Tag Archives: Employment Law

Stage 2 of Reopening California Businesses Starts Friday

11 May

By Alix Martichoux

Stage TwoMonday that the next stage of reopening California’s economy will begin as early as Friday. Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, including book stores, clothing stores, toy stores, florists and others.

SAN FRANCISCO (KGO) — Gov. Gavin Newsom announced Monday that the next stage of reopening California’s economy will begin Friday, May 8, 2020.

Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, May 8, including bookstores, clothing stores, toy stores, florists and others. Associated manufacturers that support those retail supply chains will also be allowed to resume production.

Those businesses will be allowed to reopen for curbside pick-up, given they follow additional safety and hygiene protocols that will be released Thursday, Newsom said.

This step doesn’t include all businesses in the state’s “Stage 2,” Department of Public Health Director Dr. Sonia Angell clarified. At this time, office buildings, dine-in restaurants and shopping malls will not be allowed to reopen. (The state’s full four-stage plan to reopen is outlined below.)

Newsom emphasized that local officials still have the authority to accelerate or slow down reopening at the county level.

“We are not telling locals that believe it’s too soon, too fast to modify. We believe those local communities that have separate timelines should be afforded the capacity to advance those timelines,” he said, citing the Bay Area’s “stricter guidelines.”

“If they choose not to come into compliance with the state guidelines, they have that right,” the governor said.

More rural or remote counties with fewer COVID-19 cases will also be allowed to reopen businesses sooner, the governor said, as long as their decisions don’t risk the “the health of the entire state.”

The state is working to create guidelines that will allow restaurants and other hospitality businesses to open their doors again, as well.

“This is a very positive sign and it has happened for only one reason: the data says it can happen,” said Newsom. “But we recognize as we begin to modify … possible community spread will occur. If that is the case, and we don’t have the capacity to control that spread, to track that spread, to isolate individuals that may have been in contact with COVID-19, we will have to make modifications anew.”

The state plans to reopen those sectors in four stages, as described by Dr. Angell:

Stage 1: Everyone is either staying at home or a member of the essential workforce. This is the stage we are in now, and will stay in until a modification to the statewide stay-at-home order.

Stage 2: Reopening lower risk workplaces, including:

  • Non-essential manufacturing (toys, furniture, clothing, etc.)
  • Schools
  • Childcare facilities
  • Retail businesses for curbside pick-up
  • Offices where working remotely isn’t possible, but can be modified to make the environment safer for employees

Stage 3: Reopening higher risk workplaces, which require close proximity to other people, including:

  • Hair salons
  • Nail salons
  • Gyms
  • Movie theaters
  • Sporting events without live audiences
  • In-person religious services (churches and weddings)

Stage 4: Ending the stay-at-home order, which would allow for the reopening of:

  • Concert venues
  • Convention centers
  • Sporting events with live audiences

 

New Model COBRA Notices and Emergency Extensions to COBRA Deadlines Require Employers to Take Action

By Brian M. Johnston and Keith A. Dropkin on May 4, 2020 Jackson Lewis PC

The Department of Labor (DOL) and other federal regulators released updates and clarifications related to employee benefits, including updates to model COBRA notices and an extension of certain statutory deadlines intended to minimize the possibility of participants and beneficiaries losing benefits during the COVID-19 pandemic. This article highlights the DOL’s recent changes and updates relating to Consolidated Omnibus Budget Reconciliation Act (COBRA).

Updated COBRA Notices

CobraOn May 1, 2020, the DOL released the first updates to its model COBRA Notices since 2014. The models are for the (i) general or initial notice (provided to employees and covered spouses within the first 90 days of coverage under the group health plan), and (ii) the election notice (provided to qualified beneficiaries within 44 days of the qualifying event resulting in a loss of coverage). The notices inform plan participants and other qualified beneficiaries of their rights to health continuation coverage upon a qualifying event. The release of these updated model COBRA notices is an important reminder for employers to ensure that plan participants receive timely and adequate information about their COBRA rights.

More Information about Medicare:  The primary update to the DOL model notice is a new Q&A section, “Can I enroll in Medicare instead of COBRA continuation coverage after my group health plan coverage ends?”, with similar content in a companion FAQ about COBRA and Medicare options.

