For Employers: Coronavirus and US Safety and Health Law

The coronavirus, and the illness caused by the coronavirus, COVID-19, are dominating headlines, stock markets and daily conversation.  They are also raising many questions—and employers inVirus the U.S. are facing one such critical question:  How do we help ensure the health and safety of our employees?  Squire Patton Boggs helps provide some answers here.

COVID-19 and US Health Insurance – New Regulatory Directives

Coronavirus disease 2019 (COVID-19) is a rapidly spreading global health problem. Over the past week, state and federal regulators have issued guidance and imposed requirements on health insurance companies and managed care plans (health insurers) to broaden and tailor coverage to COVID-19. This alert serves as a guide to assist our clients with understanding the new Ohio and federal regulatory requirements and expectations. Continue Reading

COVID-19 and EU State Aid Rules-The EU considers exceptional measures to give aid to companies in crisis.

Coronavirus disease 2019 (COVID-19) is hurting the world’s economy, through severe disruption of financial markets, supply chains and work forces.

In the EU, member states to varying degrees are contemplating measures to support companies hardest hit by the impact of the virus on the economy, including government loans, tax credits or deferral of tax payments. However, they fear that EU state aid rules might stand in their way. Continue Reading

Coronavirus Resource Center

In December 2019, a new strain of coronavirus emerged in Wuhan, China. The World Health Organization (‘WHO’) has named this strain COVID-19. WHO declared the outbreak a Public Health Emergency of International Concern on 30 January 2020. The Organization for Economic Cooperation and Development said on 3 March 2020 that while the world economy is still expected to grow overall this year and rebound next year it was lowering its forecasts for global growth in 2020 by half a percentage point, to 2.4% and said the figure could go as low as 1.5% if the virus lasts long and spreads widely.  The BBC reported on March 5, 2020 that as at the beginning of March, 2020, there have been over 90,000 confirmed cases of infection globally and cases continue to grow across more than 50 countries. In addition to the “considerable human suffering” the virus has wrought, with more than 3,000 deaths worldwide, the OECD has said that, “Global economic prospects remain subdued and very uncertain.”

We have set up a dedicated resource center for business on the legal, regulatory and commercial implication of Coronavirus COVID-19.  You may access it here.

Advisory Regarding Coronavirus Disease 2019 (COVID-19) Legal Issues in the US

While the coronavirus remains a developing situation, it has begun affecting the United States in major ways. With cases now reported throughout the U.S., every organization should have a plan of action in place concerning the coronavirus. While every business faces unique considerations, the following guidance should be considered as organizations are working to address matters relating to employment, customer service, and other issues .

Familiarize yourself with state and local paid sick leave laws. Many U.S. states and municipalities now require that employers provide paid time off to employees to address their own illnesses or that of their family members. If you have not done so already, be sure that your policies comply with any state and local requirements, and train managers on your paid sick leave policy in the event they receive calls from employees seeking treatment for themselves or family members infected with the virus, or missing work because their place of business or children’s schools or daycares are closed due to contagion, or because businesses are closed due to a declaration of public health emergency. However, these laws generally do not provide paid time off or job protection to employees staying home simply to avoid public places where they might contract the virus. Moreover, if many of your employees already have reached or exceeded accrued paid leave, it may be prudent to consider awarding a small additional pool of leave or temporarily implementing a more lenient remote working arrangement.

Remember the FMLA and similar state laws. U.S. employers with 50 or more employees are required to provide eligible employees with up to 12 weeks off if they or a parent, spouse, or child experiences a serious health condition. “Serious health condition” can include a period of inpatient care – such as a one-night stay in the hospital – or incapacity of three consecutive days requiring continuing treatment by a health care provider. Thus, the FMLA often would protect leave taken by an employee due to coronavirus exposure. Moreover, even when an employee or employer is not covered by the FMLA, many states have unique laws that track the FMLA, but which cover broader group of employers and employees. Therefore, employers should be prepared to notify employees of their eligibility to take FMLA leave if infection with the virus results in inpatient treatment or extended illness of the employee or their spouse, parent, or child and, even if the FMLA does not apply, employers should ensure they understand any other applicable laws that may create similar obligations.

Familiarize yourself with ADA limitations. Extended bouts of illness may constitute a disability under the Americans with Disabilities Act if it substantially limits the employee from performing a major life activity, such as respiration. Job restructuring or modification or unpaid leaves of absence after paid leave periods are exhausted may be required as a reasonable accommodation of an employee’s disability status. Although the ADA provides employers some discretion to assess whether an employee poses a direct threat to others, exercise caution before making blanket determinations that mildly symptomatic employees who have not been confirmed infected pose a serious safety risk warranting barring them from the workplace. Furthermore, beware of conducting health inquiries or examinations that may constitute prohibited medical examinations, such as taking employees’ temperatures to check for signs of fever and possible infection.

