COVID-19: News and Updates |
| Special #47 - June 25, 2020 |
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Free Live Webinar
District Court puts Unions back in Business
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Join GEA and Mel Haas, Jeff Thompson and Jonathan Martin from the Constangy, Brooks, Smith & Prophete,LLP law firm as we discuss unionization issues in the news and activity that is occuring in the Georgia area.
In addition, we will discuss ways to handle political and social unrest issues in a work environment.
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July 1st, 2020 / 11 pm - 12 pm EDT
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| | | Mark Your Calenders
Georgia Employers' Association's 2020 Annual Conference at The Westin Harbor Golf Resort and Spa
Conference will be held on September 27 – 29, 2020
Title: 2020 Vision - A Decade for Change
Please contact us if you have any questions. Registration will start soon. |
| | | Articles and Updates Today
- Governor Brian P. Kemp @GovKemp - Jun 24
- SHRM News Alert: Jobless Claims Hold Steady By Roy Maurer
June 25, 2020
- Link to Webpage: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
- Constangy.com Blog: Miss Mannerly answers employers' Summer 2020 etiquette questions! BY ROBIN SHEA ON 6.18.20
- LEGAL BULLETIN: NLRB moves ahead with new election regs that were not blocked by federal judge Constangy, Smith, Brooks and Prophete,LLP
June 23, 2020
- Human Resources News from USDOL: The U.S. Department of Labor today announced five new opinion letters that provide compliance assistance related to the Fair Labor Standards Act (FLSA).
- ¶47,093 New research reveals negative effects of the pandemic on employees, particularly women and working moms — SURVEY RESULTS, June 25, 2020
from GEA's HR answers now
- ¶47,094 FAQS provide additional guidance on group health plan coverage of COVID-19 testing, telehealth, wellness and more under FFCRA and CARES Act — AGENCY GUIDANCE, June 25, 2020
from GEA’s HR answers now
- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | Link to Webpage: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
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| | | | Jobless Claims Hold Steady By Roy Maurer
June 25, 2020
About 1.48 million U.S. workers filed for new unemployment benefits during the week ending June 20, reflecting continuing layoffs as the country’s economic recovery slowly starts to take shape. First-time claims have fallen for 12 straight weeks since hitting a record 6.8 million in late March. Jobs rebounded in May, and the unemployment rate dropped as employers across the country began reopening and rehiring laid off workers.
The total number of workers continuing to claim unemployment benefits dipped to 19.5 million last week after peaking at nearly 25 million in early May. Another 11 million people continue to claim unemployment under the newly created Pandemic Unemployment Assistance program providing jobless benefits to workers previously not eligible for unemployment. The Department of Labor will publish data on June hiring next week.
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Constangy.com Blog: Miss Mannerly answers employers' Summer 2020 etiquette questions!
BY ROBIN SHEA ON 6.18.20
POSTED IN ADVICE, CORONAVIRUS, FAMILIES FIRST CORONAVIRUS RESPONSE ACT, FIRST AMENDMENT, HR, HUMOR, LABOR RELATIONS, PROTECTED CONCERTED ACTIVITY, TELECOMMUTING, UNEMPLOYMENT
This is not your usual summer, Gentle Reader.
Dear Miss Mannerly: Last week, we had our office picnic, but everyone is still working from home, so we did it on Zoom. About 30 employees were on the call. Everybody chose an appropriate outdoorsy background for their video, and most of us had a few beers. Anyone who wanted to eat could order take-out and send us the bill. As the HR Manager, I thought this would be a very safe way to have a company picnic, given the current circumstances, but apparently not.
"Stanley," who was knocking back boilermakers, began to loosen up and tell some jokes that were dangerously close to the line. We tried to divert the conversation, but he then started on a rant about "Karens," and said this just goes to show why women aren't qualified to hold leadership positions. Miss Manners, our CEO is a woman, and her name is Karen!
