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| | | - Constangy.com News & Analysis; State Department issues guidance on national interest waivers
7.28.20
- ¶47,152 WHD continues crackdown on FFCRA compliance; collects $98K-plus in unpaid wages — FEDERAL NEWS (Jul. 27, 2020)
- ¶47,154 Rule governing short-term limited duration insurance withstands challenge — FEDERAL NEWS (Jul. 27, 2020)
- ¶20,301D States challenge rule that would weaken civil rights protections under provision of ACA — MULTISTATE — Discrimination (Jul. 27, 2020)By Sheryl Allenson, J.D.
- Constangy.com Blog: Happy 30th anniversary to the ADA BY ROBIN SHEA ON 7.24.20
- HRDive News BRIEF: New Prime trucking company settles 2 misclassification suits for $28M AUTHOR Lisa Burden
PUBLISHED July 28, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | Constangy.com News & Analysis: State Department issues guidance on national interest waivers
The U.S. Department of State has issued some preliminary guidance on the application of the national interest waiver to foreign nationals from countries that are subject to a COVID-19-related travel ban.
Since late January, the Administration has issued seven proclamations directly or indirectly related to the COVID-19 pandemic. Five of the proclamations generally prohibited entry into the United States by persons who were in COVID-19 “hot spots” within 14 days of their planned entry into the United States. The affected countries are the People’s Republic of China, Iran, the United Kingdom, Ireland, Brazil, and the 26 Schengen nations (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).
The Administration issued two additional proclamations that barred the entry of immigrants (Proclamation 10014) and nonimmigrant holders of H-1B, H-2B, certain J-1, and L-1 visas (Proclamation 10052).
We have reported on these proclamations here, here, and here.
All of these proclamations make exceptions for foreign nationals whose admission to the United States is in the national interest. Thus, the new guidance on the national interest exemption may provide relief to some individuals covered by the proclamations.
The proclamations delegate to the Secretary of State and the Secretary of Homeland Security, in consultation with each other (and the Secretary of Labor with respect to Proclamation 10052), the responsibility to determine who is eligible for a national interest waiver. Some of the proclamations say that the national interest waiver would apply to an individual coming to the United States at the invitation of the government -- either in connection with containment or mitigation of COVID-19, or to further important law enforcement objectives.
The new guidance
First, the guidance says that students from the Schengen area and the United Kingdom and Ireland who have valid F-1 and M-1 visas, and their dependents, may travel to the United States while the health-related proclamations are in effect. They “do not need to seek a national interest exception to travel,” according to the State Department. It appears that the State Department has made a blanket determination that these students (and their dependents) qualify for national interest waivers.
Moreover, national interest waivers continue to be granted “for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, health response, and national security.” Although this language does not mention economic considerations as part of the national interest exception, recent indications from the State Department and our firm’s experience lead us to believe that economic interests also can be the basis for a national interest waiver.
Regarding national interest waivers for nonimmigrant categories in Proclamation 10052, the guidance provides examples of situations where the waiver may apply. Our experience has been that a wide range of situations can be presented to support a waiver request that the individual is performing essential services that benefit the national interest.
For H-1B visa holders, the guidance says that waivers can apply in these situations:
- “For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).”
- “Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.”
For H-2B visa holders, the guidance says that waivers are available in this situation:
- “Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.”
For J-1 exchange visa holders, waivers are available in these situations:
- “Travel to provide care for a minor U.S. citizen, [lawful permanent resident], or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language). Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.”
- “Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.”
- “Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United State combat COVID-19.”
- “An exchange program conducted pursuant to [a Memorandum of Understanding], Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.”
- “Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with ‘G-3’ on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.”
- “Specialized Teachers in Accredited Educational Institutions with a program number beginning with ‘G-5’ on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States. A ‘specialized teacher’ applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.”
- “Critical foreign policy objectives: This only includes programs where an exchange visitor [sic] participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.”
For L-1 visa holders, waivers are available in this situation:
- “Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.”
For holders of H-4, L-2, and J-2 visas waivers are available as follows:
- “National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who is not subject to [Presidential Proclamation] 10052 (including those who have been granted a national interest exception). This exception can be extended to derivative applicants when the principal is currently in the United States or has a valid visa.”
