Since California announced plans for “preparing to get back to normal,” many California employers have eyed California’s reopening date of June 15th as the date they can return to the office or resume normal operations. But even though it is clear California wants to reopen the economy, California employers that are preparing their return to work plans are still unsure of what steps they need to ensure a safe workplace for employees as they return. This is largely because California public health and safety agencies continue to impose significant obligations on employers related to COVID-19 preventive measures and management and some requirements are pending changes.

Along with directives and guidance in California’s Department of Public Health’s (“CDPH”) Blueprint Activities and Business Tiers Chart, employers may still have obligations under local public health orders and guidance. For example, the Santa Clara County Public Health Department requires focused safety measures to reduce the spread of COVID-19, including an obligation for employers to ascertain employees’ and personnel’s vaccinated status. Los Angeles County Public Health Department’s health officer orders similarly require employers to implement strict safety protocols by industry, which include enhanced cleaning and disinfection measures, requirements for ventilation, and ongoing COVID-19 exposure assessments and management.

Irrespective of the health orders, California employers are also still subject to the Department of Industrial Relations’ Division of Occupational Safety and Health’s (“Cal OSHA”) emergency temporary standards on COVID-19, which require most California employers to implement a COVID-19 Prevention Plan and COVID-19 preventive measures. While Cal OSHA’s emergency temporary standards were first adopted in November 2020 and meant to be temporary, the standards are not set to expire until October 2, 2021. Cal OSHA is facing heavy industry, worker, and public scrutiny over its response to the pandemic and fact that it now has standards in place that do not address, respond to, or align with the most current guidance from the Centers for Disease Control and Prevention (“CDC”). Even though the agency has released guidance on COVID-19 preventive measures in response to changes in CDC guidance on fully vaccinated persons, management of COVID-19 following an exposure, and need for certain preventive measures; the guidance still conflicts with the plain language of the adopted standards. The agency is also currently evaluating whether to revise its COVID-19 requirements in response to CDC guidance for “fully vaccinated” persons. Cal OSHA’s Standards Board even released proposed revisions several weeks ago and planned to consider revisions at its board meeting in May, but ended up delaying until further revisions could be considered and an emergency meeting could be held on June 3rd. Since delaying the decision on the emergency temporary standards, Cal OSHA has not  communicated effectively with employers on their compliance obligations during this interim period or shared openly its plan for revising the standards. Instead, Cal OSHA quietly published the proposed revisions on May 28th and left employers searching their website to find the proposed changes.

Cal OSHA’s proposed changes for the emergency temporary standards show some hope for employers in being able to relax their preventive measures, but continue to impose stringent preventive measures and obligations. The proposed changes, in fact, would continue to impose workplace requirements for social distancing and use of face coverings, even for vaccinated employees. The proposed changes also include considerations for respiratory protection in workplace settings where respiratory protection has not been found to be needed to protect against potential exposures to COVID-19 under CDC guidance. Accordingly, even if adopted, Cal OSHA will still be imposing strict COVID-19 prevention requirements on employers, leading to employers that are reopening and returning to normal operations having additional workplace safety obligations even as other state restrictions may be relaxing.

California employers that are interested in attending the Standards Board meeting on June 3rd can attend the meeting by teleconference. Details on the teleconference and agenda are available here. Employers should also be on the lookout for updates from Cal OSHA following the board meeting.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

By tweet, the Department of Homeland Security announced an extension of the travel restrictions at the Northern and Southern land and sea borders until June 21, 2021.  These borders have been closed to “non-essential” travel since March 2020 due to COVID-19.  According to the restrictions:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes.
  • Individual are admitted for “essential” purposes including travel for work, medical reasons, to attend educational institutions, and diplomatic or military-related travel.
  • Citizens and permanent residents of the country they are entering are excepted from the ban.

While these restrictions do not apply to air travel, some families have not been able to see each other for over a year. But, in accordance with its tweet, DHS has stated it is working with Canada and Mexico to “ease restrictions as conditions improve.” Canada’s COVID-19 positivity rate is dropping in some provinces, while infections multiply in others. In the meantime, DOS has issued Level 4 Do Not Travel Advisories for both Canada and Mexico.

Jackson Lewis will provide updates on the travel restrictions as they become available.

