COVID-19: News and Updates |
| Special #44 - June 11, 2020 |
| Articles and Updates Today
- HRDive Article > Court: Company can't enforce noncompete against employee it laid off, rehired AUTHOR: Kate Tornone @KateTornone
PUBLISHED June 10, 2020- HRDive Article > Productivity monitoring: Considerations for HR, from compliance to culture AUTHOR Pamela DeLoatch
PUBLISHED June 8, 2020
- ¶47,056 CMS encourages non-federal government plans to expand access to telehealth options, prescription drugs during COVID-19 outbreak — AGENCY GUIDANCE, June 11, 2020
- US Bureau of Statistics: Local Area Unemployment Statistics / go to webpage>>
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Post COVID-19 Risk Assessment
and Mitigation Prospectus
Unprecedented times have called for unprecedented measures by employers. Our clients have taken swift, decisive and selfless actions to stabilize their businesses, protect their employees and customers, and prepare for what we anticipate will be a comeback of epic proportions when America returns to inperson work.
Meanwhile, employee-side attorneys, unions and administrative agencies have likewise been focusing on their business and gearing up for what they expect will be a bonanza when operations return to a sense of normalcy. The decisions made over the last two months by employers are being scrutinized, and, fair or not, will be the subject of intense debate, litigation and investigations.
At Constangy, all we do is workplace law. We created this short Prospectus as a resource for our clients to conduct a self-assessment of some of the activity we anticipate/issues we believe will be vetted, and to offer a helping hand. Some mitigation tactics are common sense, like documenting decisions, ensuring consistency, and training personnel; others are more nuanced or company-specific, however, and we’ve learned that there’s rarely a one-size-fits-all solution for our clients.
Whether assisting your company in assessing risk, or helping to mitigate evident liability arising out of actions which have already been taken, we will continue to be your business partner during this time, and we’re here for you 24/7. Please reach out to your Constangy contact, or any of our attorneys, for assistance.
Benefits
• Whether employers followed benefit plan terms in either continuing or ending coverage due to reduction in hours or furlough and whether plan terms match administrative practice and legal requirements
• Paid time off and sick leave issues
Contracts
• Whether employers breached contracts, or properly sought amendments, in connection with schedule reductions, pay/bonus cuts, furloughs, layoffs and other cost-cutting measures
• Delayed start dates for hires/rescinding offers
• Increased employee mobility, triggering non-compete and trade secret theft litigation
• The applicability of common law contract defenses and enforceability of force majeure clauses COVID-19 Legislation
• Compliance with the federal Families First Coronavirus Response Act, state/local COVID-19 sick leave legislation, and related retaliation claims by those who sought/utilized such benefits
• Compliance with stay-at-home/shelter-in-place orders, and decisions to self-designate as an essential employer (or require essential employees to report physically to work)
Discrimination/Retaliation
• National origin/race discrimination claims by Asian-Americans (particularly Chinese-Americans) given the origins of COVID-19
• Disability and FMLA discrimination claims associated with COVID-19 diagnoses
• Individual and class action discrimination/retaliation claims brought by those included in layoffs, furloughs, schedule reductions and pay cuts, and by those not rehired after the crisis Employee Expenses
• Work from home reimbursements (e.g., cell phone, WiFi, office supplies, etc.)
Federal Contractors
• Recordkeeping and affirmative action compliance with respect to cost-cutting measures
Immigration
• Whether employers were compliant with Form I-9/E-Verify temporary procedures to avoid DOJ investigations and DHS audits
• DOL/USCIS recordkeeping practices of employer’s H-1B programs during COVID-19 related temporary measures OSHA/Workplace Safety
• Whether an employer is complying with its responsibility to provide a safe and healthy workplace, including negligence cases filed by individuals blaming employers for claimed workplace infections
• Avoiding whistleblower claims of retaliation for reporting COVID-19-related concerns
Union Relations
• Compliance with collective bargaining agreements in connection with COVID-19 driven decisions
• Union organizing at companies which have utilized layoffs, furloughs or other cost-cutting measures Wage and Hour Issues
• Compliance with the salary basis test in connection with furloughs, schedule reductions and pay cuts
• Claims arising out of time spent associated with safety procedures (temperature or symptom checks, donning and doffing additional PPE, etc.)