(Emphasis added.)
Procedure to apply for national interest waivers
The State Department is in the process of reopening its consular services at its embassies and consulates. Available services will depend on local conditions. The website of the applicable embassy or consulate provides detailed instructions on the services that are currently available and how to request a visa appointment.
Information and documentation in support of the national interest waiver request should be presented at the interview. A decision will be made at the time of interview.
Even if consular assistance is sought, unless a decision occurs quickly, it is also advisable for foreign nationals to apply for a national interest waiver via a new procedure (where available) arranged between U.S. Customs and Border Protection and the American Immigration Lawyers Association. There are six airports – Boston, JFK, Miami (if consular assistance is sought first), Newark, Chicago/O’Hare and LAX – through which an individual can apply for a national interest waiver under the Proclamation “Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus.” (The applications can be submitted from abroad, or through an attorney in the United States.)
Via the Boston airport, for example, requests also can be made for international flights to airports in Connecticut, Maine, Massachusetts, New Hampshire and Rhode Island. It is recommended that the national interest waiver request be filed approximately 14 days before the travel would take place. If approved, Customs and Border Protection in Boston will communicate with the airline’s Regional Carrier Liaison Group to advise it that it is acceptable to allow the individual, otherwise subject to the Presidential Proclamation, to board the flight to the United States
Upon landing, approved individuals are subject to the Centers for Disease Control and Prevention COVID-19 screening process.
(For a printer-friendly copy, click here.)
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| | | | | ¶47,152 WHD continues crackdown on FFCRA compliance; collects $98K-plus in unpaid wages — FEDERAL NEWS
(Jul. 27, 2020)
Three unrelated employers in Florida and Minnesota have paid a combined $6,528 in back wages to three employees for violating the paid sick leave requirements of the newly-enacted Families First Coronavirus Response Act (FFCRA), according to the DOL’s Wage and Hour Division (WHD). The agency also announced collecting $92,290 for 27 employees from an Idaho company that violated the Davis-Bacon Act, and a civil money penalty of $17,586 for a North Carolina McDonald’s franchise for violating the FLSA’s child labor requirements.
COVID-19-related school closing. Medley, Florida-based Martinez Truss Co. has paid an employee $4,352 in back wages for wrongly denying paid sick leave under the FFCRA. The employee had requested time off after their child’s school closed due to the coronavirus pandemic. According to the WHD, the manufacturer violated the FFCRA when it denied the employee’s request for 80 hours of emergency paid sick leave and up to 10 weeks of expanded family medical leave. The agency also found Martinez Truss failed to post a notice of employees’ rights.
Daycare center closed due to coronavirus. After a WHD investigation, the County of Carver, Minnesota, has paid $1,136 in back wages for violating the FFCRA by wrongly denying a worker’s request for paid leave to care for her child when her daycare center closed during the pandemic. Additionally, the county wrongly concluded the employee should be required to choose available emergency daycares when her regular childcare provider was unavailable. No such requirement exists under FFCRA. After being denied leave, the employee resigned. The county offered to reinstate the employee in addition to paying her back wages, but the employee declined.
Quarantine order. The Boys & Girls Club of Palm Beach County, Florida has paid $1,040 in back wages to an employee after the wage and hour agency determined that the employer violated the FFCRA’s paid sick leave requirements. WHD found that the Boys & Girls Club of Palm Beach County wrongfully denied an employee’s request for emergency paid sick leave after the worker’s doctor directed the employee to remain at home due to coronavirus-related concerns. The employer has agreed to pay the employee for the sick leave and committed to future FFCRA compliance.
Violated DBA. Federal contractor JM Concrete Inc., based in Idaho Falls, Idaho, has paid $92,290 in back wages to 27 employees for violating the Davis-Bacon Act’s prevailing wage requirements on a government project. An investigation found that the employer failed to pay required prevailing wages and fringe benefits to the project’s carpenters, truck drivers, power equipment operators, and general laborers. The employer also failed to pay workers weekly as the law requires.