Risk of Noncompliance

Employers do not have to use the model notices, however the DOL considers using the model notices, appropriately completed, to be good-faith compliance with COBRA’s notice content requirements. Our firm recently discussed the rapid expansion of class action litigation against employers that issued COBRA election notices that failed to follow the DOL model notice in detail. We strongly recommend that employers use the updated DOL COBRA notice forms (or some enhanced version of such notices).

If the updated model notices are not used, the employer should ensure that their COBRA notices include the most current information from the DOL. Because of the significant exposure for COBRA noncompliance, and because employers retain liability for COBRA compliance even if a third-party vendor is hired for COBRA administration, employers should have their COBRA notices regularly reviewed.

COBRA Deadline Extensions

On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a Joint Notice extending certain time frames affecting a participant’s right to continuation of group health plan coverage under COBRA after employment ends. Normally, a qualified beneficiary has 60 days from the date of receipt of the COBRA notice to elect COBRA, another 45 days after the date of the COBRA election to make the initial required COBRA premium payments, and COBRA coverage may be terminated for failure to pay premiums timely. A premium is considered timely if paid within a 30-day grace period.

The Joint Notice extends the above deadlines (and many other participant-related deadlines such as HIPAA special enrollments, claim appeals and external review filings) by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the National Emergency (known as the “Outbreak Period”).

Election Period Extension:  once a participant receives his or her timely COBRA election notification, the applicable COBRA deadlines are now extended until after the Outbreak Period ends. For COBRA election purposes, this means if a qualifying beneficiary receives the election notice on or after March 1, 2020, the 60-day initial COBRA election period does not begin until the end of the Outbreak Period. The participant then has another 45 days after that to make the required COBRA premium payments (that still apply back to the date on which previous employer coverage ended). The more time provided to qualified beneficiaries to elect and pay for coverage retroactive to the date coverage is lost, the greater the opportunity to game the system.

As an example, if the National Emergency period is proclaimed to end on May 31, 2020, the “Outbreak Period” will be deemed to end on July 30, 2020.  If an employee was provided a COBRA election notice on April 1, 2020, that person’s initial COBRA election deadline will be extended from the original deadline of May 31, 2020 (the 60th day from date of receipt of COBRA election notice) to a new COBRA election deadline of September 28, 2020 (i.e., 60 days from the end of the Outbreak Period).  That individual then has 45 more days to make the first COBRA premium payment for all coverage back to the original date of coverage loss.

Premium Payment Extension:  Likewise, for individuals already on COBRA, the deadlines to make required monthly premium contributions are extended until 30 days after the end of the Outbreak Period, and the guidance makes clear that an employer or health insurance carrier cannot terminate coverage or reject any claims for nonpayment of premium during this period. Such coverage termination can only occur if the individual fails to make all the required monthly premium contributions at the end of the Outbreak Period.

For example, an individual previously elected COBRA and has been paying monthly COBRA premiums since March 1, 2020. That individual does not pay applicable monthly COBRA premiums for April, May, June, or July. Under the extension guidance, the Plan must allow the individual until 30 days after the end of the Outbreak Period (or, August 29, using the dates from the prior example) to fully pay all prior months of COBRA premiums to maintain the COBRA coverage.  Health plans and insurance carriers are burdened with holding all claims submitted during the extension period to know whether coverage will or won’t be paid as required.

Employer COBRA Notice Period Extension:  The Joint Notice potentially also allows plans, plan administrators, and employers to have extra time to provide the COBRA election notice but the guidance is unclear about how that extension period applies. Until further guidance is issued to add clarity, we recommend that employers, other plan sponsors and administrators continue to send the COBRA election notices based on existing law and rely on the extension only if necessary.

Complications will likely result under this new guidance, and thus we strongly recommend working with COBRA administrators to ensure proper compliance is maintained throughout the Outbreak Period and beyond.

Participant Options for Coverage

Lastly, the DOL updated its ongoing FAQ guidance for participants to know and understand their health insurance and other benefit rights and coverage options before, during, and after the National Emergency period ends. While this guidance is directed to participants and beneficiaries, employers may also find it instructive to ensure they are providing proper coverage alternatives.

More Information

Employers can find a consolidation of almost all the DOL’s recent COVID-19 related guidance about benefits on its website.

