COVID-19: News and Updates |
| Special #32 - May 06, 2020 |
|
Articles and Updates Today
- Constangy, Smith, Brooks & Prophete,LLP Coronavirus: Return to Work FAQs
- Constangy, Smith, Brooks & Prophete,LLP Information on NLRA Section 7 and 502
- ¶46,916 Employee allegedly fired for COVID-19 self-isolation raises FFCRA estoppel, FMLA claims — FEDERAL NEWS, May 5, 2020
- ¶46,917 COVID-19 safety tips for restaurants, food and beverage businesses with carryout or curbside pickup — AGENCY GUIDANCE May 5, 2020
- ¶46,922 DOL extends HIPAA, COBRA, other timeframes applicable to group health plans — AGENCY REGULATION, May 6, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report |
| | | | | Constangy, Smith, Brooks & Prophete,LLP From Mel Haas / Macon Location
Information on NLRA Section 7 and 502
Protected Concerted Activity under Section 7 of the NLRA
The NLRA provides workers with the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Concerted Activities of employees are protected by law if they relate to wages, hours and other terms and conditions of employment. Activity is considered concerted where it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). An employee can be found to speak on behalf of other employees even if the individual is not specifically authorized or designated to speak on behalf of the group. A single employee may also engage in protected concerted activity if he or she is: acting on the authority of other employees; bringing group complaints to the employer's attention; trying to induce group action; or seeking to prepare for group action. It is unlawful for an employer to take action against an employee because of the employee’s protected and concerted activity.
Refusal to work over unsafe working conditions is considered protected concerted activity. “It has long been established that Section 7 of the Act protects the rights of employees to engage in protests, including work stoppages, over what the employees believe to be unsafe or unhealthy working conditions.” Tamara Foods, Inc., 258 NLRB 1307 (1981).
Section 502 of the NLRA – abnormally dangerous working conditions
The NLRA provides added employee protections in Section 502. Under that section, employees that refuse to work due to “abnormal, unsafe working conditions” will not be considered striking employees, and thus, cannot be treated as striking employees. In Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368 (1974), the Supreme Court of the United States held that an “abnormally dangerous” working condition is one that presents “some identifiable, presently existing threat to the employees’ safety” when judged by ascertainable, objective evidence. In TNS, Inc., 329 NLRB 602 (1999), the NLRB found conditions to be abnormal in cases where “risks that are ordinarily present have been intensified”; cases where normally hazardous working conditions are exacerbated by an outside factor. The belief must be objective and quantifiable. The NLRB requires demonstration by a preponderance of the evidence that “the employees believed in good-faith that their working conditions were abnormally dangerous; that their belief was a contributing cause of the work stoppage; that the employees’ belief is supported by ascertainable, objective evidence; and that the perceived danger posed an immediate threat of harm to employee health or safety.”
|
| | | ¶46,916 Employee allegedly fired for COVID-19 self-isolation raises FFCRA estoppel, FMLA claims — FEDERAL NEWS,
May 5, 2020 From GEA's HR Answers Now
A wrongful termination lawsuit filed in federal court in Indiana makes an interesting argument that The Kroger Company, even though it’s not a covered employer under the Family First Coronavirus Response Act (FFCRA), was nonetheless estopped from denying an employee 14 days of paid leave covering COVID-19-related self-isolation and symptoms under the company’s own policy, which was represented as aligned with the FFCRA. The complaint also alleges that the terminated employee, who worked at a distribution center, was entitled to FMLA protections.
The company allegedly represented that it had amended its ‘"Emergency leave Guidelines’ to cover COVID-19 related self-isolation and symptoms (in line with the protections afforded by the FFCRA)." The company also purportedly amended its attendance policy so that points associated with COVID-19 symptoms would be removed once "acceptable medical documentation" was provided.
COVID-19 symptoms and self-isolation. The complaint details the employee’s virtual hospital visit with COVID-19 symptoms and a doctors’ note excusing her from work that Kroger’s HR staff deemed inadequate. On a second virtual visit, the doctor’s note allegedly indicated a diagnosis, "URI vs. COVID-19 most likely URI [upper respiratory infection] at this time …" the note also excused the employee from work April 6-20, and said that the employee should "self-isolate for 14 days," with the instruction "[d]o not return to work or public places during this time."
