees are prohibited
The city recommends any gatherings with less than 10 attendees be limited to no more than 1-2 households, and that those households remain consistent throughout the gathering
The order further clarifies that it also applies to businesses, schools and government offices, all of which are still required to require face masks and to require social distancing and hygiene measures of employees and other individuals
As has been the case throughout the pandemic, these measures are always subject to modification based on conditions and potential legal challenges. That is especially true in Missouri where localities are enacting their own sometimes-inconsistent orders in the absence of state-wide measures. Accordingly, Missouri employers should consult with experienced labor and employment counsel to ensure that they are in compliance with all current state, city/local and county-wide orders.
Although Wisconsin has no statewide or industry-specific requirements, Governor Evers’ November 10, 2020 Executive Order “strongly encouraged” all businesses to take a number of precautions in response to the COVID-19 resurgence, including:
Hold meetings and collaborate online or by phone, even if staff are physically present at the worksite
Alternate work teams or stagger shifts
Require staff, customers, and the public to wear masks, and require social distancing of 6 feet between all individuals at the worksite
Prevent staff from entering the worksite if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19
Increase standards of facility cleaning and disinfection of all areas, emphasizing “high-touch areas” including door handles, railings, restrooms, buttons, office equipment, tools, payment devices or cash registers, and counters
Post signage reminding staff and customers of safe business practices, social distancing requirements, hand hygiene, and cough/sneeze etiquette
Where possible, offer curbside pick-up and drop-off, and delivery of goods and services
Where possible, offer online or phone payments, appointments, and reservations
Local communities and municipalities are permitted to enact requirements and several Wisconsin municipalities have issued their own emergency orders, including Madison & Dane County, City of Milwaukee, Eau Claire City, and the City of Wausau. Accordingly, Wisconsin employers should consult with counsel to verify that they are in compliance with all current state, city/local and county-wide orders.
New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions:
Manufacturing (Implementation of safety guidelines):
Additional COVID-19 training for all employees (even if previous training occurred)
Employers to coordinate with IDPH to implement testing protocols and contact tracing
Face coverings at all times, except for safety purposes
Only manufacturing staff and key personnel allowed in facilities
Non-production employees must work remotely
Non-essential staff and visitors are not permitted
Exemptions only for critical equipment repairs, supply deliveries and safety reasons (“critical visitors”)
All critical visitors must have an Employee Health and Safety (EHS)-approved risk-assessment done in advance, including travel history, tracking, and temperature check prior to entrance
Implement additional workstation realignment when feasible
Stagger and space shifts and entrances
Station sanitation required at beginning and ending of shifts
Suspension of COVID-19 incentive pay (promote staying home when sick or showing symptoms)
Implement temporary leave policies to accommodate sick workers
Develop and implement safety protocols for employee travel vans to promote spacing, require face coverings, temperature checks, air circulation, and vehicle sanitization
Bars/Restaurants (including private and country clubs)
Closed between 11 PM and 6 AM
Outdoor service only
Patrons, limited to groups of 6, should be seated at tables (6 feet apart)
No multiple parties at tables
Reservation required (no standing/congregating while waiting)
No service at bar
Indoor gaming terminals must suspend operations
All employees who can work remotely should do so
Operation at 25% capacity for general merchandise stores, “big box” stores that offer groceries and pharmacy, and convenience stores
Operation at 50% for grocery stores and pharmacies may operate at up to 50% capacity
Curbside delivery and pickup options wherever possible
When in-store shopping is necessary, promote efficient trips and consistent circulation
Occupancy limited to registered guests only
Fitness centers should be closed, or operated only on a reservation model, with capacity limited to 25% of the maximum occupancy for the room
Grab and go food allowed
Event and meeting space closed
Personal Care Services
Operate at lesser of 25 clients or 25% capacity
Face coverings required (suspension of facials, beard trims and other face services)
Physical, occupational and massage therapy allowed as deemed necessary by a medical provider:
Appointments must be spaced by a minimum of 15 minutes and facilities should take steps to sanitize and circulate clean air through service rooms before and after each service
Virtual consultations recommended
25% capacity or less
No indoor group classes
Face coverings must be worn at all times, including while engaged in individual exercise regardless of person or machine spacing
Locker room areas to be closed
Meetings and Gatherings
Limit home gatherings to household members
No gatherings at meeting rooms, banquet centers, private party rooms, private clubs and country clubs
No party buses
Funerals are limited to 10 family members of the decedents, not including staff
Recreational and Sporting Activities (includes park districts and travel leagues)
Pause all indoor group sporting and recreational activities (youth and adult recreational sports)
Individual training may remain (with facility reservation)
Outdoor sports and recreation allowed, but limited to 10 persons or less with social distancing (no locker rooms)
Face coverings required for all activities at all times
Gaming, Theaters, Museums, and Indoor Amusement
Gaming and casinos closed
Indoor recreation centers, including theaters, performing arts centers and indoor museums and amusement centers closed
Live streaming of performances encouraged (social distancing of performers and minimum operational staff)
Outdoor activities (reservations required) allowed at 25% capacity or less
Outdoor group activities limited to 10 persons or less (participants must wear face coverings at all times)
Previously exempt functions (i.e. infrastructure, governments, logistics and warehousing etc.) may continue regular operations, but Illinois is encouraging voluntarily and proactive application of mitigation steps whenever possible.
