Legal Updates – May 2021

Employees Have Been Vaccinated, Now What?

Now that over half of adults in the United States have received their first dose of the COVID-19 vaccine, the Centers for Disease Control and Prevention (CDC) released new guidelines saying that fully vaccinated employees may safely gather indoors without wearing a mask.  The CDC is still advising that workplaces maintain safety procedures.  Though the CDC’s guidance on COVID-19 is not a law or regulation, various agencies and public health authorities have adopted some or all of the CDC recommendations.  Consequently, employers should consult the laws and regulations in their jurisdictions to understand requirements versus recommendations and guidance.  As is everything with COVID-19, the advisements are constantly changing.  Employers should closely track developments and make adjustments to their own policies as the risks associated with COVID-19 change over time.

The CDC advises that people are considered fully vaccinated two weeks after either their second dose in a two-dose series, like the Pfizer or Moderna vaccines, or after a single-dose vaccine, like the Johnson & Johnson vaccine.  An individual is not fully protected until two weeks have passed since a person’s last shot and should still observe prevention measures until they are fully vaccinated.

Once an individual is fully vaccinated:

• They can gather indoors with fully vaccinated people without wearing a mask, if permitted by their employer or other establishment.
• They can gather indoors with unvaccinated people from one other household without masks, unless any of those people or anyone they live with has an increased risk for severe illness from COVID-19.
• If they have been around someone who has COVID-19, they do not need to stay away from others or get tested unless they have symptoms or their employer mandates it.
• If they live or work in a group setting and are around someone who has COVID-19, they should still stay away from others for 14 days and get tested, even if they do not have symptoms. This recommendation would apply to someone who lives or works in a correctional or detention facility or group home.

The CDC recommends that fully vaccinated individuals:

• Should still take steps to protect themselves and others in many settings, like wearing a mask, staying at least six feet apart from others, and avoiding crowds and poorly ventilated spaces. These precautions should be taken whenever:
  • In public;
  • Gathering with unvaccinated people from more than one other household;
  • Visiting with an unvaccinated person who is at increased risk of severe illness or death from COVID-19 or who lives with a person at increased risk.
• They should still avoid medium and large gatherings.
• They should delay domestic and international travel, and if traveling, follow CDC requirements and recommendations (more on this below).
• They need to watch out for symptoms of COVID-19, especially if they have been around someone who is sick. If showing symptoms of COVID-19, they should get tested and stay home and away from others.
• They should still follow safety guidance in the workplace.

Travel

The CDC also recently updated its Guidance on Domestic Travel During the COVID-19 Pandemic.  According to the CDC’s updated guidance, people who are fully vaccinated can travel safely within the United States.

During Travel

The CDC recommends that fully vaccinated travelers still wear a mask over their nose and mouth while traveling.  Masks are required by federal law on airplanes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in the U. S. transportation hubs such as airports and stations.

Fully vaccinated individuals should also avoid crowds and physically distance, staying at least six feet from anyone who is not traveling with them, and should continue good hygiene practices, washing hands often or using hand sanitizer (with at least 60% alcohol) according to the most recent guidance.

After Travel

The CDC advises that vaccinated travelers should self-monitor for COVID-19 symptoms, and to self-isolate and get tested if they develop symptoms.  They must also abide by state and local requirements, even if it differs from the CDC’s guidance.  The CDC does not advise that vaccinated individuals self-quarantine after travel.

As the threat of COVID-19 is continually changing, so are the recommendations.  We encourage you to check the CDC website daily and to follow its latest guidance and recommendations.

 

Is Telework Here to Stay?  How Should Employers Handle Telework Requests?  What Do Employers Need to Do to Prepare for Remote Work?  Your Questions Answered.

For more than a year as the coronavirus pandemic threatened the health and safety of workers who gather, many American workers have been working from home, whether it was their first choice or not.  Now, as more people become vaccinated and restrictions are lifting across the country, employers are beginning to call employees back to the office.  However, many employees have become accustomed to working from home and enjoy the remote work.  As such, employers may see an uptick in requests to work remotely and need to be prepared to respond to these requests.