The employee’s live-in boyfriend, who also worked at Kroger, was similarly advised in a doctor’s note to self-isolate for COVID-19 related reasons. Ultimately, the employee was purportedly fired for attendance points that had accumulated for the time she self-isolated because she had no vacation time to apply so she could "attend to her serious medical condition," as the complaint characterized it. Her boyfriend, however, had vacation time to apply to his leave, and so was not fired.
FMLA violation. The employee contends that Kroger violated the FMLA because it failed to initiate a discussion with her about taking leave under that statute. "Defendant is a covered employer, and Plaintiff a qualified employee, under the FMLA, and therefore her need for time off work in excess of three days to attend to her serious medical condition entitled Plaintiff to protection of her job under the FMLA," the complaint states. "Defendant’s actions when terminating Plaintiff were in direct violation of the FMLA."
FFCRA estoppel. The employee also argues that Kroger failed to adhere to its own policy set forth in response to the COVID—19 pandemic, which "mirrors the FFCRA, Division E." Accordingly, the company is "estopped from asserting that it was not a covered employer under the FFCRA, as it represented to its employees that they were entitled to the same protections as afforded by the FFCRA," the employee contends.
The complaint seeks compensatory damages, reasonable attorney’s fees, and costs. It also alleges that Kroger’s actions were "knowing, intentional, willful, wanton, and in direct violation of Plaintiff’s federally protected rights pursuant to the FMLA and the FFCRA," entitling the employee to liquidated damages.
The employee filed her lawsuit, Robtoy v. The Kroger Company, dba Peyton’s Northern Distribution Center, in the Northern District of Indiana, Fort Wayne Division; the case is No. 1:20-cv-00173.
|
| | | | ¶46,917 COVID-19 safety tips for restaurants, food and beverage businesses with carryout or curbside pickup — AGENCY GUIDANCE
May 5, 2020 From GEA's HR Answers Now
As it has for other types of workers, OSHA on May 1 issued guidance with safety tips for restaurant, and food and beverage businesses so that they can protect their workers from COVID-19 exposure while they provide curbside pickup and takeout service. *Note that the new guidance does not address inside or outside seated service, although several states are moving to re-open restaurant services with reduced inside seating capacity.
OSHA has issued safety tips for businesses with restaurants & beverage vendors offering takeout, construction, retail, package delivery, and meatpacking and processing workers.
Safety tips. As the federal health and safety agency has recommanded in previous guidance, restaurants and food and beverage business that provide curbside and/or takeout services should encourage workers to stay home if they are sick and toreport any safety and health concerns.
OSHA offered these additional tips to avoid COVID-19 exposure:
- Avoid direct hand-off, when possible.
- Display a door or sidewalk sign with the services available (e.g., take-out, curbside), instructions for pickup, and hours of operation.
- Reserve parking spaces near the front door for curbside pickup only.
- Train workers in proper hygiene practices and the use of workplace controls.
- Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
- Provide a place to wash hands and alcohol-based hand rubs containing at least 60 percent alcohol.
- Routinely clean and disinfect surfaces and equipment with Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
- Practice sensible social distancing by maintaining six feet between co-workers and customers. Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
The new alert is also available in Spanish.
Other coronavirus information. OSHA has also published Guidance on Preparing Workplaces for COVID-19. Visit OSHA’s COVID-19 webpage frequently for updates. For further information about the coronavirus, visit the Centers for Disease Control and Prevention.
|
| | | | ¶46,922 DOL extends HIPAA, COBRA, other timeframes applicable to group health plans — AGENCY REGULATION,
May 6, 2020 From GEA's HR Answers Now
The Department of Labor and the IRS have issued a final rule that extends certain time frames affecting participants’ rights to health care coverage, portability, and continuation of group health plan coverage under COBRA, and extends the time for plan participants to file or perfect benefit claims or appeals of denied claims. The agencies have issued the notice and a set of frequently-asked-questions (FAQs) to help employee benefit plans, plan participants and beneficiaries, employers and other plan sponsors, plan fiduciaries, and other service providers impacted by the COVID-19 pandemic.
According to the DOL, these extensions provide participants and beneficiaries of employee benefit plans additional time to make important health coverage and other decisions affecting their benefits in light of the National Emergency. The final rule was published in the May 4, 2020, Federal Register. The agencies also note that they will continue to monitor the effects of the COVID-19 outbreak and may provide additional relief as warranted.