As with all matters involving COVID-19, these mitigation measures are fluid and subject to change. We will continue to monitor and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html
Indiana Governor Eric Holcomb announced new coronavirus restrictions on November 13 that took effect on November 15, 2020 and continue through December 12, 2020. All businesses are allowed to be open subject to the restrictions in Executive Order 20-48. Executive Order 20-48 implements a county by county assessment that determines various measures, including crowd sizes, depending on the level of COVID-19 in that county (e.g. 25 people in red counties and 50 people in orange counties, with larger events needing approval from health officials). Businesses in higher risk counties are encouraged to take measures to ensure social distancing and protect their workforce.
Hoosiers who test positive for COVID-19 are required to quarantine.
Social distancing is required except with members of your own household.
Face shields are encouraged for individuals with such health/physical conditions.
Face coverings are required for individuals over two years of age who do not have a health or other condition that makes wearing a mask an undue risk.
Face coverings are required in indoor public spaces, outdoor spaces where social distancing is not possible, while using public transit, and in all schools.
NOTE: The requirement does not apply while eating or being seated at a restaurant to eat, while exercising and maintaining social distancing, or attending a church service.
All customers in restaurants and bars are required to be seated, and tables, counters, or other seating arrangements must be spaced six feet apart.
Hospitals are encouraged to reprioritize or postpone non-emergent procedures.
For most counties (orange), attendance at indoor school events is limited to 25% capacity.
Recreational sporting leagues are limited to participants and required personnel.
Communities are permitted to enact more stringent restrictions. Indianapolis continues to do so. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html
Join us on Wednesday, September 23 from 9:00 AM – 11:30 AM CT for our sixth annual complimentary Labor & Employment Fall Seminar! Our attorneys will discuss the topics that are always on your mind, from COVID-19 to employee benefits, and everything in between.
As with most other events this year, we’ve pivoted to an online format. We’re excited to be able to offer you our conference this year as a live stream of our panel from the comfort of your home.
Contributed by SmithAmundsen’s COVID-19 Task Force, March 18, 2020
As we previously reported, on March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. In the face of some pushback from the “small business community” and other “special interests,” the House subsequently revised the original legislation and delivered it to the U.S. Senate on March 16, 2020. Today, March 18, 2020, the U.S. Senate passed a modified bill for the President’s signature. The mandates focus on three (3) primary areas that employers must IMMEDIATELY pay close attention to: 1) PAID LEAVE; 2) EXPANSION OF FMLA LEAVE; and 3) EXPANSION OF UI BENEFITS (including the possible extension of UI benefits beyond 26-weeks). Once signed into law, the mandates are set to expire on December 31, 2020.
Paid Sick Leave:
All private sector employers with LESS THAN 500 employees and all government employers must pay any employee 2-weeks of paid leave (up to 80 hours for full-time workers, and the average number of hours over a standard 2-week period of time for part-time workers).
All private sector employers with 500 OR MORE employees (regardless of location) are exempt.
Paid sick leave will be provided to any employee who is not able to work or able to work remotely (“telework”) under the following circumstances:
Subject to a government quarantine or isolation order related to COVID -19;
Been advised by health provider to self -quarantine due to COVID -19;
Experiencing symptoms of COVID -19 and seeking a medical diagnosis;
Caring for an individual subject to quarantine order or self -quarantine;
Caring for children if schools are closed or their caregiver is unavailable because of a public health emergency ; or
A “catch all” category for other substantially similar conditions as may be specified by the Secretary of Health and Human Services in consult with other federal agencies.