Review your wage payment obligations. Non-exempt employees must be paid for all hours worked and their pay can be docked for absences, but salaried, exempt employees ordinarily must be paid for all workweeks in which they perform any work. If employers close the place of business for a partial workweek because of fears of contagion but employees are otherwise ready and available to work, exempt employees must nonetheless be paid for the full workweek. However, if an exempt employee fails to work for one or more full days out of fear of contagion (but does not utilize time provided under a bona fide sick leave or paid time off bank), the employer may take deductions from that exempt employee’s pay without losing the exemption. For employees already on travel who may be detained in foreign cities for screening, be sure to confirm whether that time is compensable.

Evaluate business travel needs and postpone non-essential travel. As of March 5, 2020, the CDC advised against nonessential travel to China, South Korea, Italy, and certain other countries. It also has recommended enhanced precautions against travel to several other areas, including Japan. In keeping with your obligations under the General Duty Clause of the Occupational Safety and Health Act (OSHA) to provide a safe workplace, postpone all non-essential business travel to these regions, and evaluate the necessity of all other travel until the virus is controlled. If an employee does report contracting the coronavirus while traveling work, note that OSHA has deemed the coronavirus a recordable illness subject to reporting requirements.

Encourage wellness, including remaining at home when feeling unwell and reminders of important hygienic concepts. Employees should be encouraged to stay home when they are ill, regardless of the cause of the illness. If managers are reported to encourage employees to continue working even when sick, consider disciplinary steps. Post reminders to wash hands thoroughly, distribute hand sanitizer, and reinforce appropriate hygiene measures to reduce the spread of all winter bugs. Consider adjusting your processes to avoid nonessential close contact between employees while they are performing day-to-day job duties.

Consider Industry Guidance. Regulatory bodies or similar organizations already have provided guidance concerning many industries as they prepare for the coronavirus. For example, the Centers for Medicare & Medicaid Services have provided guidance for nursing homes and hospitals, and the Centers for Disease Control and Prevention have provided detailed guidance with specific advice applying to a variety of industries (including organizations engaging in retail, service, and manufacturing ). Although much of this guidance is nonbinding, organizations should strive to follow applicable government guidance, and a failure to do so could create potential third party liability in certain situations.

Telecommuting.  Take steps to prepare for employees working remotely more often. For example, ensure that laptops are available for employees who may be able to use them to work remotely, encourage employees to take home each day any laptops or electronic devices that they need to work remotely (subject to applicable security protocols), and consider reminding employees about policies and procedures for remote working and remote access. If non-exempt employees are not accustomed to telework or telecommuting arrangements, be sure they understand how to record their work time to be properly compensated for all hours worked.

Carefully review collective bargaining agreements and federal and state notification requirements. If you employ a unionized workforce and plan to close facilities due to illness, review the collective bargaining agreements in place with the unionized workers to ensure that all contractual prerequisites have been satisfied. Likewise, if supply shortages due to slowing international imports result cause you to conduct temporary layoffs, review any CBAs and federal and state laws regarding notifying employees, their representatives, and/or government authorities about the workforce reductions.

Keep your sanity.  Despite the global concern over the illness, there still are relatively few confirmed U.S. cases of the coronavirus as compared to other illnesses. Employees exhibiting common cold symptoms are unlikely to be infected with the coronavirus, so be vigilant against improperly making disability-related inquiries or requiring medical examinations of employees, and against harassment or treatment of such employees as more seriously impaired (regarded as disabled) than they are. Because of the close connection between the illness and the region where it originated, also be alert to race- or national origin-based remarks that could be perceived as harassing. Be particularly cautious against overzealously removing job duties from employees or attempting to quarantine mildly symptomatic workers where there is no substantive reason to determine that they present a serious direct threat to others, particularly outside higher risk industries like healthcare, airlines, and mortuary services. Consult with counsel before implementing any steps that could be perceived as adverse.

Employers have weathered similar storms during the H1N1 and MERS outbreaks and through many influenza strains. Principles employed in past (perceived) pandemics apply here as well.

 

Saved by the Gel?

UPDATE: Saved by the Gel…again? Since our original post, the UK’s Competition and Markets Authority (CMA) issued a statement March 5 that it will be monitoring reports of changes to sales and pricing practices for coronavirus-related products. The CMA will consider direct enforcement action in appropriate cases if it has evidence that businesses have broken competition or consumer protection law such as by charging excessive prices.

