March 29th, 2021 by Niara Stitt, Law Clerk at Freking Myers & Reul
February 1st, 2021 by Mark Napier
On March 11, 2021, President Biden signed the American Rescue Plan Act (ARPA) into law, intending to address and alleviate the economic impact of the COVID-19 pandemic. Of ARPA’s provisions, the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) was modified and expanded to provide free coverage under COBRA from April 1, 2021 until September 30, 2021.
ARPA’s provisions related to COBRA are largely identical to requirements existing before ARPA was passed, especially related to eligibility and coverage windows. Like COBRA, ARPA covers employees terminated from employment or subjected to decreased work hours, and excludes employees who resign or are terminated for “gross misconduct.” Similarly, ARPA does not extend beyond the pre-existing 18 to 36 month coverage window.
The COBRA assistance program is made to be seamless with previous operations: if an enrollee was or is eligible for COBRA, their premium payments are to be considered paid automatically. The program must be offered to both eligible beneficiaries enrolled in COBRA and non-enrolled but eligible individuals. Non-enrolled eligible recipients include 1) individuals who previously had a right to COBRA coverage, and 2) individuals who previously used COBRA and discontinued coverage before April 1, 2021.
As with regular COBRA coverage, the ARPA requires employers to provide eligible employees with notice of the extended coverage. The Department of Labor will issue guidance for identifying eligible enrollees, as well as a model notice for employers to use when notifying eligible enrollees by April 10, 2021, and employers must give notice to eligible enrollees by May 30, 2021. Because of this deadline, non-enrolled individuals eligible for COBRA may have their coverage retroactive back to April 1, 2021.
Federal COBRA applies to employers with 20 or more employees, while state-level continuation coverage (often called “mini COBRA”) applies to employers with fewer employers. The ARPA extends free coverage to those receiving benefits under a mini-COBRA program.
This extension should encourage workers to seek coverage under COBRA, or mini-COBRA for the next several months, especially because coverage may be retroacted to April 1. If you believe you are entitled to COBRA coverage, your former employer must notify you of your eligibility by the end of May. For more information about the American Recue Plan Act, its impact on COBRA, and upcoming guidance from the U.S. Department of Labor, click here.
December 29th, 2020 by Laura Wilson
NY Attorney General Letitia James, a Democrat, released a report this past Thursday that criticized NY Governor Andrew Cuomo, also a Democrat, for grossly underreporting the New York state nursing home COVID-19 deaths by the thousands. A few hours after this report, NY state health officials added more than 3,800 nursing home resident deaths to their previous tally.
The nursing home owners and operators in this country had plenty of warning to prepare for the pandemic coming to the US. In late Feb. 2020, a Kirkland, WA long-term care facility reported many of its residents and staff had COVID-19 symptoms and the first US resident to die of COVID was a resident in its nursing home. This should have been an immediate wake-up call to all nursing home owners and operators throughout the country that a foreseeable pandemic was coming and they needed to prepare with more PPE, staffing, and infectious disease safeguards.
The standard model for the safe operation of a nursing home is prepare, assess, plan, implement, and monitor. If a nursing home correctly follows these steps then there is no negligence and no lawsuit.
But, many nursing home owners and operators in this country who grossly failed to protect their residents and their direct care employees from COVID-19 were wholly unprepared. They knew the pandemic was coming, but they did business as usual. These same nursing homes for years failed to comply with recognized standards of care and regulations with respect to infectious diseases. Sadly, their noncompliance was exposed by COVID-19.
And for the final insult to families who lost loved ones due to nursing home noncompliance, many state legislatures bought the lies by the nursing home owners and operators, and their insurers, that this was all unavoidable, and they must have immunity from suits related to COVID. Shame on the legislators like in Ohio who bought into these lies and granted immunity from very legitimate negligence lawsuits.
November 19th, 2020 by Laura Wilson
The arrival of the first two COVID-19 vaccines from Pfizer and Moderna (and news that a third vaccine from AstraZeneca may be close behind) is rare good news in the on-going fight against the global Coronavirus Pandemic. As vaccine distribution has begun throughout the U.S., and shots are being given to certain high risk groups including healthcare workers and nursing home residents, employees have begun to ask the question: Can my employer require me to get the vaccine? The short answer is yes, with certain exceptions.