 

Screening and Accommodation Issues Related to Returning to Work

By: Robin E. Largent Carothers DiSante & Freudenberger LLP © 2020

Screening For Work

Over the last few weeks, the EEOC has been updating its guidance for employers on handling various COVID-19 issues in the workplace, including on the topics of health screenings and when reasonable accommodation is, and is not, needed.  In some areas, the EEOC’s guidance continues to evolve, particularly on the issue of handling employees who have underlying medical conditions that make them high-risk for COVID-19 complications, but who do not have COVID-19 or COVID-19 symptoms.  This article summarizes the EEOC’s latest guidance on these important return-to-work issues.

Health Screenings

The EEOC has taken the position that temperature screening, symptom and exposure screening, and COVID-testing are all permissible tools for employers to consider when bringing employees back to work.  What if an employee refuses to participate?  According to a recorded webinar provided by the EEOC, the employee can be denied entry into the workplace if an employee refuses to answer screening questions and/or submit to temperature screening.  The EEOC has not directly answered whether an employer may refuse entry to an employee who refuses an actual COVID-19 test (which is more invasive than a health screening questionnaire or a temperature screening).

On the issue of symptom and exposure screening, the EEOC states that employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath.  Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. Employers may not ask employees who are teleworking these questions.  Employers may also ask employees who will be physically entering the workplace whether they have been exposed to anyone with COVID-19 or its symptoms.  Employers should not limit the question to whether the employee has been exposed to any “family members” with COVID-19 or COVID-19 symptoms because GINA generally restricts inquiries into the medical conditions of an employee’s family.

Employers who will conduct screening or testing generally should apply the same requirements to all employees entering the workplace, rather than singling out individual employees for screening.  An exception may be if a specific employee is exhibiting symptoms, in which case an employer may inquire if the employee may have COVID-19 and/or if the employee has been tested.  Employees with symptoms may be sent home.

All medical information obtained from an employee and documented must be maintained in a confidential medical file for the employee.  Importantly, if an employer learns that an employee has Covid-19, the employer must protect the confidentiality of that information.  It is permissible to ask the employee which coworkers with whom he/she has been in physical contact and then to notify those workers that they may have been exposed, but the employer generally should not identify the worker with COVID-19 to others.

The EEOC has not yet addressed the permissibility of COVID-19 antibody testing, whether this may be required of all employees, and whether an employee can be denied entry into the workplace without a test.

Is COVID-19 a Disability?

The EEOC states that “it is not yet clear” whether COVID-19 is or could be a disability.  However, employers may prevent those with COVID-19 from entering the workplace because they would pose a direct threat to employee safety.

Employees Who Are 65 and Older

The EEOC states that employers may NOT exclude employees who are 65 and older from the workplace simply because they are in a higher risk group for serious complications from COVID-19.  The EEOC guidance states:  “The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.”

Relatedly, the EEOC states that employers are not required to grant a request to telework by an employee who is 65 or older simply because the employee is in a high-risk group for COVID-19 complications.  (Of course, the employer may voluntarily permit telework in this circumstance.)

Please note that the EEOC’s guidance on this issue may conflict with some state or local shelter-at-home orders, which direct older employees to shelter at home.  Employers need to consider the applicability of these orders and not just ADA/Title VII considerations when making decisions concerning this issue.  If a shelter-at-home order is in place that states that older individuals (defined varyingly as 60+, 65+, and 70+ depending on jurisdiction) should shelter at home, employers should accommodate telework for these individuals while the order remains in effect.  If telework is not feasible for this employee, the employer needs to consider state and local guidance as well as EEOC guidance in determining whether to prohibit the employee from returning to work (e.g. where the employee wants to return to work even though in a high-risk age group).  This poses age discrimination risk under EEOC guidance.  Unfortunately, the California DFEH has not provided its own guidance on this issue for California employers.