The Chief Executive of the CMA, Andrea Coscelli, urged retailers to “behave responsibly throughout the coronavirus outbreak and not to make misleading claims or charge vastly inflated prices.”  Moreover, Coscelli reminded “members of the public that these obligations may apply to them too if they resell goods, for example on online marketplaces.” The CMA is currently assessing whether it should advise the government to consider taking direct action to regulate prices.

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Ohio Revises Definition of Ambulatory Surgical Facilities, Potentially Expanding Application of Licensure Requirements

Ohio recently revised the definition of an Ambulatory Surgical Facility (ASF), as part of the new 2020/2021 general operating budget legislation. The change expanded the ASF definition, potentially triggering ASF licensing requirements for some facilities not previously subject to such requirements.

Under the revised definition, an ASF includes (1) all facilities that provide outpatient surgical services not within a building providing inpatient services, (2) facilities that provide outpatient surgical services within a building that also provides inpatient care, if the entity providing outpatient surgical services is not operated by the same entity that operates the remainder of the building, or (3) any facilities that hold themselves out to be an ASF.

Prior to this change, any facility offering outpatient surgical services within a building that also offered inpatient services was not included in the definition of an ASF, regardless of entity affiliation. Under the new definition, however, a facility providing outpatient surgical services will be considered an ASF if it is located within an inpatient care building but the outpatient surgical portion is not operated by the same entity offering the inpatient services. Since Ohio requires ASFs be licensed by the Ohio Department of Health, this change means some previously unlicensed facilities may need to obtain ASF licensure.

These changes went into effect on October 17th, 2019. Organizations operating outpatient surgical facilities in Ohio should review their operating arrangements and make sure they are compliant in light of the revised definition.

The Illinois Biometric Information Privacy Act (“BIPA”): When Will Companies Heed the Warning Signs?

The Illinois Biometric Information Privacy Act (“BIPA”) went into effect in 2008 and has been a steady source of litigation ever since.  BIPA regulates how “private entities” collect, use and share biometric data and imposes certain security requirements.  The stated intent of BIPA was to address the heightened risk of identity theft associated with the processing of biometric data. The legislature’s findings state that, “unlike other unique identifiers that are used to access finances or other sensitive information,” when biologically unique data is compromised, “the individual has no recourse” because the individual cannot change these identifiers.  See our analysis here summarizing the obligations BIPA imposes, the current state of BIPA litigation, and what steps businesses can take to reduce litigation risks. 

Timeliness for Suits Filed Under the Medicare Secondary Payer Act (“MSPA”)

In MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., the 11th Circuit was tasked with answering the question of whether 42 U.S.C. § 1395y(b)(2)(B)(vi) imposes a timeliness requirement with which the government or a private entity must comply as a prerequisite to filing suit to seek reimbursement for payments that it made on behalf of a Medicare beneficiary. The Medicare Secondary Payer Act (the “Act”), codified in 42 U.S.C. § 1395y, states in pertinent part:

“Claims-filing period. Notwithstanding any other time limits that may exist for filing a claim under an employer group health plan, the United States may seek to recover conditional payments in accordance with this subparagraph where the request for payment is submitted to the entity required or responsible under this subsection to pay with respect to the item or service (or any portion thereof) under a primary plan within the 3-year period beginning on the date on which the item or service was furnished.”

42 U.S.C. § 1395y(b)(2)(B)(vi).

Here, the case involved a car wreck on April 29, 2012. One of the individuals injured in the accident was a Medicare beneficiary. The beneficiary in question received her benefits from a Medicare Advantage Organization (“MAO”) that later assigned its claims to the appellant, MSPA Claims 1. The second party involved in the accident had car insurance with the appellee, Kingsway Amigo Insurance. Ultimately, the Medicare beneficiary received $21,965 for medical treatments from its Medicare Advantage plan. The Medicare beneficiary also settled a personal-injury claim with the auto insurer for $6,667. After the settlement, MSPA received the MAO’s recovery rights and sought reimbursement from the auto insurer for the $21,965 that the MAO had already paid. When the auto insurer refused to pay, MSPA took the dispute to court.

The district court ruled in favor of the auto insurer, holding that MSPA’s claim was barred because it did not comply with the three-year requirement found in the claims-filing provision of § 1395y(b)(2)(B)(vi). On appeal, the 11th Circuit reversed holding that the Act does not “erect a separate bar that private plaintiffs must overcome in order to sue.” In other words, by permitting MSPA to sue after three years had elapsed since the MAO had paid claims, the 11th Circuit vitiated a timeliness requirement with which a private entity must comply as a prerequisite for seeking reimbursement for payments that it made on behalf of a Medicare beneficiary. Therefore, compliance with the “3-year period” language found in § 1395y(b)(2)(B)(vi) is not a precondition to filing suit.

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