“Outbreak period.” The extension of the various timeframes apply with respect to the period from March 1, 2020, until 60 days after the announced end of the National Emergency period, or a later date that will be announced in separate guidance. The final rule refers to this as the "outbreak period." In the final rule, the agencies use April 30, 2020, as the assumed end date of the National Emergency in several examples (making June 29, 2020, the end of the outbreak period). Note that the final rule indicates that this date was used to make the examples clear, and it is understood that the end date of the National Emergency will be later than April 30.
HIPAA. Under the Health Insurance Portability and Accountability Act (HIPAA), employees have a 30-day special enrollment period to request enrollment in a group health plan following the loss of eligibility for group health coverage, individual health coverage, or the acquisition of a new spouse or dependent by marriage, birth, or adoption. In addition, employees have a 60-day special enrollment period to request enrollment after losing Medicaid or Children’s Health Insurance Program (CHIP) eligibility, or if the employee becomes eligible for state premium assistance subsidy under Medicaid/CHIP.
Under the final rule, the 30-day and 60-day HIPAA special enrollment timeframes are disregarded during the outbreak period. For example, if an employee has a baby and would like to enroll in group health coverage, the standard 30-day special enrollment period is extended by disregarding the outbreak period. If the National Emergency ended on April 30, 2020, the employee would have until July 29, 2020 (30 days after June 29, 2020) to enroll her and her child in coverage.
COBRA. Under COBRA, employees and dependents who lose coverage as a result of a qualifying event have 60 days to elect COBRA coverage. The final rule extends the 60-day COBRA election period by disregarding the outbreak period. If an employee lost group health plan coverage and received a COBRA election notice on April 1, 2020, and if the National Emergency ended on April 30, 2020, the employee would have until August 28, 2020 (60 days after June 29, 2020) to elect COBRA.
In addition, qualified COBRA beneficiaries have 45 days from the COBRA election to make the first premium payment, and monthly payments must be made by the end of the 30-day grace period that starts at the beginning of each coverage month. Under the final rule, the 45-day initial premium payment and 30-day grace period for subsequent premium payment timeframes are disregarded during the outbreak period. In the example provided, the qualified COBRA beneficiary fails to make timely COBRA payments for March, April, May, and June. Because the 30-day payment grace period is disregarded during the outbreak period, the COBRA beneficiary has until July 29, 2020 (assuming the National Emergency ended on April 30, 2020) to make the COBRA premium payment for March, April, May, and June. However, if the beneficiary makes only two months of payments by July 29, 2020, those premiums would apply for March and April and the individual would not have COBRA coverage for any month after April 2020.
COBRA election notice. Employers must provide a COBRA election notice to individuals who experience a qualifying even within 44 days from the loss of coverage. The final rule extends this deadline by disregarding the outbreak period. For example, if an employee loses coverage as of April 1, 2020, and the National Emergency ended on April 30, 2020, the plan will have until August 12, 2020 (44 days after June 29, 2020) to provide the COBRA election notice.
Benefit claims. The final rule extends group health plans’ deadlines to file a benefit claim under the plans’ claims procedures by disregarding the outbreak period. If a group health plan requires that benefit claims be submitted within 365 days of the date of service and the National Emergency ended on April 30, 2020, the employee’s last day to file a benefit claim is June 29, 2021 (365 days after the end of the outbreak period).
Benefit appeal deadlines. There are specific deadlines required for group plans for appeals under ERISA. Two of these deadlines are the 180-day timeframe to appeal an adverse benefit determination under a group health plan or disability plan, and a 60-day timeframe to appeal an adverse benefit determination under any other type of plan. These timeframes are extended by disregarding the outbreak period under the final rule. For example, if an employee received a notification of an adverse benefit determination on January 28, 2020, and the National Emergency ended on April 30, 2020, the last day for the employee to submit an appeal is November 24, 2020 (148 days after June 29, 2020).
FAQs. The Departments also issued a set of FAQs on health benefit and retirement benefit issues to help employee benefit plan participants and beneficiaries, plan sponsors, and employers impacted by the coronavirus outbreak understand their rights and responsibilities under ERISA. For more information on the FAQs, see https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/covid-19.pdf.
|
| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 05/06/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/06/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases:
Total 30,671
Hospitalized 5743 Deaths 1305 (Total Tested : 204,137 updated twice daily)
|
| |
New Resorce Links
- OSHA has issued safety tips for: |
|
Georgia Employers' Association |
|
|
| |