For years (and we do mean years), the EEOC has waffled about whether incentives were permissible in connection with a medical inquiry under a voluntary wellness program.  Friday, the EEOC issued its most recent pronouncement on the topic, this time related to incentives for COVID-19 vaccinations.

The ADA prohibits employers from requiring medical examinations or making “disability-related inquiries” except in very limited circumstances.  One such exception is in the case of a voluntary wellness program.  But it has never been clear what voluntary means in this situation. Is it voluntary if an incentive is provided?

A Brief Primer on Incentives and “Voluntary” Wellness Programs Under The ADA

The EEOC stated its position on voluntariness in 2000, in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: a wellness program is “voluntary” as long as an employer “neither requires participation nor penalizes employees who do not participate.”  In 2014, the EEOC sued several employers claiming they had crossed the line in terms of when a penalty connected with a wellness plan makes the wellness plan involuntary.  But in oral argument the EEOC refused to identify what the particular line was. See Court Denies EEOC’s TRO Motion Seeking to Halt Employer’s Wellness Program | Benefits Law Advisor

In other contexts, the Affordable Care Act (ACA) permitted incentives, significant incentives, under group health plans. The other federal agencies, the IRS, HHS, and DOL issued joint implementing regulations for such programs.  Acknowledging congressional intent for some form of incentivized wellness programs, the EEOC then issued regulations which generally allowed employers to offer an incentive of up to 30% of the total cost of self-only insurance coverage.  But, its rules were quickly challenged in the United States District Court for the District of Columbia.  The court ordered the incentive provisions vacated, concluding the EEOC did not provide sufficient reasoning to justify the incentive limit adopted, even though the limit was largely based on the ACA’s approach.  As a result, the EEOC revised the regulations by removing the section permitting incentives, but leaving in place the remaining portions:

An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity:

(i)     Does not require employees to participate;

(ii)    Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate;

(iii)   Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and

(iv)    Provides employees with a notice that:

(A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it;

(B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and

(C) Describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164).

29 CFR 1630.14(d)(2).  See Has the Grinch Stolen Wellness Plans this Christmas? | Disability, Leave & Health Management Blog (disabilityleavelaw.com)

Then in January of this year the EEOC proposed new regulations allowing only de minimis incentives, unless the wellness program was connected to a group health plan.  See Wellness Programs and Water Bottles, the EEOC Proposes New Rules under the ADA and GINA | Benefits Law Advisor

To help guide employers on “voluntariness,” the agency provided examples of what would and would not meet the test. For what would be considered de minimis, the EEOC provided two examples: a water bottle or gift card of modest value. A quick online search reveals an approximate price range for water bottles is between $5 and $50. On the other end of the voluntariness continuum, the EEOC observed that charging an employee $50 per month more for health insurance (or, the “carrot” approach, offering a $50 per month reduction in the charge for health insurance, either way totaling $600 per year), would be too great an incentive and violate the ADA.  Similarly, paying for an employee’s annual gym membership or rewarding an employee with airline tickets would be considered more than de minimis. Of course, these examples provide little insight about the incentive’s value.  So, assuming a $25 or even $50 gift card would meet the “a water bottle or gift card of modest value” test, and $600 incentive clearly would not, what about incentives with a value in the middle, say $100? It is worth noting that the EEOC’s proposed rule would permit more liberal incentives for wellness programs structured as part of a group health plans, provided they follow the ACA rules referenced above.

Unfortunately, these proposed regulations were quickly pulled back under the new administration, leaving once again a black hole in terms of what, if any, incentive an employer could provide in connection with voluntary disability-related medical inquiries or medical examinations in connection with a voluntary wellness program.

New “Very Large” and “So Substantial” Guidance

Last week the EEOC updated the technical assistance it maintains on its website with respect to COVID-19 issues.  See EEOC UPDATES ITS GUIDANCE ON VACCINATIONS | Disability, Leave & Health Management Blog (disabilityleavelaw.com)  The EEOC, which had already opined that the pre-vaccination screening questions may be a disability-related medical inquiry, stated that if an employer offers to vaccinate employees on a voluntary basis, the employer does not have to show the pre-vaccination screening questions are job-related and consistent with business necessity. “However, the employee’s decision to answer the questions must be voluntary.”   The EEOC then went on to explain what type of incentive could be offered in connection with vaccination provided by the employer or its agent.  According to the EEOC, the incentive (which includes both rewards and penalties) must not be “so substantial as to be coercive.”  “[A] very large incentive could make employees feel pressured to disclose protected medical information.”  Although this particular guidance is related to COVID-19, presumably the same analysis would apply to other voluntary inquiries where employers seek to take advantage of the voluntary wellness program exception.

