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At AHERN Insurance Brokerage, we are dedicated to keeping you up-to-date and informed when critical notifications (such as these) directly impact you, your clients, and your business.

California Governor Gavin Newsom recently signed two bills into law: SB1159 and AB685. These place immediate requirements on California employers and will remain effective from September 17, 2020 through January 1, 2023.

Please review this information carefully as these obligations carry severe administrative penalties (up to $10,000) for failure to comply.

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The First Bill: SB1159 – COVID-19 Workers’ Compensation Presumption Bill

Earlier this year, the Governor released Executive Order N-62-20. This provided criteria for how to handle cases of COVID-19 if an employee claims they contracted the virus while performing their job.  It also created a “rebuttable” presumption for COVID-19, which means the claim of becoming infected while performing one’s job stands unless the employer has other evidence that the infection took place outside of work.

The Governor’s newest bill, SB1159, extended this “rebuttable” presumption until 1/1/2023.  Another critical component of this bill requires California employers to report all known (or reasonably known) Employee positive tests for COVID-19 to their claims administrator.  This obligation applies even if the employee is not making an allegation of workplace exposure.

Here are the rules for this important reporting obligation:

For Positive Tests on (or after) September 17, 2020
ALL OF THE FOLLOWING must be reported directly to your current workers’ compensation carrier within 3 business days of being notified that your employee tested positive for COVID-19:

1. TEST RESULT: Report that an employee tested positive. Do not identify the employee by name unless the employee claims the infection was work-related.
2. DATE: Report the date the employee tested positive. This is the date the test was taken.
3. ADDRESS: Include the address of the specific place(s) of employment where the infected employee worked during the 14-day period before testing positive.
4. EMPLOYEE TOTAL: First, please take note of the date your employee tested positive. Second, with that date in mind, please note the number of employees who came into work within 45 days before this date. Businesses must report the highest number of employees who came to work (at the same locations where the infected employee worked) in the 45-day period before the infected employee’s last day on-the-job.

For Positive Tests between July 6, 2020 and September 17, 2020

1. TEST AMOUNTS: Report all known positive tests by October 29, 2020.
2. TEST RESULT: Report that an employee tested positive. Do not identify the employee by name unless the employee claims the infection was work-related.
3. DATE: Report the date the employee tested positive. This is the date the test was taken.
4. ADDRESS: Include the address of the specific place(s) of employment where the infected employee worked during the 14-day period before testing positive.
5. EMPLOYEE TOTAL: First, please take note of the date your employee tested positive. Second, with that date in mind, please note the number of employees who came into work within 45 days before this date. Businesses must report the highest number of employees who came to work (at the same locations where the infected employee worked) in the 45-day period before the infected employee’s last day on-the-job.

Please note these regulations only apply to businesses with 5 or more employees. All reports must be done in writing and submitted directly to your current workers’ compensation carrier.

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The Second Bill: AB685 – Employer’s Written Notice for Exposed Employee

You also need to be aware of the second bill, Assembly Bill 685. This bill will be effective on January 1, 2021 and requires California businesses to notify their employees who may have been exposed to COVID-19 at their worksite within one business day.  Additionally, record keeping obligations are included in this bill.  We request that employers review this link so that they can review the requirements and take appropriate steps to ensure overall OSHA compliance.

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If you have any questions regarding this important notice, please feel free to contact your AHERN Producer or Account Manager.

We hope that you, your employees, and your families are staying safe during this time.
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AHERN Insurance Brokerage is pleased to share this material with its customers. Please note, however, that nothing in this email communication should be construed as legal advice or the provision of professional consulting services. This material is for general informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness.

COVID-19 Guidance for Section 125 Mid-Year Election Change Rules
On May 12, 2020, the IRS released Notice 2020-29, which provides temporary flexibility for mid-year election changes under a Section 125 cafeteria plan during calendar year 2020. The changes are designed to allow employers to respond to changes in employee needs as a result of the COVID-19 pandemic.

This guidance relates to mid-year elections for:

  • Self-insured and fully insured employer-sponsored health coverage;
  • Health flexible spending arrangements (health FSAs); and
  • Dependent care assistance programs (DCAPs).

A plan may permit any of the election changes described in the notice, regardless of whether they satisfy existing mid-year election change rules.

Please click here to continue reading our Compliance Bulletin which summarizes the additional mid-year election changes.