While there is no law or regulation that directly addresses this issue, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the nation’s non-discrimination laws, recently issued guidance addressing mandatory COVID-19 vaccination policy issues. The EEOC guidance suggests that employers may require their employees to get a COVID-19 vaccine once they become available as a condition of remaining at or returning to work. But there are exceptions for employees who do not to get the vaccine due to either a medical disability or because of a sincerely held religious belief.
Because some employees may be unable to receive the vaccine due to medical conditions, before an employer can exclude that worker from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. In other words, the employer must attempt to accommodate an employee who cannot receive the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker. Instead, the employer has to review and evaluate whether other there are other accommodations that can be made, such as permitting the employee to work, or continue to work, remotely, or having the employee work in another location on-site where the threat is reduced or eliminated.
Employers also must accommodate employees whose sincerely-held religious beliefs prevent them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace. But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee. Instead, the employer must decide if any other accommodations can be provided to permit the employee to continue working, such as remote work or work in an alternate location.
The COVID-19 pandemic continues to raise unique questions and challenges for workers. We are working hard to stay up to date on the latest changes to the law and regulations, and we are here to help with your employment questions and issues.
September 15th, 2020 by Laura Wilson
The Ohio Department of Job and Family Services (ODJFS) announced today that it has learned of a potential scam targeting current and past recipients of Pandemic Unemployment Assistance. The notifications appear to be from the Ohio Department of Job and Family Services, and contain the agency’s logo, but they are not legitimate. They instruct those targeted to click on a link to obtain a pandemic stimulus benefit. The link requests personal information. ODJFS WARNS –DO NOT CLICK ON THE LINK OR PROVIDE PERSONAL INFORMATION IN RESPONSE TO THESE NOTIFICATIONS. ODJFS does not send these types of communications. ODJFS also warns all Ohioans to beware of scams using texting or emails to obtain your personal information.
Anyone who receives an email that they suspect may be a phishing attempt should not click on any links. Individuals who have received this notification are encouraged to report it to the Ohio Attorney General’s office at 1-800-282-0515 or ohioprotects.org.
For more information click HERE.
The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of enforcing workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA). The law requires employers to provide reasonable accommodation for disabled employees to do their jobs. Recent guidance from the EEOC suggests that employers who allowed employees to work from home to navigate stay at home orders during the pandemic may not be able to reject out of hand requests from their disabled workers to work from home even after the pandemic is over.
Under the ADA, if a reasonable accommodation is needed and requested by a disabled worker, the employer must provide it unless it would pose an “undue hardship,” meaning significant difficulty or expense. An employer can choose among effective accommodations and does not have to provide the exact accommodation requested by the worker.
For years many employees who requested to work from home as a reasonable accommodation under the ADA faced stark opposition from employers who claimed that allowing employees to work from home would decrease productivity or otherwise cause an undue financial or other burden on the business. So employees’ requests to work from home were often denied.
Over the past six months, many employers have allowed all or most of their employees, not just those workers with a disability covered by the ADA, to “telework” or work from home during the COVID-19 pandemic. These remote work arrangements helped many business stay open throughout the stay at home orders issued in many states this spring and summer. And, “teleworking” has been considered a reasonable accommodation during the pandemic for many disabled workers, especially those who are at higher risk of contracting COVID-19. See the EEOC’s Pandemic Preparedness in the Workplace and ADA.
The question now is whether the decision to send workers home or let them telework means that employers are required to provide similar accommodations for employees with disabilities in the future? The answer, according to the EEOC’s most recent guidance is, maybe. A disabled employee who was working from home because their employer shut down or assigned employees to work from home during the COVID pandemic is not automatically entitled to keep working from home as an accommodation once the employer recalls its workers to the office or worksite. The EEOC guidance says that:
If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
But the guidance also notes that the need for telework is a fact-specific determination. So assuming all the requirements for telework as a reasonable accommodation are satisfied, the temporary telework experience brought on by the COVID pandemic could be used to show that an employee’s renewed request to work from home once the workplace reopens is reasonable and the employee can perform the job without an undue hardship to the company. In other words, the period of allowing telework because of the COVID-19 pandemic could serve as a trial period that establishes whether or not an employee with a disability can satisfactorily perform all essential functions of the job while working remotely. According to the EEOC, the employer should consider any new requests for telework in light of this information. As with all accommodation requests, the employer is required to engage in a flexible, cooperative interactive process with its employees to determine what reasonable accommodation can be made under the ADA. After the COVID pandemic and the reality that workers can effectively and efficiently perform many jobs working from home or other remote locations, employers should understand that telework is a reasonable accommodation.
For the most recent EEOC guidance see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws