President’s Path Out of the Pandemic Adds Hurdles for Employers

On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (the Plan). The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.

Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes:

• Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis;
• A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site;
• A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and
• Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.

The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.”

The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things.

While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary.   It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations.

CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October.

Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality and privacy issues. Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations.

Stay tuned as we dive into the Plan and corresponding guidance documents, as well as await further information from federal agencies responsible for complying with the Plan and its directives. 

Affordable Percentage Will Shrink for Employer Health Coverage in 2022

New Guidance Delays Some Key CAA and Other Health Benefit Effective Dates

New regulatory guidance from three federal agencies that enforce private-sector benefits laws will make employers’ daunting 2021 health benefit to-do lists slightly—but only slightly—more manageable heading into 2022.

Most importantly, the frequently asked questions (FAQ) guidance delays several of the most challenging 2021 and 2022 compliance requirements under the Consolidated Appropriations Act, 2021 (CAA) and the Patient Protection and Affordable Care Act (ACA): so-called “advanced explanations of benefits” (EOBs) providing good-faith estimates of the out-of-pocket costs for scheduled medical services; a “price comparison tool” to enable participants to compare cost-sharing amounts for specific network providers; extensive drug cost information that was to have been reported to the federal regulators in December 2021; and public pricing disclosures related to in-network rates, out-of-network allowed costs, and prescription drug prices.

The FAQ guidance, issued August 20, 2021, by the U.S. Department of Labor, U.S. Department of Health and Human Services, and U.S. Department of the Treasury, also provides some relief or useful clarifications related to other key 2021 health benefit compliance items for employers, including gag clauses, identification cards, continuity-of-care requirements, and provider directories.

The FAQ guidance neither delays nor provides other relief related to the new surprise medical billing requirements under the No Surprises Act, which was enacted as part of the CAA and is set to take effect January 1, 2022, or the Mental Health Parity and Addiction Equity Act “comparative analysis” required by the CAA, which is already in effect.

Here is a summary of the key employer takeaways in the new FAQ guidance.

Advanced EOBs

Under the No Surprises Act, plans are required to provide good-faith estimates of expected provider charges for a specific scheduled service, along with good-faith estimates of the cost sharing that would apply to a participant, and the amount already incurred toward any financial responsibility limits. This was initially set to take effect January 1, 2022, but the guidance indicates that the agencies will defer enforcement until regulations are issued on these plan disclosures and the disclosures required by medical providers. (Question 6)

Price Comparison Tool and Public Price Disclosures

Under the No Surprises Act, plans are required to offer online tools and phone support to enable participants to compare cost-sharing amounts for specific network providers in a specific region. Separately, under the ACA, plans are required to offer three “machine-readable files” on a public website covering in-network rates, out-of-network allowable amounts, and prescription drug prices. Both the No Surprises Act and ACA requirements were set to take effect on January 1, 2022. The guidance delays the effective date of the No Surprises Act requirements to January 1, 2023, and the ACA in-network and out-of-network requirements to July 1, 2022. The ACA prescription drug requirement is delayed until the agencies issue regulations on the matter. (Questions 1-3)

Drug Cost Reporting

The CAA requires employer plans to report very detailed prescription drug cost information to the agencies, including the 50 most commonly covered drugs per plan, the 50 most expensive drugs per plan, and the total health spending for each plan broken out into specific categories. The initial reports were to be provided to the agencies by December 27, 2021, and then by June 1, 2022. The agencies will defer enforcement related to the 2021 and 2022 reports until they issue further guidance, though the agencies “strongly encourage plans” to get ready to report 2020 and 2021 plan year data no later than December 27, 2022. (Question 12)

Gag Clauses

Under the CAA, plans cannot enter into network or other agreements that would prevent them from making available provider-specific cost or quality-of-care information to providers or participants, electronically accessing de-identified claims and encounter information for each participant (consistent with privacy laws), or sharing either of those types of information with business associates. Plans have to attest to the agencies each year that they have no such clauses in their agreements. This requirement took effect on enactment of the CAA on December 27, 2020, and is not changed by the FAQ guidance. The agencies have indicated that additional guidance is forthcoming on how plans will attest to their compliance. (Question 7)