WARN Act/Mini-WARN Act Compliance
• Triggering of WARN Act/Mini-WARN Acts in conjunction with layoffs, furloughs and office closures
Workers’ Compensation
• Workers’ compensation claims by infected employees
• Retaliation claims by individuals chosen for layoffs, furloughs, pay cuts and other measures who have utilized workers’ compensation benefits
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Business Impact Tracker
As part of Constangy’s efforts to monitor and provide the most up-to-date information to our clients, we are tracking the various laws passed and orders implemented by state, county, and local governments in response to the COVID-19 pandemic. The below spreadsheets track the ways in which jurisdictions around the country have responded to the outbreak. This includes executive orders and legislation involving business closures, paid sick leave, employee screening, mass lay-offs, travel restrictions, quarantines, unemployment benefits, and a host of other issues affecting employers. Warning this is an Excel download: COVID-19-Related State and Local Executive Orders and Laws (Business Shutdowns, Paid Leave, Employee Screenings, WARN Act Modifications, Etc.)
COVID-19-Specific State Unemployment Changes
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| | | HRDive Article Court: Company can't enforce noncompete against employee it laid off, rehired
AUTHOR: Kate Tornone @KateTornone PUBLISHED June 10, 2020
Dive Brief: - A pharmaceutical company cannot enforce a noncompete agreement against an employee it laid off and then rehired, the 1st U.S. Circuit Court of Appeals held (Russomano v. Novo Nordisk v. BioMarin Pharmaceutical, No. 20-1173 (1st Cir. June 2, 2020)).
- When Novo Nordisk hired Thomas A. Russomano, it had him sign confidentiality and noncompete agreements. Later, as part of a restructuring, Novo Nordisk informed Russomano that it was eliminating his position and that in a few weeks, his employment would end. It also invited him to apply for other vacant positions with the company. Russomano applied for and received a different position with Novo Nordisk and began work immediately following the layoff; he was not required to sign a new noncompete. He later quit to join a new company and, during related litigation, Novo Nordisk alleged his new employment violated the agreement.
- A district court declined to prohibit Russomano from working for the competitor, finding that the noncompete applied only to the earlier position at Novo Nordisk and that its 12-month restriction had already expired. On appeal, the 1st Circuit agreed that Russomano was not continuously employed; rather, he was laid off and rehired.
Dive Insight:
Noncompetes are notoriously difficult to enforce, and employment experts often recommend that employers use them sparingly.
Alleged overuse has garnered national attention for reportedly suppressing wages and driving workers across state lines. Jimmy Johns, for example, previously required sandwich shop employees to sign them; following a lawsuit, the company ended the practice. During the Obama administration, the federal government called on states to limit employers’ ability to use such agreements, and many responded with laws doing so.
Still, experts say noncompetes have their place, like protecting certain intellectual property. But to be enforceable, they need to balance the employer’s and employee’s interests.
Among other things, employers may need to consider appropriate time limits. “For a CEO, a five-year non-compete might be legitimate. For a sales representative, one year might be more appropriate," Autumn Gentry, attorney with Dickinson Wright, previously told HR Dive. "There has to be a balance between the business interest and the employee’s right to work. An agreement cannot be so broad it would prevent someone from working elsewhere for the remainder of their career."
Follow Kate Tornone on Twitter
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| | | HRDive Article: Productivity monitoring: Considerations for HR, from compliance to culture AUTHOR Pamela DeLoatch PUBLISHED June 8, 2020
Despite the popularity of remote work, some employers aren't sold on the idea, worried that employees will slack off without supervision. Enter: productivity monitoring. Read online>>
Remote work isn't new. Its road to popularity has been paved by workers seeking the flexibility, job satisfaction, and productivity it provides. An analysis by FlexJobs and Global Workplace Analytics found that in the last five years, remote jobs grew 44%, and in February 2020, 4.7 million U.S. workers operated remotely.
Despite the popularity remote work has among employees, some employers aren't sold on the idea, worried that employees will slack off without supervision.
But the novel coronavirus pushed wary employers to accept the arrangement. For many companies, allowing employees to work from home was no longer just a nice perk; it was the only way to continue operations. According to a report from Willis Towers Watson, the amount of remote workers surged to 53%, after clocking in at 7% last year.
With remote employment now a necessity, employer concerns about working from home may feel even more urgent. After all, without being in the office, how can managers ensure employees are being productive? If managers can't stroll by employees' cubicles, how do they know they're working and not refreshing their Twitter feeds? Or that they are keeping company information secure? Or that they aren't misusing company devices?
A common solution: Employee monitoring
Companies may address employee productivity and security concerns by using a variety of monitoring technologies, said Adam Forman, labor and employment attorney at Epstein Becker Green. These include video, audio, screenshots and other technologies to measure productivity, he said.