While it is nice to see some explanation as to the EEOC’s position on this topic, the EEOC’s language: “not so substantial as to be coercive” or not “very large” as to make employees feel pressured, is certainly not the epitome of clarity.  What does “substantial” or “very large” mean in practice?  Does it allow more than a water bottle?  The EEOC did not provide examples this time, presumably because it is being pulled in two directions.  On the one hand the government has made clear that it does not want to say anything that would discourage vaccinations (and is also looking to encourage vaccinations), at the same time what it says here may be used in other settings with respect to wellness programs.

Incentives Related to the COVID-19 Vaccine

The good news for employers, at least with respect to incentives offered in connection with COVID-19 vaccinations, is that the EEOC has stated that merely asking whether an employee has been vaccinated is not a disability-related medical inquiry under the ADA and, therefore, does not need to meet the voluntary wellness program exception.  The EEOC made this clear in its guidance last week: “Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.”

However, if the employer is offering the vaccine or having an agent offer the vaccine, the pre-vaccination inquiries may be disability-related medical inquiries. In that case, the incentive offered must comply with the voluntary wellness program regulations.  In that regard, the EEOC reiterated that the amount of the incentive is not the only issue of compliance with respect to vaccinations offered by employers or its agents.  In order to be voluntary, the “ADA prohibits taking an adverse action against an employee, including harassing the employee, for refusing to participate in a voluntary employer-administered vaccination program.  An employer also must keep any medical information it obtains from any voluntary vaccination program confidential.”  Indeed, presumably, all of the requirements of 29 CFR 1630.14(d)(2) (referenced above) continue to apply.

Some employers also have expressed interest in incentivizing employees’ family members to get the vaccine. The EEOC’s recent COVID-19 technical assistance addressed this as well. Remember that under the Genetic Information Nondiscrimination Act, family medical history information, in general, constitutes genetic information of the employee. As a result, the EEOC’s guidance confirmed that an employer may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent because the pre-vaccination questions of a family member would constitute family medical history of the employee. However, employers may offer an incentive to employees to provide documentation or other confirmation that their family members received a vaccination from their own health care provider.

The years long battle over what is and is not an appropriate incentive in connection with voluntary medical inquiries or wellness programs is far from over.  To avoid “very large” penalties of their own, employers should consult with counsel whenever they are designing a wellness program with incentives (carrots or sticks) attached.

Discrimination based on vaccination status is prohibited under a new Montana law (House Bill 702). Enacted on May 7, 2021, the new law went into effect immediately.

The new law provides that employers, including governmental entities, are prohibited from refusing employment to a person or discriminating against a person in compensation or in a term, condition, or privilege of employment based on the person’s vaccination status or whether the person has an “immunity passport.”

The legislation also prevents an employer from requiring employees to get vaccinated with a vaccine administered under Emergency Use Authorization status.

Though employers may not require employees be vaccinated as a condition of employment, employers may still encourage employees to become vaccinated.

Read our full coverage.

Just as you may have been preparing to settle into a relaxing Memorial Day Weekend, the EEOC issued additional informal guidance today concerning COVID-19 vaccination issues. Although there are still many holes to be filled, and employers continue to be left with incomplete guidance, here are some initial highlights and observations:

MANDATING THE VACCINE

• The EEOC starts off by reminding employers that “It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach… Indeed, other federal, state, and local laws and regulations govern COVID-19 vaccination of employees.” The EEOC directs individuals seeking more information about the EUA nature of vaccines to the FDA’s EUA page. Many employers rushed out after the last guidance issued by the EEOC declaring that the EEOC had said they could legally mandate the COVID-19 vaccination regardless of the EUA nature. The EEOC clarified today that it only opines on the legal implications under the federal discrimination laws.