Insurance Cards

Under the No Surprises Act, plans have to update physical or electronic insurance cards to include network and out-of-network deductibles and out-of-pocket limits and consumer assistance contact information. This is set to take effect on January 1, 2022, a date unchanged by the FAQ guidance. The guidance does clarify, though, that the agencies will consider both data actually on the cards and data “made available through information that is provided on the ID card.” (Question 4)

Continuity of Care

Under the No Surprises Act, when a provider or network contract is terminated, plans have to take steps to protect hospitalized or other continuing care patients. This requirement will take effect on January 1, 2022. The guidance clarifies that the agencies intend to issue formal regulations on this requirement, but will not do so before the effective date. Until such regulations take effect, plans will be held to a good-faith compliance standard. (Question 10)

Provider Directories

Under the No Surprises Act, plans are required to take several steps to improve provider directories, such as updating them at least every 90 days, and more promptly notifying participants about whether a particular provider is in the network. These requirements will take effect on January 1, 2022, and the guidance does not change that. The agencies do indicate that they intend to issue formal regulations in the future, and may also have specific additional guidance on required disclosure of balance billing information. (Questions 8 and 9)

FL Minimum Wage Increase in September 2021

Over the next six years, Florida’s minimum wage rate will increase gradually to $15 an hour.

On November 3, 2020, over 60 percent of Floridian voters approved Amendment 2, which increases the minimum wage and amends Florida’s Constitution.

Under the new mandate, Florida’s minimum wage rate (currently, $8.56) will increase to $10 an hour in September 2021. The minimum wage then will increase by $1 each year until it reaches $15 an hour in 2026. The minimum wage rate applies to all public and private sector employers, regardless of size or number of employees.

Employers must use the following hourly minimum wage schedule for non-tipped employees:

• Through December 31, 2020 – $8.56
• January 1, 2021 – $8.65
• September 30, 2021 – $10.00
• September 30, 2022 – $11.00
• September 30, 2023 – $12.00
• September 30, 2024 – $13.00
• September 30, 2025 – $14.00
• September 30, 2026 – $15.00

Beginning on September 30, 2027, the minimum wage rate will be adjusted annually by the Florida Department of Economic Opportunity based on changes to the Consumer Price Index for Urban Wage Earners and Clerical Workers.

Amendment 2 does not change the allowable tip credit for tipped employees meeting the eligibility requirements under the Fair Labor Standards Act. Florida employers may continue to take a tip credit of up to $3.02 per hour for properly classified tipped employees. The minimum cash wage rate for eligible tipped employees will increase as follows:

• Through December 31, 2020 – $5.54 per hour plus tips
• January 1, 2021 – $5.63 per hour plus tips
• September 30, 2021 – $6.98 per hour plus tips
• September 30, 2022 – $7.98 per hour plus tips
• September 30, 2023 – $8.98 per hour plus tips
• September 30, 2024 – $9.98 per hour plus tips
• September 30, 2025 – $10.98 per hour plus tips
• September 30, 2026 – $11.98 per hour plus tips

Florida is only the eighth state in the country (and the first in the South) to raise its minimum wage to $15 an hour, joining California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, and New York. Florida is the first state to raise the minimum wage as high as $15 an hour by a citizens’ initiative ballot measure. Similar increases were introduced during the Florida legislative session in recent years, but the measure never passed.

