COVID-19: News and Updates |
| Special #33 - May 08, 2020 |
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Articles and Updates Today
- Oh, so THAT'S what you meant! The EEOC clarifies its position on COVID-vulnerable employees. BY ROBIN SHEA ON 5.8.20Constangy, Brooks, Smith & Prophete,LLP
- ¶46,927 EEOC’s COVID-19 Q&A updates add information on return-to-work disability accommodations — FEDERAL NEWS, May 8, 2020
- ¶46,926 CDC updates COVID-19 home isolation period from 7 to 10 days — PRACTICE TIP, May 7, 2020
- HRDive Article -Deferred care could reduce large employers' 2020 healthcare spend AUTHOR Ryan Golden @RyanTGolden
PUBLISHED May 7, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report |
| | | | | | | | Oh, so THAT'S what you meant! Constangy, Brooks, Smith & Prophete,LLP
BY ROBIN SHEA ON 5.8.20
POSTED IN AMERICANS WITH DISABILITIES ACT, CORONAVIRUS, REASONABLE ACCOMMODATION
The EEOC clarifies its position on COVID-vulnerable employees.Yesterday, the Equal Employment Opportunity Commission reissued guidance on employers' responsibilities with respect to employees who have medical conditions that make them vulnerable to COVID-19. (Scroll to Question G.4.)
The word on the street was that the EEOC's original guidance, issued on Tuesday, was saying it was fine and dandy for an employer to just send those "vulnerable" employees right home.
On Wednesday, the EEOC withdrew the guidance, saying it had been misunderstood by too many people. Yesterday the agency issued its clarified version.
The new version says exactly what I would have expected the EEOC to say, but because of all of the conflicting news reports, it might be worthwhile to go over it, step by step.
First, the guidance pertains to employees who have medical conditions that might cause them to be especially susceptible in the event of a COVID-19 exposure, or that might put them at much higher medical risk than the general population if they come down with the virus.
Many times, these underlying medical conditions will be considered "disabilities" within the meaning of the Americans with Disabilities Act. For example, employees with diabetes, or who are immunocompromised, are considered vulnerable.
So, let's say the employer is bringing everybody back to work, including Marvin, who is immunocompromised. And the employer is concerned that Marvin may be in danger if he comes back to work and is exposed to coronavirus. Here are the rules:
Rule No. 1: If Marvin doesn't request reasonable accommodation, then the employer is not required to accommodate. (That's not to say that the employer can't accommodate -- only that it isn't required to accommodate.)
Rule No. 2: Even if the employer is concerned about Marvin's safety, it can't "exclude the employee - or take any other adverse action" on that basis. The only way the employer can do this is if allowing Marvin back into the workplace would create a "direct threat" to Marvin's health or safety. (Direct threat can also apply when an employee's condition creates a "direct threat" to the health and safety of others.)
Funny Spot: "B-b-but, I need to work!" "Some day you'll thank me. Now, beat it."
Rule No. 3: The "direct threat" standard is a tough one to meet. The employer cannot base it only on the fact that Marvin is "immunocompromised." Instead, the employer would have to make an "individualized assessment," taking into account Marvin's condition as it applies to Marvin and Marvin's work environment.
Rule No. 4: For an employer invoking "direct threat," it isn't enough just to show an elevated risk of harm. Instead, the employer has to show "a significant risk of substantial harm." (Emphasis is mine.) In making that determination, the employer has to consider the duration of the risk, "the nature and severity of the potential harm," the likelihood of harm, and the imminence of the harm -- as applied to Marvin, given Marvin's particular condition and the effects on Marvin, and the environment in which Marvin works. In the context of COVID-19, the employer would also be expected to consider the risk of contracting COVID-19 in the geographical area of the worksite -- for example, an employer in New York City might be able to take more aggressive steps to protect Marvin (whether he wants it or not) than an employer in Wyoming. The employer should also consider the effect of the measures that it was already taking with respect to all employees -- for example, social distancing requirements, temperature monitoring, or requiring use of masks in common areas.