Employees With Underlying Medical Conditions

What are employers’ obligations with respect to accommodating employees who have underlying medical conditions that place them at higher risk for serious COVID-19 complications according to CDC guidance?  This is an issue that the EEOC continues to grapple with, having published and then retracted guidance on this issue just yesterday, with a statement that the guidance is being reviewed and will be published at a later date.  For now, the EEOC states that individuals with underlying medical conditions rendering them high-risk may be entitled to reasonable accommodations under the ADA to prevent “direct threat to self.”  Such an employee should request accommodation and the employer has a duty to engage in an interactive process with the employee to determine reasonable accommodations.  The employer can request supporting medical documentation specifying that the employee has a disability that puts him/her at higher risk for severe complications from COVID-19 (remember that in CA, employers may not require specific identification/diagnosis of the underlying medical condition) and that, as such, an accommodation is needed.  Reasonable accommodations may include telework, provision of additional personal protective equipment or enhanced protective measures (for physical presence in the workplace) such as moving the location of an employee’s workspace to allow greater social distancing or protection, and/or elimination of marginal job duties.

Pregnant Employees

The EEOC guidance states that employers are not required to allow pregnant employees to telework or otherwise provide special accommodations for them due to COVID-19 because pregnancy itself is not a disability.  However, if an employee has a pregnancy-related disability for which the employee needs accommodation, the employer should engage in the interactive process and determine whether reasonable accommodation is appropriate.  Additionally, if the employer allows other employees to work from home as an unofficial accommodation, the employer should not treat pregnant employees differently because that may give rise to a pregnancy discrimination claim.

Employees Living With Someone Who Is in a High-Risk Category

The EEOC states that an employer is not required to provide reasonable accommodation to an employee who is living with someone who has a disability that makes the individual high risk for serious COVID-19 illness.  The ADA only requires reasonable accommodation of an employee’s own disability, not those of a family member.

Although an employer is not required to accommodate employees in this situation, employers may wish to voluntarily do so (e.g. provide an unpaid leave of absence or allow telework for a limited period of time) in order to avoid risk of claims/lawsuits and the associated cost of defense.

Personal Protective Equipment Upon Return to Work

If an employer requires employees to wear personal protective equipment in the workplace (e.g. masks, gloves) and an employee reports that he/she has a disability that prevents the employee from wearing the required protective equipment, the employer may have a duty to reasonably accommodate the employee by providing different protective equipment (e.g. non-latex gloves) or allowing an exception from the requirement, possibly with the imposition of different protective measures for that employee.

What About Undue Hardship?

Under established disability accommodation law, employers have a duty to reasonably accommodate employees with disabilities, unless doing so would be an undue hardship for the employer.  Undue hardship generally means “significant difficulty or expense.”  The undue hardship exception remains the law even in the COVID-19 era.  However, the EEOC acknowledges that accommodations that would not have posed an undue hardship pre-COVID may pose undue hardship now due to financial struggles faced by employers and other limitations on staffing.

In assessing whether a particular accommodation poses “significant difficulty,” an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.  If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

In assessing whether a particular accommodation poses “significant expense,” the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

2020 Heat Illness Standards

23 Apr

April 2020

Temperatures across Southern CA and the San Joaquin Valley will be reaching close to 90 degrees by the end of this week. With temperatures increasing the likelihood of employees falling victim to Heat Illness is high.

Take measures to prevent any employees from being affected by the heat this week and in the upcoming spring and summer months with preventative training.

 

*Monitor Your Local Weather by Phone or News*

California Employers Are Required to Take
These 4 Steps to Prevent Heat Illness:

Training
Train all employees and supervisors about heat illness prevention.
 
Water
Provide enough fresh water so that each employee can drink at least one quart per hour, or four 8-ounce glasses, of water per hour, and encourage them to do so.
Shade @ 80 Degrees
Provide access to shade and encourage employees to take a cool-down rest in the shade for at least five minutes. They should not wait until they feel sick to cool down.
Planning
Develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard. Have copies of written standards on hand where employees are working, including remote locations.
 
CalWorkSafety & HR Helps You With Compliance:

Written Plans, Training and other Compliance Issues.

Learn More: email: dondressler1@hotmail.com

Correction: New Effective Date for Form I-9

17 Apr

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced the revised Employment Eligibility Verification, Form I-9, and published a notice in the Federal Register.

In the initial announcement, USCIS described when employers can no longer use prior versions of Form I-9. USCIS incorrectly described the effective date as being after May 7, 2013.

USCIS published a correction notice in the Federal Register. This notice corrects the error and clarifies that beginning May 7, 2013, employers may no longer use prior versions of the Form I-9.
The new form bears a revision date of 03/08/13.
According to USCIS, “although employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013. Beginning May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form.”