Same Old Situation for Employers? Top 10 Takeaways as OSHA Updates COVID-19 Workplace Guidance

In response to the surge of delta variant cases across the country, federal workplace safety officials just issued updated guidance to help employers and workers identify current COVID-19 risks for unvaccinated or otherwise at-risk workers – making many employers feel like they are in the same ol’ situation they were in just a few months ago. The Occupational Safety and Health Administration’s (OSHA’s) updated guidance, released on August 13, revises its June 2021 guidance applicable to those not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for healthcare workplaces and adheres to updated Centers for Disease Control and Prevention (CDC) coronavirus guidance issued last month. What are the top 10 takeaways employers need to know about with respect to OSHA’s most recent guidance?

OSHA’s Updated Recommendations

As most are aware by now, the CDC updated its recommendations for fully vaccinated individuals to reduce their risk of becoming infected with the delta variant and potentially spreading it to others. The CDC’s guidance addresses mask wearing in public indoor settings; choosing to wear masks regardless of the potential level of transmission (particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated); and revised testing recommendations for known exposures.

In its revised guidance, OSHA has essentially adopted analogous recommendations for employers. To follow this guidance, you should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. In light of OSHA’s recent guidance, it is clear the agency is focused at facilitating higher vaccination rates via imposing new standards on employers.

Top 10 Employer Takeaways

Here are the top 10 takeaways from OSHA’s new guidance.

1. Employers should implement methods to facilitate and encourage employee vaccination. OSHA recommends providing employees with paid time off to get vaccinated and paid time off to recover from any ill side effects of the vaccine. Employers are also encouraged to work with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. Finally, OSHA suggests employers consider adopting policies requiring workers to get vaccinated or undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
2. Employers should instruct infected workers, unvaccinated workers who have had close contact with a positive COVID-19 case, and all workers with COVID-19 symptoms to stay home from work. As recommended by the CDC, fully vaccinated individuals who have a known COVID-19 exposure should get tested three to five days after the exposure event and wear a mask in public indoor settings for 14 days (or until they receive a negative test result). Individuals who are not fully vaccinated should be tested immediately, and if negative, tested again in five to seven days after their last exposure (or immediately if symptoms develop). OSHA expects all absentee policies to be non-punitive and that employers will promptly eliminate policies that might encourage workers to come to work sick.
3. Employers should implement physical distancing in all common areas where unvaccinated and otherwise at-risk workers may be present. OSHA believes a “key way” to protect workers is to require physical distancing in the workplace – generally this means at least six feet. However, as workplace conditions may require employees to work close to one another and/or customers for extended periods of time, employers may consider limiting the number of unvaccinated or otherwise at-risk employees in one place at any given time. For example, employers might implement flexible schedules, allow remote/telework, rotate/stagger shifts, deliver services remotely (e.g., phone, video, or web), etc.

   At sites where unvaccinated or otherwise at-risk workers cannot physically distance, transparent shields (or other like barriers) may be considered. These types of barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets. Any openings should be placed at the bottom, made as small as possible, and the height should consider the employee’s posture while working (i.e., sitting or standing). Ventilation, fire safety, and other safety considerations should be incorporated when designing and installing barriers.

4. Unless their work task requires a respirator or other PPE, employers should provide workers no-cost face coverings or surgical masks as appropriate. OSHA’s guidance mirrors that of the CDC by recommending even fully vaccinated individuals wear masks in public indoor settings, noting that fully vaccinated people may desire to wear masks in public indoor settings regardless of community level of transmission. OSHA reiterates that workers should wear a face covering that covers both the nose and mouth to contain the wearer’s respiratory droplets and to help protect others and potentially themselves.

   Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Workers who are outdoors may opt not to wear face coverings unless they are at risk. Regardless, employers should support employees who continue to wear a face covering, especially when working closely with others. If an employer determines PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE per the relevant OSHA PPE standards.

5. Employers should educate and train workers on their COVID-19 policies and procedures using accessible formats and in languages they understand. Employers should train managers on how to implement their COVID-19 policies. These policies should be communicated clearly, frequently, and using multiple methods to promote a safe and healthy workplace. OSHA suggests that communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. 

   Training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, hand hygiene, and workplace policies and procedures to protect workers from COVID-19 hazards. In addition, employers should implement a means of tracking which (and when) workers receive this information.