• According to the EEOC, the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations, including concern with disparate impact. The EEOC is silent regarding whether employers can mandate the vaccine for remote workers. It is critically important for employers to consider fully the limitations the EEOC references.

• The EEOC stated that employers can require COVID-19 vaccination with respect to all employees entering the workplace, so long as certain requirements are met. First, the qualification standard must be job-related and consistent with business necessity. Second, if a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. This remains a controversial position and some employers may argue that a lower burden of proof.

DIRECT THREAT

• The EEOC reminded employers that to determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. “The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.”

• The EEOC stated that even if the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

• The EEOC recommended that as a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.

REASONABLE ACCOMMODATIONS

• The EEOC reminded employers that Title VII and the ADA may require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.

• In addition, employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.

• The EEOC provided examples of reasonable accommodations, including an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

DISPARATE IMPACT

• The EEOC stated: “As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

INCENTIVES

• The EEOC clarified that incentives may be provided to encourage vaccination without running afoul of the EEOC’s laws as long as the incentive is not tied to the employee receiving the vaccine from the employer or someone with whom the employer contracted. Simply providing an incentive for an employee to voluntarily provide proof of vaccination he/she received from a third party, like a pharmacy or health clinic, is not a disability-related inquiry and therefore, the ADA’s limits on incentives are not implicated.

• However, if the incentive is tied to a vaccine provided by the employer or its agent then any incentive (which includes both rewards and penalties) must not be so substantial as to be coercive.

• An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.

• Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.

CONFIDENTIALITY

• The EEOC made clear that the “ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.”

• Unfortunately, the EEOC offered no opinion as to what if anything employers could do with the information once collected, in light of its suggestion that confidentiality applied. [This too is a controversial position, as the EEOC’s view with respect to confidentiality of medical information is broader than that included in the ADA itself.]

The Centers for Disease Control and Prevention (CDC) has offered new COVID-19 guidance indicating that fully vaccinated individuals no longer need to wear masks or maintain physical distance from others in most settings. However, questions about employers’ compliance obligations and general duty expectations under the Occupational Safety and Health Act of 1970 (OSH Act) remain. For example, the CDC guidance conflicts with guidance from the Occupational Safety and Health Administration (OSHA), published in January 2021, that prohibits employers from distinguishing between workers who are and are not vaccinated.

To read this article in its entirety, please click here.

ICE announced that I-9 flexibility will be extended again – this time through the whole summer until August 31, 2021.

Since March 2020, companies that have been operating remotely have been able to inspect Section 2 Form I-9 documents virtually, over video link, by fax or via email. In April 2021, the Department of Homeland Security (DHS) clarified that in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” Employees who work exclusively in a remote setting due to COVID-19 precautions are temporarily exempt from in-person inspection until they undertake non-remote employment on a “regular, consistent or predictable basis.”

While it is good to have this additional three-month break, we still do not know when DHS will terminate this flexibility. Once it happens, there will likely be a “rush” to conduct in-person verification and reverification within three business days, particularly for foreign nationals. Accordingly, companies should consider starting to conduct in-person verifications and reverifications for those hired or reverified on or after March 20, 2020 (when the flexibility started) who were verified remotely. This can be done as employees return to the worksite (whether on a regular basis or not) or it can be conducted by agents selected by the employer. An employer may select any individual as an agent for verification purposes, but the employer will remain responsible for any errors in that process.

To prepare for the end of the flexibility program, employers should:

  • Maintain a list of all employees who were verified virtually, when they will be returning to work, and the deadline for their in-person verification.
  • Determine who will be conducting the in-person verifications and how and when they will be reaching out to the affected employees.
  • Train staff on how to update I-9 forms after the in-person review. After the physical inspection, the employer or authorized representative should note “COVID-19” as the reason for the delayed in-person inspection and “documents physically examined” with the accurate date and the name of the person who conducted the review in the “Additional Information” field in Section 2 of the I-9 or in Section 3 (for reverification), as appropriate.
  • Be on the lookout for special rules regarding I-9s for individuals who are beneficiaries of TPS (Temporary Protected Status) or DED (Deferred Enforced Deportation). These are forms of humanitarian protection for certain immigrants and the government often provides automatic extensions of their employment authorization.