Child labor violations. Mt. Airy Partners Inc., a Summerfield, North Carolina-based enterprise operating 12 McDonald’s restaurants in North Carolina, has paid a civil money penalty of $17,586 for violating the FLSA’s child labor requirements. The WHD found that at its 12 restaurants, the company had 35 employees who were 14- and 15-years-old, and allowed these minors to work outside of the hours allowed for that age group, when the law limits their hours to working no more than three hours on a school day and between 7 a.m. and 7 p.m. during the period of Labor Day through June 1. The employer also violated FLSA recordkeeping requirements when it failed to maintain proof of age for most of its minor employees.
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| | ¶47,154 Rule governing short-term limited duration insurance withstands challenge — FEDERAL NEWS
(Jul. 27, 2020)
Contrary to the insurers’ challenge to the Departments’ definition of short-term limited duration insurance (STLDI), a DC Circuit Court that found that the Departments of Treasury, Labor, and Health and Human Services (the Departments) acted reasonably when they exercised their policymaking authority. The court ruled that the STLDI rule was not contrary to law nor arbitrary and capricious and as such, the court affirmed the lower court’s decision granting the Departments’ motion for summary judgment.
STLDIs were introduced in 1992, when Congress carved out an exception in the Health Insurance Portability and Accountability Act (HIPAA). Congress gave the Departments authority to define STLDI by regulation. For decades, the Departments defined them as plans with an initial contract term of less than one year, which was ultimately documented in a final rulemaking.
When the Patient Protection and Affordable Care Act (ACA) was enacted in 2010, it retained the STLDI as well as the Departments’ definition. Specifically, Congress incorporated by cross-reference HIPAA’s definition of "individual health insurance coverage," which included the exclusion of STLDI. Thus, STLDIs were not subject to many of the ACA’s reforms, because they applied only to "individual health insurance coverage."
The court discussed some history behind and reforms arising from the ACA, noting the Medicare coverage gap made coverage under the ACA for those below the poverty line unattainable. The court explained that when the Exchanges under the ACA opened in 2014 and premiums rose, people turned to the less expensive STLDI policies.
- In 2016, the Departments were concerned that the STLDIs were drawing from the risk pool for ACA-compliant coverage. Thus, they pulled back on the definition covering STLDI to those policies expiring in less than three months after the original date of the contract.
- In 2018, the Departments proposed a return to the original definition of STLDI, ultimately issuing a final rule that defined STLDI as "coverage with an initial contract term of less than one year and a maximum duration of three years counting renewals," the court wrote, citing federal regulations, The Departments elucidated two reasons for the change. These were to increase access to affordable health insurance, especially among the uninsured and to increase consumer choice.
The insurers challenged this STLDI rule, claiming it was contrary to law and arbitrary and capricious. The district court granted the Departments’ motion for summary judgment and the insurers appealed.
At the outset, the insurers argued that the rule is contrary to law because it is inconsistent with HIPAA’s “plain text” and that it is an unreasonable interpretation of that text because of the ACA. The court disagreed, noting that the phrase STLDI is not included in the ACA. Rather, ACA cross-references HIPAA’s definition of individual health insurance coverage, which in turn is defined to exclude STLDI. Noting that the phrase STLDI is ambiguous, the court said it would defer to the Departments interpretation so long as it was "based on a permissible construct of HIPA and the ACA."
Next, the court found that the Departments’ interpretation of the term short term was reasonable. The court explained that the Departments have discretion to define STLDI to include policies shorter than the standard policy term. The court also rejected the insurers attack on the term "limited duration."
Additionally, the court analyzed the insurers’ argument that the STLDI Rule is irreconcilable with the structure and policy of the ACA. The court disagreed, stating the balance of costs and benefits of expanding the length of STLDI policy was up to the Departments. The court said, "whatever choice we might have made in their shoes, we cannot substitute or judgment for theirs."
The court found that the Departments reasonably predicted that the Rule’s potential effects on premiums would be relatively small and the effects on enrollment would be blunted. The court also emphasized that experience confirmed these predictions. Thus, the court rejected the insurers’ argument that the rule is invalid based on speculation.