6. Employers should suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, such as retail establishments. All customers, visitors, or guests should wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring individuals wear face coverings, even if no longer required by your jurisdiction.

7. Employers should maintain workplace ventilation systems. As COVID-19 spreads more easily indoors, improving and maintaining ventilation systems is a key engineering control. Such a maintenance program can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air (and consequently reduce the risk of transmission to unvaccinated and otherwise at-risk workers in particular). A well-maintained ventilation system is essential in any indoor workplace setting, and when working properly, ventilation is a primary control measure to limit the spread of COVID-19.

   Specific recommendations can be located within the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations and Industrial Settings during the COVID-19 Pandemic. Key measures include ensuring HVAC systems are operating in accordance with the manufacturer’s specifications, conducting regularly scheduled inspections and maintenance, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible. Buildings without HVAC systems should maximize natural ventilation by opening windows or doors, when conditions allow (if that does not pose a safety risk) and consider using portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

8. Employers should perform routine cleaning and disinfection. This is especially important if someone who has been in the facility within 24 hours is suspected of having COVID-19 or is a confirmed COVID-19 case. In those situations, OSHA recommends following the CDC’s cleaning and disinfection recommendations.

9. Employers must record and report workplace COVID-19 infections and deaths: Under OSHA’s recordkeeping standard, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Likewise, employers must follow the requirements when reporting work-related COVID-19 fatalities and hospitalizations.

10. Employers should implement protections from retaliation and set up anonymous methods for workers to raise concerns about COVID-19-related hazards. Employers should ensure workers know whom to contact with questions and/or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities. This could be accomplished by using an employee hotline or other method for workers to voice concerns anonymously.

Conclusion

The guidance also reminds employers to follow all other applicable mandatory OSHA standards. These mandatory OSHA standards include requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.

Smaller Employers Beware: IRS Doesn’t Want Paper ACA Filings Next Year (or Paper W-2 and Similar Filings)

The IRS has proposed two significant changes to electronic filing requirements for various information returns including not just the Forms 1094-C and 1095-C filings required of many employers by the Affordable Care Act (ACA), but common payee statements like Forms W-2 and 1099. If the proposed changes are finalized – we expect that to happen by this autumn – all but the very smallest employers will be required to file these forms electronically for filing due dates falling in 2022 and beyond. Employers wishing to engage an ACA reporting and/or payroll vendor to comply with electronic filings requirements will need to begin making changes to comply.

Background: ACA filings and electronic media

Under current e-filing rules, an employer subject to the ACA’s employer mandate is not required to file its Forms 1094-C and 1095-C electronically unless the employer is submitting at least 250 of the forms to the IRS. When determining whether the employer crosses the 250-return threshold, the employer separately counts the different returns it files, such as its Forms 1094-C and 1095-C, and even payee statements like Forms W-2, 1099, etc.

For example, an employer with 150 ACA full-time employees and 50 part-time employees over the course of the calendar year may be required to file 200 Forms W-2, 150 Forms 1095-C and one Form 1094-C, but because the employer is not filing at least 250 of the same form, the employer is not required to file any of the forms electronically.

The proposed rule: Nearly every employer would be in the e-filing boat

The new IRS proposal would drop the 250-return threshold to 100 for returns due in 2022 (and to 10 for returns due in 2023 or later years), and, most significantly, would require employers to aggregate the number of different returns it files when determining whether the 250-return threshold is reached. In the example above, for returns due in 2022, the employer would aggregate the 200 Forms W-2, 150 Forms 1095-C and the one Form 1094-C, for a total of 351 returns. Because the aggregated total of returns due from the employer is at least 250, all the returns must be filed electronically.