Annual Increases to Health FSA Carryover Limit
On June 24, 2019, President Trump issued an executive order that required the IRS to issue guidance that would increase the health FSA carryover limit. On May 12, 2020, the IRS issued Notice 2020-33 to increase the maximum $500 carryover amount for a plan year to an amount equal to 20 percent of the maximum salary reduction contribution for that plan year. Thus, the maximum unused amount from a plan year starting in 2020 allowed to be carried over to the immediately following plan year beginning in 2021 is $550 (20 percent of $2,750, the indexed 2020 contribution limit).

As a general rule, an amendment to a Section 125 cafeteria plan to increase the carryover limit must be adopted on or before the last day of the plan year from which amounts may be carried over and may be effective retroactively to the first day of that plan year. However, there is a special amendment timing rule for the 2020 plan year. Employers that implement indexing of the maximum carryover amount for 2020 may adopt an amendment to their Section 125 cafeteria plans by Dec. 31, 2021, effective retroactively to Jan. 1, 2020, provided that the employer informs all individuals eligible to participate in the cafeteria plan of the changes to the plan.

CARES Act Provisions Affecting FSAs, HSAs and/or HSAs
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law March 27, 2020 contains important provisions that affect HSAs, HRAs and FSAs. The following provisions are effective immediately:

  1. HSA-qualified health plans can now cover tele-health and other remote care service expenses below the HDHP statutory deductible limit, or at no or low-cost sharing, without affecting an account holder’s ability to continue contributing to their HSA. This provision will last until December 31, 2021.
  2. Over-the-counter (OTC) medications now can be paid for or reimbursed through an FSA, HRA or HSA without a doctor’s prescription. Ordinarily, individuals are precluded from using FSA funds to pay for OTC drugs without a prescription. The Act eliminates this prohibition, which frees up these funds to purchase over-the-counter medications (Tylenol, Advil, Zyrtec, etc.) and further recognizes menstrual care products as FSA-eligible expenses.  These items are eligible for reimbursement beginning January 1, 2020.

Please click here to read our Benefits Bulletin: IRS Provides Temporary Flexibility for Cafeteria Plans, Health FSAs, and DCAPs.

If we can answer any questions or be of any assistance, please do not hesitate to contact us at AIBBenefits@AhernInsurance.com.

As COVID-19 continues to spread throughout the United States, there has been a massive upheaval of the American workplace. Employers have found themselves drafting and implementing policies and procedures addressing a wide array of issues including remote work, layoffs, furloughs, pay cuts, workplace conditions and many more. Not surprisingly, the uncertainty wrought by COVID-19 has left employers at an increased risk of exposure to employment-related claims alleging wrongful termination, discrimination, retaliation and many others.

This HR Insights piece will serve as a guide to the most common potential causes of action related to COVID-19 that may lead to employment-related litigation. As is the case with all inherently legal issues, employers are strongly recommended to seek the guidance of legal counsel when faced with any of the claims discussed herein.

Workplace Health and Safety

There have already been a multitude of safety violation claims filed under the Occupational Safety and Health Act (OSHA) and state equivalents. These safety violations typically allege that an unsafe workplace has caused sickness and/or death due to COVID-19, or that an employer failed to take appropriate measures to reduce COVID-19 exposure and spread within the workplace. Such “appropriate measures” might include failure to provide hand-washing stations, sanitizers, masks or adequate protective gear on location. Other claims have alleged that employees have been unable to practice social distancing due to the nature of their jobs.

Leave Claims (FMLA and FFCRA)

In addition to traditional paid and sick leave, COVID-19 spurred the passing of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The FFCRA requires employers with 500 or fewer employees to give employees expanded paid family and medical leave, and emergency paid sick leave.

Without analyzing the unique provisions of the FFCRA, it must be noted that the Act expressly incorporates existing Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) remedies provisions. This means that an employee who is wrongfully denied expanded leave or not paid during the leave will have a cause of action to recover damages (lost wages, salary, benefits and other compensation) or actual monetary losses resulting from the denial of leave (e.g., the costs of child care), with interest. Likewise, employers that fail to comply with the Expanded Paid Sick Leave Act will be made liable to remedy provisions under the FLSA.

Given the extensive exposure, employers should consider speaking with legal counsel in order to update and implement leave-related policies. Employers might also consider training their managers and supervisors on updates to the policies and laws, as they will be on the front lines when dealing with leave-related issues.