The STLDI rule was not arbitrary and capricious, ruled the court. The insurers’ laid out numerous arguments to bolster it assertion that the rule was arbitrary and capricious, all of which were rejected by the court. For example, the court rejected the insurers’ argument that the Departments failed to consider the effects of rule and that they acted outside of their discretion to balance the statutes competing policy goals.
Noting that its role was narrow, the court found that the Departments reasonably exercised their policymaking authority granted to them and therefore maintained the STLDI Rule in place.
SOURCE: Association for Community Plans v. U.S. Department of the Treasury (D.C. Cir.), No. 19-5212, July 17, 2020.
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| | | | ¶20,301D States challenge rule that would weaken civil rights protections under provision of ACA — MULTISTATE — Discrimination,
(Jul. 27, 2020) from GEA's HR answers now
By Sheryl Allenson, J.D.
Attorneys general from 23 states and commonwealths (the states) banded together to file suit against HHS, seeking to derail an HHS rule (the 2020 Rule) that would make it easier for health care providers and insurance companies to discriminate based on, among other things, transgender and other LGBTQ+ status, women and people with limited English proficiency (LEP). The complaint alleges that the 2020 Rule “is part of the Trump Administration’s campaign to eradicate civil rights protections for transgender people.”
The attorneys general filed a four-count complaint seeking declaratory and injunctive relief arising from the looming implementation of the 2020 Rule. They seek a declaration, among other things, that the 2020 Rule is arbitrary, capricious, an abuse of discretion, or not in accordance with law, that the Rule violates the Equal Protection Clause of the Fifth Amendment, and that the Rule is in excess of HHS’s jurisdiction. Additionally, the states seek to enjoin HHS from taking action under the Rule. The complaint contains allegations that the 2020 Rule was “improperly motivated by defendants’ animus toward transgender people and antipathy to their health care needs,” and that the 2020 rule is “rife” with that animus.
Section 1557 protections. By way of background, the complaint explains that the ACA contains a civil rights provision known as section 1557. This section prohibits all health programs and activities receiving federal financial assistance, including medical provider, health systems and health insurers from discriminating against individuals on the bases of race, color, national origin, sex, age, or disability.
According to the complaint, after the ACA took effect, HHS confirmed that the statute’s prohibition against discrimination on the basis sex barred, among other things, discrimination based on gender identity, nonconformity to sex stereotypes and pregnancy related conditions. After a three-year long process to codify the statute’s civil rights protections, HHS published a final rule (the 2016 Rule). That Rule laid out the breadth of the statute’s reach at protecting covered entities from discrimination.
LBGTQ protections rolled back. The states claim that thereafter, HHS was engaged in a rollback of LBGTQ protections in its programs, activities and policies. Thus, three years later, HHS had an about face and promulgated a proposed rule known as the Nondiscrimination in Health and Health Education Programs or Activities (2019 NPRM). According to the states, the 2019 NPRM sought to undermine the core protections of the 2016 Rule and of the protections under section 1557.
Thereafter, HHS published a final rule, called Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, which made menial adjustments to the 2019 NPRM. The 2020 Rule seeks to amend HHS’s regulations implementing civil rights statutes under the ACA and Title IX of the Education Amendments of 1972.
The states allege that the 2020 Rule "arbitrarily and unlawfully" strips health care rights protected by section 1557 from transgender and other LGBTQ people, women and other individuals seeking reproductive health care or with pregnancy-related condition, LEP individuals, individuals with disabilities and other individuals experiencing discrimination. According to the states, the 2020 Rule eliminates express sex discrimination protections by removing the definition of "on the basis of sex" from section 1557’s regulations.
What about Bostock? The complaint points out that HHS seeks to implement the 2020 Rule, notwithstanding the Supreme Court’s recent decision in Bostock v. Clayton County. In that decision, the Court held that the prohibition on sex discrimination under Title VII prohibits discrimination based on sexual orientation or transgender status. According to the states, the 2020 Rule flies directly in the face of Bostock’s teachings.