Lining up an ACA (and perhaps payroll) reporting vendor

Many employers that until now have filed their Forms 1094-C/1095-C, W-2, 1099, etc. on paper will be required – assuming the IRS shortly finalizes the newly proposed regulations – to submit those forms to the IRS electronically for filings due in 2022. Almost all employers will be required to e-file by 2023. For employers wishing to engage a vendor to conduct electronic filing – particularly those for whom the e-filing status quo will change next year – the search for an e-filing vendor should begin. 

CDC Reverses Course and Recommends Fully Vaccinated Individuals in “Substantial” and “High” Transmission Areas Continue to Wear Masks

The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area.  So what does this mean for employers and your masking policies?

What Has Changed and Why?

The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.

Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.

What About OSHA’s Emergency Temporary Standard?

Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.

According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.  

Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities. 

What Should Employers Do?

The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding  on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.

If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.

If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood. 

CDC Issues New Back-to-School Guidance with Emphasis on In-Person Learning

The Centers for Disease Control and Prevention (CDC) just substantially relaxed its pandemic guidance for K-12 schools. While certain restrictions remain and the guidance may continue to evolve in the coming months, especially if the COVID-19 vaccine becomes available for younger children, this new guidance provides schools with more information as they plan for the 2021-2022 school year. What do you need to know about this July 9th update?

What Has Changed?

The new CDC guidance has three important changes. First, it clarifies that fully vaccinated employees, staff, and students do not need to wear masks or facial coverings when indoors. Also, masks are not recommended for outdoor use unless your school is in an area of “substantial to high transmission,” and individuals are in crowded settings or engaging in activities that involve “sustained close contact” with others who are not fully vaccinated.

Second, the CDC’s guidance has a strong emphasis on full re-opening with in-person learning, regardless of whether all the prevention strategies can be implemented at your school. For example, the new guidance continues to recommend that students be spaced at least three feet apart, but with a new caveat: If maintaining physical distancing would prevent schools from fully reopening for in-person learning, schools could instead rely on a combination of other strategies like masking, testing, and improved ventilation.

Finally, the CDC strongly urges schools to promote vaccination among eligible students as well as teachers, staff, and household members, which it describes as “one of the most critical strategies to help schools safely resume full operations.”

What Has Not Changed?

The CDC continues to recommend prevention strategies, such as:

• consistent and correct mask use where appropriate, particularly for unvaccinated individuals;
• screening testing;
• enhanced ventilation;
• promoting handwashing and respiratory etiquette;
• staying home when sick and getting tested;
• contact tracing in combination with isolation and quarantine; and
• frequent cleaning and disinfection.

What Do These Changes Mean for Schools?

Of course, children under 12 are not yet eligible for vaccination so elementary students and some middle school students will need to continue to wear masks indoors. Even for students ages 12 and older, schools wanting to go mask-less will have to determine the best way to go about it. Because the masking guidance only applies to fully vaccinated individuals, your school may have an inconsistent patchwork of some employees and students wearing masks while others are not. These inconsistencies may be disruptive, difficult to enforce, and may unintentionally single out those who do not get the vaccine, including for medical or religious reasons.

The CDC seems to be encouraging schools to collect information on vaccine status before allowing employees and students to go mask-less inside. The CDC guidance includes a description of times when school administrators may want to require the universal wearing of masks and this includes when the school lacks a system to monitor the vaccine status of employees and students or if there is difficulty monitoring and enforcing mask policies that are not universal. Therefore, in states where there is no local restriction, discussed more below, schools that want to allow vaccinated employees and students to go mask-less should implement a process to collect information on vaccination status, track that information, and use it to inform their masking and distancing practices.

Local Laws

All schools also have to consider local and state law implications before implementing new policies on vaccinations and masks. For example, Florida private businesses, including schools, are free to establish their own mask policies. However, under the so-called vaccine passport law, Florida schools are prohibited from requiring vaccination documentation for students and parents to enter the campus or receive a service from the school. Nothing in the law prohibits schools from asking that parents and students provide proof of vaccination on a voluntary basis if they want to be mask-less on campus. Some Florida schools, however, are choosing to simply rely on parents’ and students’ representations that they are vaccinated or to ask them to sign an attestation certifying that they have been fully vaccinated because schools are not comfortable asking families for documentary proof of vaccination.