Well, as you can imagine, with 29 witnesses, word got back to our CEO. After Stanley recovered from his hangover (which took several days), he apologized and said he'd been suffering from "cabin fever" because he'd been sheltering in place since March. Earlier on the day of the "picnic" he took his laptop and phone out onto his front porch to get some fresh air and sunshine while he worked. A female neighbor came by and yelled that she was going to report him to the authorities for not wearing a face mask and surgical gloves. He said he got angry, went back inside and started drinking, and was two and a half sheets to the wind before our "picnic" even started. He said that his neighbor was the "Karen" he was angry at, not our CEO. And his wife is an Executive VP for the biggest employer in town, so he doesn't have any problem with women in leadership positions.
CEO Karen wants to fire Stanley. In addition to embarrassing her in front of all of our office, she says his comment about "Karens" and women in leadership positions is misogynistic. I'm torn -- I'm a woman, too, and I get what Karen's saying, but Stanley is a good guy who was under a lot of stress and behaved badly this one time. We are all so sick of living in isolation. How should I advise Karen? Kristin, not a Karen
Dear Kristin, not a Karen: Oh, dear. The risks of overconsumption of alcohol (not to mention more potent substances) may be even worse at a "virtual party" than at a live party. The attendees have potentially unlimited supplies at their homes, and they may not have a gentle escort to take them aside and tell them that they've had too much. It is also more likely at a virtual party that an obnoxious offender will be heard by everyone in attendance. At a live party, people tend to congregate in small groups, which may help "flatten the curve" of viral behavior. If the pandemic is still going on by the summer of 2021, you may want to consider dispensing with virtual "social gatherings" that involve alcohol.
As far as whether you should forgive Stanley or advise him that his services are no longer required, that would be up to you and Karen. (Karen the CEO, not "Karen" the neighbor.) Perhaps you could consider issuing a final warning so that he'll understand the gravity of his faux pas, but allow him one more chance to redeem himself?
Dear Miss Mannerly: In March, we unfortunately had to furlough a number of employees without pay. We gave the furloughed employees instructions on how to file for unemployment, and of course, because the furloughs were due to COVID-19, the employees all qualified for the extra $600-a-week benefit.
Business conditions had improved dramatically by May, and we were able to call back all of the furloughed employees. But one employee I'll call "Julia" refused to return, saying she wanted to continue drawing the generous unemployment benefit.
The extra $600 is set to expire in our state on July 26. "Julia" called me this week and said she was looking forward to coming back to work -- on July 27! We have not filled her position, but we no longer want her back. May we politely decline her offer to return even though the position is still vacant? And if so, what should we tell her? In High Dudgeon
Dear In High Dudgeon: Please be assured that Miss Mannerly shares your dudgeon at Julia's discourteous rejection of your generous offer to return to work. No, you are not required to reemploy her now. You should tell her, "I am terribly sorry/not sorry, but we have decided that we would prefer a qualified individual who has a work ethic. We wish you all the best in your future endeavors."
Dear Miss Mannerly: Please settle an argument I am having (in unfailingly civil and correct fashion) with my supervisor. A group of employees is threatening to walk off the job later this summer because of alleged systemic race discrimination in our company. My supervisor says that, if the employees walk off the job, they can and will be fired, and that they will have no legal recourse. I say they cannot be fired because they are engaging in legally protected activity. Who is right? I Beg to Differ
Dear I Beg to Differ: Miss Mannerly begs to differ with your supervisor. You, on the other hand, are unfailingly correct. Section 7 of the National Labor Relations Act gives employees the right, among other things, "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." According to the National Labor Relations Board website, which Miss Mannerly took the liberty of visiting on your behalf, "Activity is 'protected' if it concerns employees' interests as employees." Thus, a walkout to protest systemic race discrimination in the workplace would be protected under the NLRA, provided that the employees do not engage in misconduct.
On the other hand, if the walkout were related to discriminatory conditions in the United States generally, it would probably not be protected by the NLRA because it would not "concern[] employees' interests as employees."