So, OK -- let's say Marvin's employer jumps through all these hoops and still thinks that Marvin is at "significant risk of substantial harm" if he comes to work onsite. We're good, right?
Rule No. 5: As a final step before putting Marvin out of work, the employer must consider whether there are reasonable accommodations that would reduce the risk below a "direct threat" level. For example, if Marvin has an office, can he work with his door closed, and can he and his co-workers be required to wear masks when they leave their offices? If he doesn't have an office, can his work station be moved to a more remote location at the worksite? Can he interact with his co-workers by email, instant messaging, or phone? And, if none of those options will work, can he do his job remotely? If not, can he transfer to a different job? As with all reasonable accommodations, the employer is required to engage in the "interactive process" with Marvin, which means both parties should "brainstorm" about accommodations that may be effective.
The EEOC concludes,
"An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation."
This is classic "direct threat" guidance, very consistent with the position that the EEOC has always taken. So don't be too quick to send those "vulnerable" employees home unless they ask you to send them home.
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| | | | ¶46,927 EEOC’s COVID-19 Q&A updates add information on return-to-work disability accommodations — FEDERAL NEWS,
May 8, 2020 from GEA's HR answers now
On May 5, the EEOC updated its question and answer series on COVID-19 and the ADA, the Rehabilitation Act, and other antidiscrimination laws enforced by the federal agency. Much of the periodically updated guidance has been focused around workplace accommodations, with two new questions addressing issues that may arise as employees return to the workplace.
Notably, a third Q&A about the accommodation and return to work of employees with underlying medical conditions that may present "a direct threat to self" was initially posted and quickly removed, apparently because it was "misinterpreted in press reports and social media," as the EEOC put it. The agency is revising and updating it to "ensure that it is clear."
Employees with higher COVID-19 risks. The first updated Q&A addresses what an employee needs to do in making a reasonable accommodation request because she has one of the medical conditions identified by the CDC as potentially putting her at higher risk of severe illness from COVID-19. Here the EEOC advises that either the employee or a third party, such as the employee’s doctor, must let the employer know that she needs a change for a reason related to a medical condition, in this scenario, the underlying condition.
The request may be made in conversation or in writing. Neither the employee nor the third party need to use the term "reasonable accommodation" or reference the ADA, but they may do so. The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.
After receiving the request, the employer may ask questions or seek medical documentation to help determine whether the employee has a disability and whether there is a reasonable accommodation, barring undue hardship, that can be provided.
Eliminating direct threat to self. The second updated Q&A discusses examples of accommodations that, absent undue hardship, may either eliminate or reduce to an acceptable level a direct threat to self. Here, the EEOC offered several possible accommodations:
- Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
- Additional or enhanced protective measures such as erecting a barrier that provides separation between an employee with a disability and coworkers/the public, or increasing the space between an employee with a disability and others;
- Eliminating or substituting particular "marginal" functions (less critical or incidental job duties as distinguished from the "essential" functions of a particular position); and
- Temporarily modifying work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
The EEOC noted that identifying an effective accommodation depends on an employee’s job duties and the design of the workspace, among other things, and that the employer and employee should discuss possible ideas. The Job Accommodation Network also may be able to assist in helping to identify possible accommodations. The EEOC also encouraged employers and employees to be both creative and flexible.
Additional information. All EEOC materials related to COVID-19 are collected atwww.eeoc.gov/coronavirus.
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| | | | ¶46,926 CDC updates COVID-19 home isolation period from 7 to 10 days — PRACTICE TIP,
By Pamela Wolf, J.D.
May 7, 2020 from GEA's HR answers now
Employers that have continued doing business during the COVID-19 pandemic, as well as those that are reopening or planning to reopen, should take note that the CDC on May 3 updated information about the length of self-isolation period required for those who have displayed coronavirus symptoms or tested positive for COVID-19. Isolation is now recommended for 10 rather than seven days.
New data. "At this time, replication-competent virus has not been successfully cultured more than 9 days after onset of illness," according to the CDC. "The statistically estimated likelihood of recovering replication-competent virus approaches zero by 10 days (CDC unpublished data, Wölfel 2020, Arons 2020)."