In Texas, meanwhile, while Governor Greg Abbott issued an executive order prohibiting the use of masks in public schools, private schools are also free to implement masking policies at their own discretion. Texas private schools should consider seeking proof of vaccination if they intend to allow vaccinated students and employees to go mask-less. Keep in mind, however, that the Texas legislature passed a bill prohibiting private schools from requiring students be vaccinated. Therefore, requiring vaccinations of all age-appropriate students is not a solution to the inevitable monitoring and enforcement challenges associated with a partially masked student body.

Finally, despite the CDC guidance, California currently still requires students and faculty to wear masks in indoor settings regardless of vaccination status. Schools should expect more guidance from the California Department of Public Health in the next several days.

Conclusion

As schools prepare for the new normal, you should keep up to date with the rapidly changing developments at the federal, state and local level. We will continue to monitor the developing COVID-19 situation and provide updates as appropriate. 

No More Surprises? New Rule on Surprise Medical Bills

The U.S. Departments of Health and Human Services, Labor, and Treasury, and the Office of Personnel Management have issued “Requirements Related to Surprise Billing; Part I,” an interim final rule to implement the No Surprises Act passed late last year as part of the Consolidated Appropriations Act, 2021. The No Surprises Act, which generally becomes effective January 1, 2022, minimizes the amounts that participants in a group health plan must pay for medical care received from physicians or other healthcare providers who are, unknown to the participant, outside of the plan’s network; this is referred to as “surprise billing.” In addition, the No Surprises Act limits situations in which out-of-network providers can bill directly for amounts not paid for by the group health plan; this is referred to as “balance billing.”

The rule implements portions of the No Surprises Act by placing restrictions on group health plans, as well as health insurance issuers, physicians, and other healthcare providers. The rule requires plans to treat certain services from out-of-network providers and facilities as in-network in applying cost-sharing, such as deductibles and co-insurance. Thus, the participant will have the same out-of-pockets costs for such services regardless of whether the facility or provider has a contract with the plan. Similarly, the rule forbids out-of-network providers from billing participants for amounts in excess of the participant’s in-network cost-sharing responsibility, subject to the participant’s ability to waive this protection in some situations.

Specifically, among other provisions, the rule implements certain consumer protection provisions of the No Surprises Act as follows:

• Bans high out-of-network cost-sharing for emergency services. A group health plan must treat emergency services provided by out-of-network providers or facilities as in-network for applying cost-sharing requirements. Out-of-network providers and facilities are prohibited from billing a participant for amounts more than the participant’s in-network cost-sharing responsibility, and this prohibition generally cannot be waived by a participant. However, such providers and facilities may balance bill participants for post-stabilization services if they provide notice to the participant and obtain his or her consent to be balance billed before such services are provided.

• Bans out-of-network charges for ancillary care at an in-network hospital or ambulatory surgery center. If a hospital or ambulatory surgery center is in-network, a group health plan must treat anesthesia, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalist, or intensivist services as in-network when applying cost-sharing requirements. Such providers are prohibited from billing a participant for amounts more than the participant’s in-network cost-sharing responsibility, and this prohibition cannot be waived by a participant.

• Bans other out-of-network charges without advance notice. If a hospital or ambulatory surgery center is in-network and services other than those described above are provided, a group health plan must still treat the services as in-network when applying cost-sharing requirements. However, the out-of-network providers may balance bill the participant for these services if they provide notice to the participant and obtain his or her consent to be balance billed before the services are provided.

The issuance of the rule is accompanied by fact sheets for health plans and issuers, as well as consumers. The Department of Labor has also issued instructions and a model notice that plans and issuers could use to meet requirements to make certain information publicly available, post on a public website, and include in each explanation of benefits.

