The American Rescue Plan Act of 2021 and COBRA

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The American Rescue Plan Act of 2021 (the Act) became effective on March 11, 2021. It provides six months, from April 1, 2021 – September 30, 2021, of free health care coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) to laid off employees and their covered dependents.

The Act applies to employees who have been laid off, i.e., involuntary termination or involuntary reduction in hours, over the past year and who would have been covered by COBRA at the time of their termination. Typically, upon termination, employees have 60 days from receiving notice of COBRA eligibility to sign up for the benefit. Under the Act, eligible employees are those who are already enrolled in COBRA, did not elect COBRA at the time it was available to them, or elected COBRA at the time it was available to them but let the coverage lapse. Coverage applies to individuals whose COBRA coverage expires, or would have expired had they elected it or did not allow it to lapse, during or after April 1, 2021 – September 30, 2021. This means that individuals are not receiving an extension to their 18-month COBRA period under the Act—generally, it is applicable to employees who were eligible in November 2019 or later. Notably, if a COBRA period starts after April 1, 2021 or ends before September 30, 2021, this subsidy will be provided for fewer than six months.

Under the Act, Employers will receive reimbursement for the premium amounts from the federal government as tax credits. Employees who qualify may sign up through their previous employer.

Individuals who begin working for a new employer and receive health insurance coverage through that new employer or those who receive Medicare, prior to the September 30, 2021 provision end date, will lose coverage under the Act.

Employers are required to send former employees COBRA notices of eligibility. These notices will provide employees with a notice of their right to the new subsidy, when their subsidy would end, an enrollment window, contact information for additional information, and the individual’s obligation to notify the plan when he or she becomes eligible for healthcare through a new employer or Medicare. The notices will need to be distributed by employers within 60 days of April 1, 2021. The Department of Labor will provide model notices by April 10, 2021.

For more information, visit https://www.lerchearly.com/services/employment-labor.

Families First Coronavirus Response Act Tax Credit Extension in 2021

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The Families First Coronavirus Response Act (FFCRA) sunsetted on December 31, 2020, but some provisions remain active.

On Sunday, December 27, 2020, former President Donald Trump signed a bipartisan pandemic relief bill into law. Because the leave provisions of the FFCRA were not extended employers were no longer required to provide leave under the FFCRA in 2021.

However, as part of this relief package the tax credit for FFCRA leave, which reimburses employers for FFCRA leave taken by employees, was extended through March 31, 2021. Therefore employers who voluntarily choose to provide employees with FFCRA leave may do so until March 31, 2021 and receive tax credit for the leave. Of course, employers may instead choose to adopt their own policies to grant paid or unpaid leave for COVID-related purposes or simply allow employees to use their existing leave.

If employers do choose to provide FFCRA through March 31, 2021 they should be aware that employees are not granted FFCRA leave in addition to what they received in 2020. Thus if an employee has exhausted 80 hours of paid sick leave and 12 weeks of expanded family medical leave in 2020 they will not receive additional leave in 2021. Moreover, there are no changes to eligibility, purposes of leave, caps on usage, or documentation requirements.

Lastly, state or local laws may impose additional requirements for COVID-19 related leave and employers are advised to ensure that they act in compliance with any applicable laws.

For more information, contact one of our employment attorneys.

COVID-19 in the Workplace – Employer Recording and Reporting Requirements

Employers may have obligations to record and report cases of COVID-19 in the workplace.

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Recording Requirement

The Occupational Safety and Health Administration’s (OSHA) revised enforcement memorandum provides that under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19;
  2. The case is work-related*; and
  3. The case involves one or more general recording criteria*.

*An illness is work-related if an event or exposure in the work environment either causes or contributes to a condition or significantly aggravates a pre-existing illness. This is presumed for illnesses or injuries resulting from events or exposures occurring in the work environment unless one of the narrow exceptions in federal regulations apply.

*The general recording criteria includes conditions in which the illness or injury results in either: death, absences from work, restricted work or transfer to another position, medical treatment (beyond first aid), or loss of consciousness. If one of these conditions is not met, an employer must also consider a case to meet the general recording criteria if it involves a significant illness or injury diagnosed by a physician or other licensed health care professional.

There are three forms for employers to fill out under the recording requirement—this includes an injury and illness incident report (Form 301), a log (Form 300), and a summary (Form 300A).