Isolation period extended. For this and other reasons, the CDC has thus extended the recommended home isolation period from seven to 10 days since symptoms first appeared for persons with COVID-19 who have symptoms, and from seven to 10 days after the date of their first positive test for asymptomatic persons with lab-confirmed COVID-19. Notably, the CDC said that this time period will capture a greater proportion of contagious patients, but it will not capture everyone.
Revisit employee leave policies. Although these updates are intended for healthcare providers and public health officials managing persons with COVID-19 under isolation who are not in healthcare settings, they nonetheless are instructional for employers monitoring workplace incidents of coronavirus symptoms and employees, asymptomatic or not, testing positive with the goal of reducing risk of spreading infection.
In light of the updated recommendation, it may be wise for employers to review their employee leave policies and to either extend existing coronavirus-related leave, or implement new policies in order to encourage employees to stay home from work for a self-isolation period consistent with the CDC update.
By Pamela Wolf, J.D.
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| | | HRDive Article Deferred care could reduce large employers' 2020 healthcare spend
Dive Brief:
The COVID-19 pandemic could reduce large, self-funded employers' healthcare costs by as much as 4% in 2020 due to deferred medical care, according to an updated study published May 1 by Willis Towers Watson.
The advisory firm said its estimates vary depending on geography and take into account projections of the number of Americans expected to be impacted by the first wave of COVID-19. At a 1% infection rate, for example, employers' healthcare costs could decline between 1% and 4%. But at a 20% infection rate, those costs could increase between 1% and 3%. These high-end estimates are still lower than Willis Towers Watson's previous high-end estimate that healthcare increases could reach 7% for self-funded employers this year.
The estimates reflect increases to medical and pharmaceutical costs only, Willis Towers Watson said. Other health plan costs, including dental and vision care, will likely decrease in 2020 as employees eliminate some discretionary care, the firm said.
Dive Insight:
Employee benefits analysts including Willis Towers Watson are essentially saying that while COVID-19 testing and treatment could add significant healthcare costs for employers in 2020, employees may also defer certain types of care.
Some observers, including the American Academy of Actuaries, have already noticed reduced healthcare spending during the initial months of the pandemic, primarily due to social distancing or desire to free up hospital space for COVID-19 patients, InsuranceNewsNet reported last month. Management consulting company Milliman predicted in an April report that 2020 health insurance payers would see a net reduction of between $140 and $375 billion in costs nationally through the end of June. But Milliman also said payers could see an increase in costs after the pandemic "due to deferred care and pent-up demand," adding that "those costs are likely to be significant."
In its previous analysis released in March, Willis Towers Watson estimated that the total medical and prescription costs for persons infected with COVID-19 could range from $250 for mild cases to $100,000 for catastrophic cases, including those requiring intensive care. A separate report released in April by the Integrated Benefits Institute found that the total cost of the COVID-19 pandemic to employee benefit plans could exceed $23 billion, provided that the U.S. records over 15 million cases of the disease.
Besides costs for employers, the pandemic has also impacted how insurers approach the employee benefits space. Among other things, insurance carriers surveyed by LIMRA in April said they were considering whether to automatically continue coverage for all employees for a specified period of time, as well as extend eligibility on a case-by-case basis to employees whose job status has changed. Employers who are hiring to fill customer demand during the pandemic, like grocery chain Lidl, are making new hires immediately eligible for some healthcare benefits.
Elsewhere, employers have looked to save costs during the pandemic by turning to pay reductions rather than layoffs in some instances, according to an analysis last month by Gallagher. The company found that such pay cuts extended even to those at the CEO level.
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| | | Georgia Department of Public Health COVID-19 Daily Status Report
Georgia Department of Public Health COVID-19 Daily Status Report For: 05/08/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/08/2020 12:22:57.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 227,477)
COVID-19 Confirmed Cases:
Total 32,126 Hospitalized 5,957 Deaths 1,395
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Georgia Employers' Association |
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