The rule will take effect for healthcare providers and facilities on January 1, 2022. For group health plans, health insurance issuers, and Federal Employees Health Benefits Program carriers, the provisions will take effect for plan, policy, or contract years beginning on or after January 1, 2022. Comments on the rule are due within 60 days after the rule is published in the Federal Register. It is likely that this rule will generate significant comments. The rule may also change in response to those comments.

The Feds Are Coming, Is Your Business Ready? Part 4: Unions

I understand that your first thought may be that this article has nothing to do with your business and you can skip it. 

Please read before you disregard.  Your employees will soon receive a union message!  You have a short amount of time to decide if that message comes from your organization or if you will wait and your employees will learn all they need to know about unions from the Federal Task Force, whose very existence is to encourage unionizing. 

I understand the desire to avoid the topic of unions as in my thirty years of working as an Employer Advocate, I’ve skimmed over union articles, and barely skimmed at that.  Unions have never been a real issue for most Florida employers, unless you are Disney or a public service entity/municipality.  Yes, we must work within the regulations and rules around Section 7 rights (protected concerted activity) of the National Labor Relations Act, but unions have never been a concern.  Nationally, there has been a steady decline in union activity as the rights of employees have continued to expand.  What is the threat now? Why does it matter to you?

Biden vowed to be “the most pro-union president you’ve ever seen” and he appears to be living up to that promise.  His first order of business, day one in office, was to fire (and replace) the sitting General Counsel of the NLRB, even though his term was set to expire November 2021. This is the first time in history a President has fired the sitting General Counsel! 

Biden nominated Marty Walsh to be our Secretary of Labor.  Mr. Walsh has been confirmed by the Senate and is now the first union member in nearly 50 years to run the Department of Labor. 

Biden’s most recent act to abide by the union promise was an Executive Order to create a task force to encourage worker organizing and collective bargaining.

VP Harris has been tapped to chair the Federal Task Force.  The task force has no more than 180 days from the Executive Order to submit recommendations for actions to promote worker organizing and to increase union density. 

Most business owners and HR professionals have no history in dealing with a partial workforce rebellion.  This could happen in individual companies or it could be a wider industry movement in a city or region.  Again, most of us have no history in dealing with unions or collective bargaining, so where do you start?  What are you supposed to do and how? 

You may wish to start with training your managers.  They typically have the pulse of your employees and will be the first to know if organizing starts and will likely be the ones your employees go to with questions.  Mostly importantly, they need to know how to report, monitor and legally respond to employees.  A manager saying “They will shut this company down, before allowing a union in” is not an appropriate response and could cause you much bigger legal problems. 

Next, you will want to talk with your employees.  In our current environment, they need to be communicated with regularly, regardless of union activity.  It seems, we have spent most of the past year with social media, news outlets and the government focused on dividing the country and our citizens.  We’ve been divided by our race, gender, religion, political party, mask and/or COVID vaccine status, views on Second Amendment rights, sexual preference, or how you identify.  The media has provided you with a multitude of options to cause division in your community.  Wouldn’t it be nice if employees didn’t have to endure division at their place of employment? 

Communicating with employees to remind them that they do not need an intermediary to speak with their manager or the company owner is a must!  You want to stress that you have good open communication between managers and employees.  Remind employees that you offer competitive wages and benefits.  If any of this is not true, now is the time to fix it as it will be good for your company as a whole, even if the taskforce doesn’t target your industry.  Union organizers will use any real (or imagined) crack in your company’s framework to convince employees of how much better they would be with a union on their side.

You may also consider modernizing your policies in regard to your position on unions, while stressing your company’s open door policy as well as a no solicitation policy.   

Remember your people are the reason your company exists, and they need to be reminded and shown that they are valued and appreciated. 

Being proactive now is one of the keys to your success when it comes to preventing a union from walking through your front door.

Let us know if you would like any help with implementing a Union Avoidance management training program. With AAG on your side, we will help to ensure your team is prepared to answer employee questions.