Dear Miss Mannerly: My company is covered by the Families First Coronavirus Response Act. The work at our manufacturing plant cannot be done remotely. Approximately half of our employees have school-age children. Our public and private schools closed in March because of coronavirus, but the scheduled last day of school was June 5.
We closed our plant in March, but we were allowed to reopen after Memorial Day. I have the vapors thinking that half of our workforce will ask to take 12 weeks of FFCRA leave during the summer. I'd like to say "No" on the ground that the schools would have been closed as of June 5 anyway and therefore that the school closing is not due to COVID-19. Can we do that? And can men even get the vapors? Inquiring Minds Want to Know
Dear Inquiring Minds Want to Know: Stock up on smelling salts, Gentle Reader, because you may have to let your employees take paid leave. Although they would not be entitled to school closing leave under the FFCRA because the schools would have been closed anyway, they will be entitled to leave if summer child care is unavailable because of COVID-19. For example, if your Governor orders the little darlings' summer camps to close for coronavirus-related reasons, the parents may need to stay home to care for their children, and they would be entitled to FFCRA leave if they are otherwise eligible.
Oh, and yes, men can indeed get the vapors. They used to think only women got it, but that was an old wives' tale.
Dear Miss Mannerly: Are you really Robin, and are all of these letters made up? Skeptical
Dear Skeptical: You again? Such an uncouth question! Why are you so skeptical? Why can't you trust anybody?
NOTE FROM ROBIN: Our office will be closed tomorrow in honor of Juneteenth, so there will be no blog posts tomorrow. Have a great weekend!
Tags: Coronavirus, Families First Coronavirus Response Act, Karen, National Labor Relations Act, National Labor Relations Board, NLRA, NLRB, Parties, Protected Concerted Activity, Protests, Summer, Unemployment, Zoom
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| LEGAL BULLETIN:
NLRB moves ahead with new election regs that were not blocked by federal judge
Constangy, Smith, Brooks and Prophete,LLP
June 23, 2020 Read online>>
The National Labor Relations Board has announced that it will move forward with parts of its new election regulations that were not blocked by a May 30 order from a federal judge in the District of Columbia.
The election regulations were scheduled to take effect May 31 and would have changed parts of the so-called “quickie election rule” issued by the NLRB under President Obama. Our prior bulletins discussing the new regulations are available here and here. The AFL-CIO sued the current Board, arguing that the new regulations were not issued in compliance with the Administrative Procedure Act’s requirements for notice and an opportunity for public comment, were substantively arbitrary and capricious within the meaning of the APA, and violated the National Labor Relations Act.
On May 30, Judge Ketanji Brown Jackson granted partial summary judgment to the AFL-CIO, ruling that parts of the new regulations were implemented in violation of the requirements of the Administrative Procedure Act.
According to Judge Jackson, the following provisions of the new regulations were invalid:
- Reinstitution of pre-election hearings for litigating unit and eligibility issues.
- Increased time between a petition and an election.
- Increased time for the employer to provide a voter list to the union.
- Restricting election observers to election unit employees.
- Suspending certification of representatives by the NLRB Regional Director while a review of the case was pending.
In response to Judge Jackson's Order, the Board announced on June 1 that it would appeal and that effective May 31 it would implement in full all of the changes that were not affected by the Order. These include the following:
- Hearings will be scheduled at least 14 business days from issuance of the notice of hearing, rather than 8 calendar days under the prior regulations.
- The notice of election will be posted within 5 business days of receipt instead of the prior 2 calendar days.
- The time for the non-petitioning party (usually the employer) to submit a statement of position is increased to 8 business days from service of the notice of hearing instead of the prior 7 calendar days.
- The petitioner (usually the union) must serve a statement of position in response to that of the non-petitioning party.
- Post-hearing briefs will be allowed.
- The discretion of the Regional Director on the timing of a notice of election after the direction of an election has been reinstated.