Although it may sound intrusive, employee monitoring of this type is very common, said Fred Cate, senior fellow at the Center for Applied Cybersecurity Research at Indiana University. "I would be surprised if there's no monitoring," he said. Employers look at information such as employees' use of intellectual property, how much work employees perform, and log-on and log-off times, he said.
Since employees began working remotely because of COVID-19, interest in monitoring has increased, said Eli Sutton, vice president of global operations at Teramind, a provider of employee monitoring and insider threat detection. "In the past couple of months, we've had more than three times the usual interest from new clients and current clients who need more licenses to work in the home environment," he said.
Monitoring software helps employers understand what users are doing with company time, Sutton said. This includes ensuring employees are being productive and are maintaining the same level of in-office security while out of the office. A recent study found that around 30% of employee accounts globally were compromised since employees started working at home due to COVID-19.
Legal ramifications? It's complicated
Although monitoring is generally accepted in the company office, can an employer still monitor an employee at home? Yes and no, said Forman. "There is a patchwork of laws that regulate an employer's ability to monitor the activities of its workers," Forman said. In other words, it's complicated.
Employees in the public sector have different protections than those in the private sector. Add to that a myriad of laws that include state regulations, the Electronic Communications Privacy Act of 1986 and the National Labor Relations Act. These statutes and others provide employers guidance, Forman said, but they also often provide conflicting exceptions.
Employers that want to monitor staff should create a written policy or procedure, Forman said. Similar to a social media policy or electronic technology policy, this policy would inform employees that they may be monitored and eliminates the expectation of total privacy, he added.
Monitoring in the age of personal devices
Employers can monitor employees using company equipment, but it gets a little stickier when employees want to use their own devices. "You may want to leverage technology to get around concerns," Forman said.
For example, companies can require that employees install mobile device managers to access corporate documents. "[The device manager] essentially creates a sandbox within your device where all corporate information resides," Forman said. If a phone is lost, the company can wipe the corporate data from the phone, leaving the personal information intact. Or, if employees leave the company, they can't take the "crown jewels" of information with them, he added.
Some monitoring providers offer customizable options. Companies that use Teramind software, for example, determine what information should or should not be monitored, Sutton said. For example, if an employee is in customer service, the company may want to use the audio component to measure call quality and check for ambient noise that might distract the customer, he said.
Reducing the creepy factor
Employers may have a multitude of reasons to monitor employees' actions carefully, but they should be aware of the downsides, multiple sources said. Employers don't want to be viewed as overly intrusive, Forman said. This can happen when employees don't know they're being monitored, and employers install spyware to turn on laptop cameras, read emails or listen in on calls. In some cases, this can be done legally, but employers can still face ramifications.
Employers may also learn more than they want to know about an employee, Cate said. Monitoring might uncover harassment or information about an employee's health that impacts the job. Once the employer gains that information, they may have a legal obligation to act, he said.
'Can' doesn't always mean 'should'
Aside from compliance issues, monitoring remote employees' productivity is a bad idea, said Rhiannon Staples, chief marketing officer of Hibob, an HRIS platform. Employers are falsely relying on monitoring technology to be the managers' eyes and ears, she said; "Surveillance is not a replacement for leadership."
The technology doesn't always give an accurate perspective of productivity, Staples explained. If a monitoring system takes a screen grab at random points, it may not include all of the employee's productivity, such as phone calls or planning time. Monitoring taking place during set business hours doesn't capture tasks completed outside of the work day. Especially now, as employees' schedules have become more fluid to balance family responsibilities during the day, employers may not get the true picture if they're relying on data from a point in time, she added.
If managers have conversations about expected outcomes, employees don't have to be monitored, Staples said. "Whether you do [the work] at 11 p.m. or 3 p.m., so long as you deliver by the deadline. That's the strongest message," she said. Staples acknowledged that this approach might not work for every role, but for many white-collar, remote positions, it could. "Manage by outcomes versus output," she said.
Sutton countered that employee monitoring promotes a better working environment. Being able to monitor employees at home as if they were in the office gives employees more freedom to work anywhere, he said.
Overall, monitoring remote employees has advantages and risks. Companies considering monitoring should first determine why it is needed, Cate suggested. If it's for a performance assessment or because of suspicion of theft, employers need to use tools targeted for that purpose.
The first critical step for companies is to eliminate the expectation of privacy, Forman added. And, when monitoring, don't go overboard, he said. "Use a scalpel, not a butcher knife."