The pandemic has shown that telework is possible.  While some organizations intend to transition back to the office many have seen improved productivity with their remote workers and expect to maintain this option long-term.  Not only has it been beneficial for many employers, a recent study conducted by Harvard Business School Online showed that some employees prefer to work remotely.  The survey showed that 81 percent of respondents either do not want to go back to the office or would prefer a hybrid schedule going forward.  While 27 percent hope to work remotely full time, 61 percent would like to work 2-3 days a week from home.  One in three employees reported that they felt their overall performance and quality of their work had improved in the remote work environment, and the same percentage indicated that they are able to focus more at home than in the office.

Given the increased prevalence of remote work and its popularity, employers need to be prepared to respond to requests for continued telework once they begin to bring employees back in person.  Under the Americans with Disabilities Act (“ADA”), employers must provide “reasonable accommodations” to employees with disabilities that allow the employee to perform the “essential functions” of their jobs, without imposing an “undue hardship” on the employer.  Prior to the COVID-19 pandemic, many employers rejected requests for telework, even when sought as a reasonable accommodation.  Although many employers may be allowing employees to work from home now because of the pandemic, they are not required to grant requests to work from home after the workforce re-opens.  As the Equal Employment Opportunity Commission (“EEOC”) recently explained, “the fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”  As always, employers must engage in an interactive process to determine whether a request for telework is a reasonable accommodation.  As part of the interactive process, employers should consider how the employee performed in the work from home environment when responding to a request to continue working from home after the pandemic.  Employers are likely to see an increase in requests to stay remote from non-disable employees and they need to be mindful of responding to such requests consistently to avoid claims of discrimination.

If an employer decides to allow telework, whether as a reasonable accommodation or for those who simply prefer working remotely, they should set up policies so that employees know what to expect and what is expected of them.  When drafting telework policies, employers should consider the following:

• Is the arrangement temporary or ongoing?
• Will the employee be 100% remote or partially in-office?
• Are there strategic times employee must be in the office or present remotely?
• How will mail delivery or meetings be handled?
• When will manager “check-ins” occur?
• How will security/privacy of company information be handled?
• How will performance be monitored, and expectations evaluated in the remote environment?
• What does an employer need to do to be compliant with wage-and-hour laws, including timekeeping, and how could the employer or employee break compliance?

When managing an employee’s performance, employers and managers should consider:

• How to keep employees engaged;
• How to maintain morale;
• How to provide clarity about duties and responsibilities;
• Whether to pay extra for those employees who must go into the office;
• How to ensure compliance with company policies; and
• How/whether to monitor substance use or abuse.

There is a lot for employers to consider as we head into a “new normal.”  Employers should decide now how they will handle telework requests, both as a reasonable accommodation and as a preference request, so that they are prepared with uniform answers.  It is important that employers respond consistently to these requests to avoid claims of discrimination.  It is also a good time to establish policies specific to telework, so employers are prepared when faced with requests to continue telework.

 

What Employers Need to Know about the American Rescue Plan Act of 2021 COBRA Subsidy

On March 11, 2021, President Biden signed the $1.9 trillion COVID-19 relief package, American Rescue Plan Act of 2021 (“ARPA”), into law.  ARPA includes a provision for 100% subsidized COBRA continuation coverage for employees and family members who experience a loss of group health plan coverage due to the employee’s involuntary termination or reduced hours of employment during the period from April 1, 2021 through September 20, 2021.  On April 7, the Department of Labor’s Employee Benefits Security Administration (the “EBSA”) released model notices and FAQs clarifying certain aspects of the changes ARPA made with respect to COBRA continuation, which can all be found here.

The COBRA subsidy provisions of ARPA have three major components:

1. It provides up to six months of fully subsidized COBRA premiums, along with certain special election rights for eligible COBRA qualified beneficiaries;
2. It imposes two new notice requirements on employers; and
3. Provides for a corresponding tax credit for the company or entity paying for the COBRA premium subsidy.

The subsidy is available only to “Assistance Eligible Individuals,” which ARPA defines as COBRA qualified beneficiaries who:

• Had a qualifying event that is a reduction in hours or an involuntary termination of employment;
• Elect COBRA coverage;
• Are not eligible for coverage under another group health plane (i.e., under a new employer’s health plan or under a spouse’s plan); and
• Are not eligible for Medicare.

However, it should be noted that an individual would no longer be eligible for COBRA, nor this premium subsidy, if the individual becomes eligible for coverage under another group health plan, such as through another employer or Medicare.  Therefore, although the premium subsidy requirement is for up to a six-month period, if the Assistance Eligible Individual becomes eligible for other coverage, the employer’s obligation to pay for their COBRA premiums will end at that time, even if it is prior to the end of the Subsidy Period.