- Ballots will be impounded while a request for review is pending.
- Bifurcated requests for review are prohibited.
In addition, the regulations that took effect on May 31 made certain changes to formatting for pleadings and other documents, and made changes in terminology, which included defining “days” as “business days.”
The Board’s General Counsel issued a Memorandum on June 1 regarding the new election rules and Judge Jackson’s Order. The Memorandum discussed the rules that took effect on May 31 and the manner in which the changes would affect internal Board procedures.
On June 7, Judge Jackson issued her opinion. A large portion of the opinion focused on whether the Court had jurisdiction to consider the parties’ motions for summary judgment while considering the “Direct-Review Provision” of the National Labor Relations Act. In turning to the merits of the case, Judge Jackson noted that the parties did not dispute that the new regulations were an administrative “rule” for APA purposes. In finding that the regulations were substantive rather than procedural, Judge Jackson said that an “agency rule is essentially presumed to be substantive for the purpose of the notice-and-comment requirement, and that notice-and-comment rulemaking is thus generally required unless a rule satisfies one of the listed exceptions.” (Emphasis in original.) She then said that, by lengthening the time frames for certain actions, the “NLRB is doing much more than merely and ministerially altering deadlines . . . the NLRB has delayed the timeframe within which duties that are owed to the regulated entities will be carried out.” (Emphasis in original.) These duties “have a significant impact on the employees’ ability to mount a successful campaign for unionization, as is their right under the NLRA.” She remanded the rules to the Board for reconsideration.
On June 9, the AFL-CIO filed a Motion for Reconsideration, asking Judge Jackson to find that the new regulations were invalid in their entirety and that portions were arbitrary and capricious under the APA and in violation of the NLRA. The labor organization also asked Judge Jackson not to remand the regulations to the Board. The Board subsequently filed its response in opposition. As of the date of this bulletin, there has been no ruling on the Motion for Reconsideration.
Conclusion
For now, employers confronted with union election petitions are faced with a complex set of rules that are “some new and some old.” The Court’s Order blocks some reform of NLRB election processes that are intended to (1) improve employees’ knowledge of who is eligible to vote and what the bargaining unit will be before casting ballots, (2) allow more time for informed decision-making by employees about representation, and (3) prevent confusion caused by certifications of representatives while an Administrative Law Judge decision and review by the Regional Director are pending. Given the complexity of the procedural framework and so many issues being “up in the air,” employers facing election petitions are encouraged to seek experienced labor counsel.
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Human Resources News from USDOL: The U.S. Department of Labor today announced five new opinion letters that provide compliance assistance related to the Fair Labor Standards Act (FLSA).
Opinion letters are an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.
The opinion letters issued today are:
• FLSA2020-6: Addresses whether salespeople who travel to different locations to sell products using their employer’s mobile assets qualify for the outside sales exemption under FLSA section 13(a)(1);
• FLSA2020-7: Addresses whether an automobile manufacturer’s direct payments to an automobile dealership’s employee, compensating the employee for work done on behalf of the dealership, may count toward the dealership’s minimum wage obligation to the employee under the FLSA;
• FLSA2020-8: Addresses whether salespeople who set up displays and perform demonstrations at various retail locations not owned, operated, or controlled by their employer to sell the employer’s products qualify for the outside sales employee exemption under Section 13(a)(1) of the FLSA;
• FLSA2020-9: Addresses whether emergency-management coordinators employed by a county government qualify for administrative exemptions under Section 13(a)(1) of the FLSA; and
• FLSA2020-10: Addresses the application of the retail or service commission sales exemption under Section 7(i) of the FLSA, where more than half of an employee’s compensation in the relevant representative period ultimately does not consist of commissions.
WHD has issued 61 opinion letters since January 20, 2017.