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¶47,056 CMS encourages non-federal government plans to expand access to telehealth options, prescription drugs during COVID-19 outbreak — AGENCY GUIDANCE,
June 11, 2020 from GEA's HR answers now
The Centers for Medicare & Medicaid Services (CMS) has issued a letter highlighting COVID-19 guidance relevant to non-Federal governmental plan sponsors.
Requirement to cover COVID-19 diagnostic testing. In addition to complying with the COVID-19 diagnostic testing-related requirements under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), CMS encourages all non-Federal governmental plans to offer services related to the treatment of COVID-19 to their members without cost-sharing and without prior authorization or other medical management restrictions.
Relaxed enforcement of time frames. The letter also indicates that on April 28, 2020, the Department of Labor (DOL) issued two notices giving plan participants, beneficiaries, and employers additional time to make critical health coverage and other decisions affecting benefits and to send certain required notices during the COVID-19 outbreak. One of the notices was issued jointly with the Department of the Treasury (Treasury Department) and the Internal Revenue Service (IRS). As stated in guidance issued on May 14, 2020, CMS concurs with the relief specified in these notices.
Thus, between March 1, 2020 and 60 days after the end of the COVID-19 National Emergency, or such other date announced by DOL or jointly by DOL and the Treasury Department/IRS in future notices, CMS will adopt a temporary policy of relaxed enforcement to extend similar time frames otherwise applicable to non-Federal governmental group health plans, and their participants and beneficiaries, under applicable provisions of the Public Health Service Act (PHSA). CMS encourages (but will not require) sponsors of non-Federal governmental plans to provide relief to participants and beneficiaries similar to that specified in the two notices.
Access to telehealth options. CMS also indicates that the use of telehealth and other remote care service options to obtain covered services is vital to combat the spread of COVID-19 by allowing individuals the ability to visit their health care providers from home. CMS strongly encourages all non-Federal governmental plans to expand and promote the use of telehealth and other remote care services by:
- notifying plan participants and beneficiaries of their availability;
- ensuring access to a robust suite of telehealth and other remote care services, including mental health and substance use disorder services; and
- covering telehealth and other remote care services without cost sharing or other medical management requirements.
CMS encourages plans to cover telehealth and other remote care services even if the specific covered services are not related to COVID-19. In addition, section 3701 of the CARES Act amends the laws applicable to high deductible health plans (HDHPs) and health savings accounts (HSAs) to provide temporary flexibility with respect to telehealth and other remote care services. As added by section 3701 of the CARES Act, Code Sec. 223(c)(2)(E) allows HSA-eligible HDHPs to cover telehealth and other remote care services without a deductible or with a deductible below the minimum annual deductible otherwise required by Code Sec. 223(c)(2)(A), for plan years beginning on or before December 31, 2021.
To the extent applicable state or local law prohibits non-Federal governmental plans from making mid-year changes, CMS has encouraged applicable state and local authorities to not take enforcement action against any plan that makes mid-year changes to provide greater coverage for telehealth or other remote care services or for diagnosis or treatment of COVID-19, or to reduce or eliminate cost-sharing requirements for these services. To the extent that plans make these changes, CMS strongly encourages such plans to promptly communicate this information to plan participants and beneficiaries, to ensure that plan participants and beneficiaries can benefit from these changes as soon as possible. CMS will not take enforcement action against any plan or issuer that makes such a modification to provide greater coverage for telehealth or other remote care services, or related to the diagnosis and/or treatment of COVID-19 without providing at least 60 days advance notice as required by PHSA Sec. 2715(d)(4) and final rules issued by the Departments regarding the Summary of Benefits and Coverage.
Prescription drug benefits. Lastly, in the letter, CMS also encourages non-Federal governmental plans that provide prescription drug benefits to lift fill restrictions when appropriate, while also taking into consideration patient safety risks associated with early refills for certain drug classes, such as opioids, benzodiazepines, and stimulants.
The Food and Drug Administration (FDA) monitors the prescription supply chain and provides detail on specific prescription drug shortages at https://www.fda.gov/drugs/drug-safety-and-availability/drug-shortages. CMS recommends that non-Federal governmental plans monitor this website to ensure plan participants and beneficiaries have access to the affected drugs or a therapeutic alternative.
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| | | | Local Area Unemployment Statistics
The Local Area Unemployment Statistics (LAUS) program produces monthly and annual employment, unemployment, and labor force data for Census regions and divisions, States, counties, metropolitan areas, and many cities, by place of residence
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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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