Employers with less than 50 employees may be exempt from this paid sick leave mandate. The U.S. DOL will publish regulations that will guide small employers on the exemption process. The exemption will be triggered if the “viability” of the business is in jeopardy — due to the mandates. There is also an exemption for healthcare workers and emergency responders.
Such paid sick leave appears to be NOT in addition to other paid sick leave policies or local/state mandates. Also, there is nothing prohibiting an employer from changing its voluntary paid time off policies after the effective date.
The amount of paid leave is capped. Employees are compensated at the higher of their regular rate of pay, the federal minimum wage, or the local minimum wage, but not to exceed $511 per day and $5,110 in the total.
However, if an employee must care for a sick family member, a child unable to attend school, or because they meet the criteria for “similar conditions,” then they are to be paid 2/3rds of the rate of their regular rate of pay, but not to exceed $200 per day and $2,000 in total.
Each quarter, private sector employers are entitled to a tax credit equal to 100% of the qualified sick leave wages paid.
The tax credit will be applied against the employer’s Social Security taxes.
Due to concerns over an employer’s cash flow, the U.S. Treasury Secretary has broad regulatory authority to help employers meet their financial obligations while awaiting the tax credit.
The employer can also seek a tax credit to offset any costs of continuing to provide health insurance while the worker is utilizing this benefit.
The payments made under these mandates are not considered wages for Social Security payroll tax purposes.
Interestingly, the self-employed can also receive the same tax credits as if they were employed by an employer under the new paid sick leave mandate.
2. Paid Family and Medical Leave (FMLA):
All private sector employers with LESS THAN 500 employees and all government employers must provide any employee (who has been employed for 30 calendar days or more) up to 12 weeks of paid family and medical leave (FMLA) in order to care for children (under 18), if and when: a) schools are closed or daycare is unavailable because of the current emergency and b) the employee is unable to work or work remotely (“telework”).
There is no 75 mile radius or hours worked requirement.
All private sector employers with 500 OR MORE employees (regardless of location) are exempt.
After 10 days (or what would likely be the equivalent of the paid sick leave mandate as summarized above), an eligible employee would be entitled to additional pay at the rate of 2/3rds his or her regular rate of pay.
Employers with less than 50 employees may be exempt from this paid leave mandate. The U.S. DOL will publish regulations that will guide small employers on the exemption process. The exemption will be triggered if the “viability” of the business is in jeopardy — due to the mandates. Further, such employers will not be subject to civil penalties for violating this leave mandate. There is also an exemption for healthcare workers and emergency responders whereby their employers may exclude them at the employer’s discretion.
Such leave appears to be NOT in addition to other sick leave policies or local/state mandates. Also, there is nothing prohibiting an employer from changing its voluntary leave policies after the effective date.
The paid leave component here is also capped. The caps are $200 per day and $10,000 in total.
Each quarter, private sector employers will be entitled to a tax credit equal to 100% of any paid FMLA benefits.
Again, due to concerns over an employer’s cash flow, the U.S. Treasury Secretary has broad regulatory authority to help employers meet their financial obligations while awaiting the tax credit.
The employer can also seek a tax credit to offset the costs of continuing to provide health insurance while the employee is on this leave.
Paid sick leave is not considered wages for Social Security payroll tax purposes.
Self-employed individuals can also receive the same tax credits as if they were employed by an employer under the new paid sick leave mandate for up to 50 days.
3. Unemployment Compensation:
The federal government is allowing and encouraging states to be more flexible with respect to eligibility.
The federal government will provide states $1 billion in additional funding for UI benefits.
HR6201 also authorizes states to extend unemployment benefits beyond 26 weeks should they experience higher levels of unemployment.
President Trump is expected to sign this any moment!
SmithAmundsen’s Labor & Employment COVID-19 Task Force is continuing to monitor all local, state and federal orders and legislative initiatives in these unprecedented times. Be assured that we will continue to provide updates where and when warranted. We will also be providing ongoing webinars on the subject to try and help employers operate as effectively and safely as possible. With that in mind, please do not hesitate to contact your SA relationship attorney in the days and weeks ahead for direct guidance. We are here 24/7.