The public can search for existing opinion letters by keyword, year, topic and a variety of other filters on the WHD’s website. The Department also encourages the public to submit requests for opinion letters to WHD to obtain an opinion or to determine whether existing guidance already addresses their questions. WHD exercises its discretion in determining whether and how it will respond to each request.
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| | | | | ¶47,093 New research reveals negative effects of the pandemic on employees, particularly women and working moms — SURVEY RESULTS,
June 25, 2020 from GEA's HR answers now The coronavirus pandemic has caused adverse effects across all aspects of life, particularly the economy, and women are some of the hardest hit, according to new research conducted by WerkLabs, the insights division of The Mom Project. Women reported they are twice as likely than their male counterparts to leave their employer in a year's time due to their workplace experience during the pandemic in a recent survey of approximately 2,000 professionals across the country.
That number is deeply connected to workplace satisfaction during the pandemic with women scoring an average of 15 points lower than men on all drivers, meaning their work experience was more negative.
The impact of COVID-19 continues to leave many struggling, particularly working moms, who are trying to juggle day-to-day lives and childcare on top of their careers. The economic impact of working moms' coronavirus-related anxiety is estimated at $341 billion. Not only are women and working moms balancing a plethora of responsibilities, they are also fearing for their jobs — approximately 60 percent of the jobs eliminated in the first wave of pandemic-induced layoffs were held by women.
Of the professionals surveyed, more than one-third (38 percent) reported both their work and well-being have been impacted by the coronavirus pandemic. Many participants who volunteered to offer more information on how the pandemic has impacted them and/or their work experience note that leadership believes because social activities are lessened or nonexistent as a result of the pandemic, the employee has more time for work and thus can handle a larger workload—regardless of work-life balance or other responsibilities like childcare.
"Life as we know it has changed, yet my company is trying to act as though everything is status quo," one professional surveyed said. "They're pushing for greater outcomes because we are all working from home, with no consideration for what that means, not to mention the stress of this situation."
Studies and recent research have proven quite the contrary. With the lines between parenthood and career blurred indefinitely as a result of the pandemic and various shelter-in-place and stay-at-home orders and mandates, parents need greater support now more than ever. More than 50 percent of working parents are currently without childcare, and 1 in 5 working parents said either they or their partner are considering leaving the workforce to care for their children.
Full-time working mothers in two-parent households average 22 hours of childcare per week during the current climate while maintaining their jobs. Married men provide an average of 7.2 hours of childcare per week compared to 10.3 hours for married women, among those employed full-time.
"The pandemic has forced an unprecedented rapid shift in workplace culture and it's important we understand and address the positives and negatives of this change because this may be the 'new normal' moving forward, or at least for an indefinite time," said Dr. Pamela Cohen, President of WerkLabs.
Source: WerkLabs.
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| | | | More on Title VII ruling -
Constangy.com Blog: Title VII applies to bias based on LGBT status, Supreme Court says BY ROBIN SHEA ON 6.15.20 POSTED IN DISCRIMINATION, GENDER IDENTITY DISCRIMINATION, SEXUAL ORIENTATION
And what employers need to do . . . assuming they haven't already.
Justice Gorsuch was joined by Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, and Justice Brett Kavanaugh wrote a separate dissent.
The decision resolved three lower court decisions: Bostock v. Clayton County and Altitude Express v. Zarda (U.S. Courts of Appeal for the Eleventh and Second Circuits, respectively, and both cases involving sexual orientation discrimination) and R.G. and G.R. Funeral Homes, Inc. v. EEOC (U.S. Court of Appeals for the Sixth Circuit, and involving gender identity discrimination). A listing of the states in each of the circuits is available here.
The decision resolves an issue that has been debated for years: As of today, employment discrimination based on sexual orientation or gender identity is prohibited by federal law. In addition to applying to employment decisions made in the future, the decision will apply to pending cases as well as employment decisions that have been made within the applicable charge-filing period.