“Health program or activity” redefined. The states also assert that the 2020 Rule redefines covered “health program or activity” to exclude many health insurers not “principally engaged in the business of supplying healthcare.” The Rule is contrary to section 1557 and narrowly defines healthcare to exclude health insurance. In turn, this removes many entities from its scope. According to the complaint, this redefinition is “at odds with” the plain language of section 1557 and its core purpose. Additionally, the states allege that the 2020 Rule runs contrary to section 1557 by creating a “broad” religious exemption.
2020 Rule harms. In the complaint, the states elucidate the many ways in which they are hurt by Rule 2020. For example, they allege that there will various costs and burdens placed on the states, and that public health will be harmed. Additionally, the states allege that the rule will be harmful to, among others, LGBTQ individuals, to women and others seeking reproductive health care or with pregnancy related conditions, and those with limited English speaking capacity.
In light of the allegations set forth by the states, they seek action in four claims for relief. In the first three claims, the states rely on the Administrative Procedures Act. In the fourth the states seek recovery under the Fifth Amendment.
*SUPREME COURT OF THE UNITED STATES Syllabus BOSTOCK v. CLAYTON COUNTY, GEORGIA
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| | | | | Happy 30th anniversary to the ADA BY ROBIN SHEA ON 7.24.20 POSTED IN AMERICANS WITH DISABILITIES ACT, DISCRIMINATION
. . . and an alternate universe without it.
It seems like only five years ago that the Americans with Disabilities Act was celebrating its 25th anniversary. But here we are, five years later, and the ADA is having its 30th anniversary this Sunday.
I like the ADA, and here are some serious reasons why.
Rather than repeat myself this year, let's take a look at what the workplace would be like if there were no ADA.
For your consideration: Ada Smedley. It's 1989. Ada is smart, and capable of being a good worker. She has depression, which is under control with medication. On her last job, she was seriously injured when a co-worker ran over her while drag-racing forklifts with another co-worker. Ada's injuries kept her out of work for six months. While she was unconscious in the hospital, her employer filed a workers' compensation claim on her behalf, and she drew benefits. She's fine now, with the exception of periodic flare-ups of lower back pain, and excited about getting back to work. She's looking for a clerical position. She is eminently qualified.
Ada Smedley is about to enter -- The Twilight Zone.
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| | | | | HRDive News BRIEF: New Prime trucking company settles 2 misclassification suits for $28M
AUTHOR Lisa Burden
PUBLISHED July 28, 2020
Dive Brief:
- New Prime Inc. has agreed to settle two misclassification lawsuits for $28 million (Oliveira v. New Prime Inc., No. 1:15-cv-10603 (D. Mass., July 20, 2020)).
- The parties spent more than five years in court, a stint that included a trip to the U.S. Supreme Court over the applicability of an arbitration agreement.
- The truck drivers had alleged the company misclassified them as independent contractors and failed to pay them for time spent in classroom orientation and driving, in violation of the Fair Labor Standards Act (FLSA) and state law. Each of the 40,000 class members may receive at least $100, according to the agreement, which still needs a court's final approval.
Dive Insight: T he parties' intent when entering into an employment arrangement has little bearing on the employee versus independent contractor analysis. A U.S. Department of Labor (DOL) fact sheet on the FLSA states that an independent contractor agreement between the employer and the worker does not make an employee an independent contractor. And in 2019, an Alabama federal district court held that a signed independent contractor acknowledgment form wasn't enough for an employer to overcome a delivery driver's claims that he was an employee.
Instead, enforcement authorities require that employers base employee or independent contractor classification on specific tests, which can vary by jurisdiction. These tests, however, generally turn on how much control an employer exerts, or maintains the right to exert, over the work and the working conditions. Generally, the more control, the more likely it is that the worker will be an employee.
DOL has said enforcement of the issue is important because misclassified employees "often are denied access to critical benefits and protections they are entitled to by law," including overtime and minimum wage protections, family and medical leave, unemployment insurance and certain safe workplace laws. And recoveries can be substantial: Flowers Foods, which says it is one of the largest producers of packaged baked goods in the country, recently agreed to pay $9 million to settle allegations that it misclassified its distributors as independent contractors.
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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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