Notably, OSHA has indicated that it is exercising enforcement discretion regarding work-relatedness in the context of employee COVID-19 illness. OSHA acknowledges that because of the “nature of the disease and ubiquity of community spread, in many instances it remains difficult to determine whether a COVID illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Therefore, recording a COVID-19 illness does not necessarily mean that the employer violated an OSHA standard.

Additionally, pursuant to existing regulations, employers with 10 or less employees as well as employers in low hazard industries do not have recording obligations; instead, they are only required to report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. A complete list of the industries which are exempt from OSHA’s recording requirements can be found here.

Importantly, as stated above, even if an employer is exempt from OSHA’s recording requirements it must still determine work-relatedness for purposes of OSHA’s reporting requirements for any employees who received in-patient hospitalization treatment due to COVID-19.

Additional Guidance

In determining whether an employer has complied with this obligation and made a reasonable good faith determination of work-relatedness, Compliance Safety and Health Officers (CSHO) should apply the following considerations:

  • The reasonableness of the investigation. Employers are not required to undertake extensive medical inquiries. It is typically sufficient for an employer to use the following steps when learning of an employee’s COVID-19 illness: (1) ask the employee how he believes he contracted COVID-19; (2) ask the employee about his activities in and out of work that may have led to the COVID-19 illness (while being mindful of employee privacy); and (3) review the his work environment for potential exposure (taking into consideration other employees who contracted the illness in that environment).
  • The evidence available. Evidence of work-relatedness includes what was reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns additional information, then that information should be considered to determine whether the employer made a reasonable work-relatedness determination.
  • The evidence that COVID-19 was contracted at work. Certain evidence makes it more or less likely that the illness work-relatedness. For example:
    • More likely work-related when several cases develop among workers who work closely together and there is no other explanation.
    • More likely work-related when the employee contracted the illness after close contact with a customer or colleague who had a confirmed case of COVID-19 and there is no other explanation.
    • More likely work-related when an employee’s position involves close contact with members of the general public in a locality with ongoing community transmission and there is no other explanation.
    • Not likely work-related if employee is the only one to contract the illness in his work area and his position does not involve close contact with the general public, regardless of the rate of community spread.
    • Not likely work-related if, outside of the workplace, the employee was exposed to COVID-19.
    • CSHOs are also advised to give consideration to evidence of causation from medical providers, public health authorities, or the employee himself.

After the inquiry, if an employer cannot determine whether it is more likely than not that an exposure in the workplace played a causal role in a case of COVID-19, then the employer does not need to record that illness.

Reporting Requirements

Once employers determine whether COVID cases are work-related, employers must report any incidents of in-patient hospitalization treatment (as opposed to only observation or testing) which occurred within 24 hours of the exposure at work. See OSHA’s FAQ.

Employers may report COVID-19 related fatalities or in-patient hospitalization by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742), or by online submission. There may also be additional reporting requirements under state or local law.

For more information, contact one of our employment attorneys.

Maryland Law Bans Natural Hair Discrimination

The state joins Montgomery County and Virginia in adopting such legislation

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Effective October 1, 2020 Maryland’s anti-discrimination law prevents discrimination against persons based on their protective hairstyles and textures.

These types of laws, referred to as Creating a Respectful World for Natural Hair (CROWN) acts, are now being enacted in many states and localities. Montgomery County has had such a law in place since February of 2020, making it the first county in the country to ban hair discrimination. Virginia’s law went into effect on July 1, 2020. DC has not yet enacted such a law.

Maryland’s anti-discrimination law, Title 20 of the State Government Article of the Maryland Code, prevents various types of discrimination including discrimination in employment, places of public accommodation, leasing of commercial property, and housing. The definitional section of the title, Md. Code, State Gov’t § 20-101, has been amended to broaden the definition of “race” by including “traits associated with race including hair texture, afro hairstyles, and protective hairstyles.” Additionally, protective hairstyles is defined to include “braids, twists, and locks.”

Notably, the Senate version of the bill attempted to restrict the law by including language that an employer could establish and require an employee to “adhere to reasonable workplace appearance, grooming, and dress standards that are directly related to the nature of the employment of the employee.” However, this language was ultimately struck before the Act’s passage.

Employers should review any grooming and personal appearance standards or handbook policies in their workplace to ensure that they do not violate the new law.

For more information, contact one of our employment attorneys.