DISCUSSION
The primary rationale for the majority decision was that people who are discriminated against because of their sexual orientation or gender identity would not have been treated disparately “but for” their sex. In other words (for example), a gay man is discriminated because he is a man who is attracted to men. A similarly situated woman who is attracted to men would not be subjected to discrimination. The same rationale applied to gender identity, according to Justice Gorsuch: A biological male who presents as a woman would not be discriminated against “but for” the fact that the individual is a biological male. A similarly situated biological female who presented as a woman would not be subject to discrimination.
Justice Gorsuch analogized to prior Supreme Court decisions, including those finding that sexual harassment was a form of “sex discrimination” even though it is not specifically mentioned in Title VII. Justice Gorsuch also cited an earlier Supreme Court decision involving women who were discriminated against not because they were women per se but because of their status as mothers. The Court found that “motherhood discrimination” violated the Title VII prohibition on sex discrimination.
In addressing concerns expressed during oral argument and elsewhere that the Court’s decision could lead to unisex bathrooms and dressing rooms, or infringe on the religious rights of employers, Justice Gorsuch said that today’s decision did not extend that far and that those issues could be resolved in subsequent decisions.
IMPACT AND STEPS FOR EMPLOYERS
For many employers and in many jurisdictions, the Court’s decision may not have a significant impact. Many state and local laws already prohibit, and many companies have voluntarily adopted policies prohibiting, employment discrimination on these bases. In addition, federal contractors have been required to prohibit LGBT discrimination and harassment since the Obama Administration.
However, for employers who are not federal contractors, who have older internal policies, or who have operations in jurisdictions that do not have these laws, the Court’s decision represents a significant expansion of Title VII as many employers understood it. Employers should take the following steps as soon as possible:
• Review your equal employment opportunity policies to determine whether your company prohibits discrimination or harassment based on sexual orientation and gender identity. If not, amend your policies to include those provisions.
• Promptly communicate the policy updates to all employees.
• In some work environments, there may be a risk of “reverse discrimination” against heterosexual employees. We believe that would also violate Title VII as interpreted by the Supreme Court.
• If your harassment training has not historically addressed harassment based on sexual orientation or gender identity, consider promptly conducting a “mini-session” addressing those subjects, and then include it in your regular training going forward.
• In determining whether to take adverse action against an employee, ensure that your review includes consideration of whether the employee’s sexual orientation or gender identity played any role in the proposed decision.
• Take appropriate steps to avoid discriminating in hiring against applicants based on sexual orientation or gender identity.
Tags: Bostock v. Clayton County, EEOC v. R.G. & G.R. Harris Funeral Homes, Gender Identity, SCOTUS, Sexual Orientation, Supreme Court, Title VII, Title VII Sex Discrimination, Zarda v. Altitude Express
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| | | | ¶47,094 FAQS provide additional guidance on group health plan coverage of COVID-19 testing, telehealth, wellness and more under FFCRA and CARES Act — AGENCY GUIDANCE,
June 25, 2020
from GEA’s HR answers now
The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (Departments) have issued additional frequently asked questions (FAQs) regarding implementation of the Families First Coronavirus Response Act (the FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), and other health coverage issues related to COVID-19.
Group health plans. The FAQs confirm, as provided in prior in FAQs (Part 42, Q1), that the requirements of FFCRA Sec. 6001, regarding coverage for certain items and services related to COVID-19 diagnostic testing, apply to both insured and self-insured group health plans.
Covered tests. Section 6001(a) of the FFCRA requires plans and issuers to provide coverage for an in vitro diagnostic test (as defined in 21 CFR 809.3) for the detection of SARS-CoV-2 or the diagnosis of COVID-19, and the administration of such a test, that:
A. is approved, cleared, or authorized under sections 510(k), 513, 515, or 564 of the Federal Food, Drug, and Cosmetic Act;
B. the developer has requested, or intends to request, emergency use authorization under section 564 of the Federal Food, Drug, and Cosmetic Act unless and until the emergency use authorization request has been denied or the developer of such test does not submit a request under such section within a reasonable timeframe;
C. is developed in and authorized by a state that has notified the Secretary of HHS of its intention to review tests intended to diagnose COVID–19; or
D. other tests that the Secretary of HHS determines appropriate in guidance.
The FAQs indicate that at this time, the FDA has not cleared or approved an in vitro diagnostic test for COVID-19 under the other regulatory pathways outlined in A above.