Wage and Hour Claims

With employees being asked to work from home, and employers restructuring their workforce (including salaries and compensation) to fit their current needs, it’s vital to remember that this reshuffling can give rise to claims under the FLSA and applicable state laws related to salary and hours reductions. Altering work arrangements and compensation structure may be necessary to keep some organizations afloat, but such changes may inadvertently alter the classification status of their workers. Such classification issues may lead directly to an FLSA claim.

Discrimination Claims

Numerous federal and state laws protect employees from discrimination based on protected class characteristics. Laid-off or furloughed employees may bring claims under federal and state anti-discrimination laws, challenging the purported reason they were selected for an adverse employment action. Employers should be careful to use objective means when deciding which employees to lay off or furlough. They will also want to retain records of the criteria used, and, in certain instances, evaluate whether any disparate impact may result from the decision.

Employees might also bring a claim based on an employer’s failure to reasonably accommodate employees with a bona fide disability related to COVID-19. Such claims might even be based on a denial of a request to allow an employee to work from home.

Retaliation Claims

Most state and federal laws contain provisions that make it unlawful for employers to retaliate against employees who exercise their protected legal rights or oppose unlawful employer actions. For instance, there have already been numerous claims that allege retaliation for objecting to unsafe working conditions and exposure to individuals with COVID-19 symptoms in the workplace. Other retaliation claims may arise out of an employee complaint that the employer wrongfully denied a request for leave.

The most important practice in insulating your business from a retaliation claim is documentation. Extensively documenting the employer’s reasoning behind their employment decisions can be the difference between a successful retaliation defense and a costly judgment.

Wrongful Termination Claims

With the major increase in employee furloughs and layoffs, it is no surprise that there has been an increase in wrongful termination claims. Wrongful termination claims can arise out of a multitude of COVID-19-related issues. One example is a claim that the employee was terminated for complaining about a lack of personal protective equipment. Another example would be a claim that the employee was terminated for lodging a complaint about co-workers with COVID-19 symptoms reporting to work.

To mitigate the potential for a wrongful termination claim, employers should proceed carefully upon receiving employee complaints. Employers should also maintain meticulous records of complaints, the investigation process and the ultimate reasoning behind the termination.

Disclosure of Confidential Information Claims

Because the Centers for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spreading of COVID-19 and issued precautions, employers have been allowed to measure employees’ body temperature. However, this newly expanded testing capability exposes the employer to an array of privacy-related issues.

In order to maintain the privacy of COVID-19-related medical documents, the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that they have the disease or suspect they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

Conclusion

These are just a few examples of the most common types of claims that may arise as a result of COVID-19. It is imperative

that employers are aware of these potential issues and proceed accordingly. Moving forward, employers should consider the following:

  1. Develop a return-to-work plan that contemplates federal and local safety guidance (e.g., CDC, OSHA and state health authorities) on personal protective equipment, workspace hygiene, social distancing measures and many others.
  2. Consult with legal counsel when implementing (or updating) policies and procedures to ensure compliance. Ensure counsel is also present when undergoing recall, rehire and job offers, as this stage is the epicenter for multiple employment-related claims.
  3. Ensure that those policies and procedures are implemented in a fair and equal manner.
  4. Ensure proper communication to all employees, particularly the line managers who will be responsible for implementation.
  5. Maintain the confidentiality of all medical-related information provided by employees in compliance with federal and state guidance.
  6. Train managers and supervisors on new policies and procedures drafted in the wake of COVID-19.
  7. Regularly monitor new federal, state and local guidance, as well as legislative enactments.

Contact AHERN Insurance Brokerage today for more guidance.

This HR Insights is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. © 2020 Zywave, Inc. All rights reserved.

We appreciate your trust in AHERN Insurance Brokerage for employee benefit and health care related services and solutions. As we continue to monitor coronavirus (COVID-19) developments closely, the health and well-being of our clients and their employees is of the utmost importance.

As you may have already noted, health insurers are responding to the COVID-19 threat by offering members no-cost screening and diagnostic testing. We know it can be difficult to keep track of information in times like these, so we have published a consolidated summary of each carrier’s COVID-19 enhanced benefits, FAQ’s and resources which you can find here.

In addition, please note the following key resource pages from the Centers for Disease Control and Prevention and the California Department of Public Health:

While we continue to monitor this fluid situation, please do not hesitate to contact us with any questions or concerns.

As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.

Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.

Our latest Compliance Bulletin provides a summary of the compliance issues facing employers in this type of situation. To continue reading the Bulletin, please click here.

If we can answer any questions or be of any assistance throughout the year, please do not hesitate to contact us.