To offer additional assistance to employers and plan administrators, the Department of Labor (“DOL”) issued Model Notices.  While employers are not obligated to use the Model Notices, using them shall be taken as good faith compliance with ARPA’s notice requirements.

• Model General Notice and COBRA Continuation Coverage Election Notice. This model notice serves as the general COBRA election notice.  Individuals who experience any COBRA qualifying event from April 1, 2021 through September 30, 2021, should be provided with this notice.  This model notice includes information related to the COBRA Subsidy, and other rights and obligations under ARPA, as well as all of the information required in an election notice required pursuant to the general COBRA notice requirements.
• Model Notice in Connection with Extended Election Period – This model notice satisfies the requirement under ARPA that individuals who are eligible for the COBRA Subsidy or would be eligible if they had elected and/or maintained COBRA coverage before April 1, 2021, be notified of the extended COBRA election period and their potential eligibility for the COBRA Subsidy. This model notice must be provided to such individuals by May 31, 2021.
• Model Alternative Notice – For issuers, employers, and group health plans that are exempt from COBRA but are still subject to similar state law continuation coverage rules (i.e., mini-COBRA laws), this model notice satisfies the requirement that individuals who experience a qualifying event at any time from April 1, 2021 through September 30, 2021 are notified of their potential eligibility for the COBRA Subsidy.
• Model Notice of Expiration of Premium Assistance – This model notice satisfies the requirement that assistance will expire. This notice should be sent between 15 and 45 days before an individual’s COBRA Subsidy expires.  This notice does not have to be provided if an individual’s premium assistance ceases due to the individual gaining other coverage.
• Summary of COBRA Premium Assistance Provisions under the American Rescue Plan Act of 2021 – This summary provides (1) information to individuals of the eligibility requirements for premium assistance, (2) a form for individuals to complete and submit to their employer to request treatment as an eligible individual, and (3) a form for individuals to complete and provide to the employer to notify the employer that the individual has gained other coverage and is no longer eligible for premium assistance. This summary should be provided with all the model notices promulgated by the DOL, except the Notice of Expiration of Premium Assistance.

Employers should promptly integrate these model notices, along with the summary, into their COBRA administration process for purposes of complying with ARPA’s requirements for the COBRA subsidy.  Employers should identify qualified beneficiaries, track periods of premium assistance, timely send the required notices and maintain documentation in order to claim full reimbursement of the COBRA subsidy via payroll tax credits.  Employers who utilize a third-party administrator for COBRA administration should continue coordination with the administrator to ensure compliance with COBRA and ARPA.  Meanwhile, additional guidance from the Internal Revenue Service is still anticipated, which will provide the specific and necessary details for employers to obtain reimbursement for the costs of the COBRA subsidy.

 

President Biden Signed an Executive Order to Raise the Minimum Wage to $15 for Federal Contractors

On April 27, 2021 President Biden signed an Executive Order that will raise the minimum wage for federal contractors and tipped employees working on government contracts to $15 an hour.  The increase from $10.95 an hour will go into effect January 2022 and all agencies must incorporate the $15 minimum wage into new contracts by March 30, 2022.  The last time the minimum wage was increased for federal contractors was in 2015 by Executive Order signed by President Obama.

The $15 wage rate applies to the following types of federal contracts:

• Procurement contracts for services or construction;
• Service Contract Act (“SCA”) contracts;
• Concession contracts;
• Contracts related to federal property and the offering of services the general public, federal employees, and their dependents; and
• The wages of workers under such contracts are governed by the Fair Labor standards Act, the SCA, or the Davis-Bacon Act.

The executive order does not apply to:

• Grants;
• Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act; or
• Any contracts specifically excluded by the implementing regulations.

Takeaways for Employers

The new minimum wage may not be an issue for some contractors because the contractor is already paying at or above $15 per hour, the contractor does not have a covered contract, or many of its employees are not working “on or in connection with” a covered federal contract.  A starting point for employers will be to determine if a contractor has or anticipates entering into a covered contract and whether the employees are likely to be providing work directly or indirectly related to such contract are or will be earning $15 per hour by January 30, 2022.