For purposes of B above, also available on the FDA website is a list of clinical laboratories and commercial manufacturers that have notified FDA that they have validated their own COVID-19 test and are offering the test as outlined in FDA guidance.
For purposes of C above, states and territories may authorize laboratories within that state or territory to develop and perform a test for COVID-19, as outlined in FDA guidance. States and territories that have notified FDA that they choose to use this flexibility are listed at https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-diagnostic-testing-sars-cov-2#offeringtests .
For purposes of D above, no other tests have been specified in guidance by the Secretary of HHS at this time.
Attending health care provider. The Departments clarify that a health care provider need not be “directly” responsible for providing care to the patient to be considered an attending provider, as long as the provider makes an individualized clinical assessment to determine whether the test is medically appropriate for the individual in accordance with current accepted standards of medical practice. Therefore, an attending provider for purposes of FFCRA Sec. 6001 is an individual who is licensed (or otherwise authorized) under applicable law, who is acting within the scope of the provider’s license (or authorization), and who is responsible for providing care to the patient. As stated in FAQs Part 42, a plan, issuer, hospital, or managed care organization is not an attending provider.
At-home testing. The FAQs indicate that COVID-19 tests intended for at-home testing (including tests where the individual performs self-collection of a specimen at home) must be covered, when the test is ordered by an attending health care provider who has determined that the test is medically appropriate for the individual based on current accepted standards of medical practice and the test otherwise meets the statutory criteria. Consistent with FFCRA Sec. 6001, this coverage must be provided without imposing any cost-sharing requirements, prior authorization, or other medical management requirements.
Testing for employment purposes. Testing conducted to screen for general workplace health and safety (such as employee “return to work” programs), for public health surveillance for SARS-CoV-2, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or another health condition is beyond the scope of FFCRA Sec. 6001.
Multiple tests. Plans and issuers are required to cover multiple diagnostic tests for COVID-19. The coverage required for items and services is not limited with respect to the number of diagnostic tests for an individual, provided that the tests are diagnostic and medically appropriate for the individual, as determined by an attending health care provider in accordance with current accepted standards of medical practice.
Facility fee. If a facility fee is charged for a visit that results in an order for or administration of a COVID-19 diagnostic test, the plan or issuer also must cover the facility fee without imposing cost-sharing requirements to the extent the facility fee relates to the furnishing or administration of a COVID-19 test or to the evaluation of an individual to determine the individual’s need for testing. For example, if an individual is treated in the emergency room and the attending provider orders a number of services to determine whether a COVID-19 diagnostic test is appropriate, such as diagnostic test panels for influenza A and B and respiratory syncytial virus, as well as a chest x-ray, and ultimately orders a COVID-19 test, the plan or issuer must cover those related items and services without cost sharing, prior authorization, or other medical management requirements, including any physician fee charged to read the x-ray and any facility fee assessed in relation to those items and services.
Reimbursements. The reimbursement requirements of CARES Act Sec. 3202(a) do not apply to any items and services other than diagnostic testing for COVID-19. CARES Act Sec. 3202(a) describes the amount a plan or issuer must reimburse a provider for COVID-19 testing, but does not address the reimbursement rate for any other items and services.
The FAQs also indicate that the statute generally precludes balance billing for COVID-19 testing. However, it does not preclude balance billing for items and services not subject to CARES Act Sec. 3202(a) although balance billing may be prohibited by applicable state law and other applicable contractual agreements.
Also, regarding reimbursement rates, the FAQs explain that the requirement to reimburse the provider an amount that equals the cash price of a COVID-19 test is contingent upon the provider making public the cash price for the test, as required by CARES Act Sec. 3202(b). If the provider has not complied with this requirement, and the plan or issuer does not have a negotiated rate with the provider, the plan or issuer may seek to negotiate a rate with the provider for the test. However, the CARES Act is silent with respect to the amount to be reimbursed for COVID-19 testing in circumstances where the provider has not made public the cash price for a test and the plan or issuer and the provider cannot agree upon a rate that the provider will accept as payment in full for the test. CARES Act Sec. 3202(b) grants the Secretary of HHS authority to impose civil monetary penalties on any provider of a diagnostic test for COVID-19 that does not comply with the requirement to publicly post the cash price for the COVID-19 diagnostic test on the provider’s website and has not completed a corrective action plan, in an amount not to exceed $300 per day that the violation is ongoing.
Revoking plan amendments. In FAQs Part 42, Q9 and Q14, the Departments announced temporary enforcement relief that generally applies with respect to changes made to increase benefits, or reduce or eliminate cost-sharing requirements, for the diagnosis and/or treatment of COVID-19 and telehealth or other remote care services during the public health emergency or national emergency declaration period related to COVID-19. If a plan or issuer reverses these changes once the COVID-19 public health emergency or national emergency declaration is no longer in effect, the Departments will consider a plan or issuer to have satisfied its obligation to provide advance notice of a material modification under PHSA Sec. 2715(d)(4) and its implementing regulations with respect to a participant, beneficiary, or enrollee if the plan or issuer had previously notified the participant, beneficiary, or enrollee of the general duration of the additional benefits coverage or reduced cost sharing (such as, that the increased coverage applies only during the COVID-19 public health emergency) or notifies the participant, beneficiary, or enrollee of the general duration of the additional benefits coverage or reduced cost sharing within a reasonable timeframe in advance of the reversal of the changes.
Telehealth and remote care services. A large employer may offer coverage only for telehealth and other remote care services to employees who are not eligible for any other group health plan offered by the employer. In light of the critical need to minimize the risk of exposure to and community spread of SARS-CoV-2, for the duration of any plan year beginning before the end of the public health emergency related to COVID-19, the Departments are providing relief for a group health plan (and health insurance coverage offered in connection with a group health plan) that solely provides benefits for telehealth or other remote care services from the group market reforms with certain exceptions. This relief is limited to telehealth and other remote care service arrangements that are sponsored by a large employer and that are offered only to employees (or their dependents) who are not eligible for coverage under any other group health plan offered by that employer.
Under this temporary relief, the Departments will continue to apply otherwise applicable federal non-discrimination standards. The specified market reforms that these arrangements must continue to satisfy are the following provisions of the PHSA (and corresponding provisions of ERISA and the Code):
• Section 2704 (relating to prohibition of pre-existing condition exclusions or other discrimination based on health status);
• Section 2705 (relating to prohibition of discrimination against individual participants and beneficiaries based on health status);
• Section 2712 (relating to prohibition of rescissions); and
• Section 2726 (relating to parity in mental health or substance use disorder benefits).
Mental health benefits. The FAQs also provide that when performing the “substantially all” and “predominant” tests for financial requirements and quantitative treatment limitations under the MHPAEA regulations, plans and issuers may disregard benefits for items and services required to be covered without cost sharing under the FFCRA.
Wellness programs. Plans and issuers are permitted to waive a standard (including a reasonable alternative standard) for obtaining a reward under a health-contingent wellness program. However, to the extent the plan or issuer waives a wellness program standard as a result of the COVID-19 public health emergency, the waiver must be offered to all similarly situated individuals, as described in the implementing regulations.
SOURCE:FAQs About Families First Coronavirus Response Act and Coronavirus, Aid, Relief, and Economic Security Act Implementation, Part 43, June 23, 2020.
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| | | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
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Georgia Employers' Association |
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