DHS has been asked to provide sufficient notice as to when flexibility will be discontinued, but such notice is not guaranteed.

Jackson Lewis attorneys are available to assist you in preparing for the end of flexibility.

Based on the Centers for Disease Control and Prevention’s (CDC) updated guidance, USCIS is opening its doors to “unmasked,” “fully vaccinated” people.

According to USCIS’ new visitor policy:

  • Fully vaccinated people (those who are at least two weeks out from a dose of a single-dose vaccine or the second dose in a two-dose vaccine series) no longer need to wear face coverings in USCIS facilities.
  • Individuals over two years old who are not fully vaccinated must still wear face coverings, and those face coverings must meet USCIS standards.

In addition:

  • Fully vaccinated people with no COVID-19 symptoms who have returned from domestic or international air travel or cruise ship travel in the previous 10 days may enter USCIS facilities.
  • Fully vaccinated people who have been in close contact with anyone known to have COVID-19 in the previous 14 days also may enter USCIS facilities.

This should ease some of the problems that have arisen for those who need to attend USCIS appointments but have also had to travel or have been exposed to someone with COVID-19 – as long as they are fully vaccinated.

Of course, there are still restrictions including:

  • Individuals with appointments may only be accompanied by an attorney, interpreter, parent or legal guardian, dependents listed on the interview notice, or someone assisting a disabled person to allow for social distancing.
  • No guests are allowed at naturalization ceremonies other than individuals assisting disabled persons – again, to allow for social distancing.
  • Those who are feeling sick are told not to come to any USCIS office, but they will be able to reschedule appointments with no penalty.
  • Individuals who have been instructed to self-isolate or self-quarantine within the previous 14 days will not be allowed to enter a USCIS facility.

Jackson Lewis attorneys will continue to provide updates.

On May 11, 2021, the Centers for Medicare & Medicaid Services (CMS) of the U.S. Department of Health & Human Services published an interim final rule/guidance to establish COVID-19 vaccination requirements for Long-Term Care (LTC) facilities. The requirements are applicable to both residents and staff. LTC facilities have already been managing COVID-19 vaccination requirements both at the federal and state levels. CMS’ interim final rule, however, adds new requirements for educating residents (or resident representatives) and staff regarding the benefits and potential side effects associated with the COVID-19 vaccine, offering the vaccine, and reporting COVID-19 vaccine and therapeutics treatment information to the Center for Disease Control’s (CDC’s) National Healthcare Safety Network (NHSN)

An important definition in the guidance is of the term “staff.” This includes individuals who work in the facility on a regular (that is, at least once a week) basis, including individuals who may not be physically in the LTC facility for a period of time due to illness, disability, or scheduled time off, but who are expected to return to work. The term also includes individuals under contract or arrangement, including hospice and dialysis staff, physical therapists, occupational therapists, mental health professionals, or volunteers, who are in the facility on a regular basis, as the vaccine is available.

The chart below provides an outline of the requirements in the interim final rule.

Residents/Staff
Education Education should be provided in a manner that is easily understood and in advance of each vaccination dose, which should include (i) FDA EUA Fact Sheet, (ii) benefits and side effects (e.g., fever, aches, rare reactions) for each dose needed.
Vaccination

LTC facilities must have policies and procedures to oversee that vaccines are offered when supplies are available (unless contraindicated or already immunized). Facilities also need to be screening for prior immunization, and medical precautions, contraindications necessary to determine eligibility.

Residents and staff must have opportunity to accept or decline the vaccine, and change their decisions. Note, residents may decline vaccines and LTC facilities may not take any adverse action, including social isolation, denied visitation, and involuntary discharge. However, staff may not be able to decline vaccination, as LTC facilities will need to review state law and organizational policies.

If a resident or staff member requested vaccination and missed prior opportunity for any reason, the LTC facility must offer vaccine as soon as possible.

Vaccinations must be conducted in accordance with CDC, ACIP, FDA, and manufacturer guidelines. All facilities must adhere to current infection prevention and control recommendations when preparing and administering vaccines, including monitoring for adverse reactions. This includes monitoring of indications and contraindications for COVID-19 vaccination, including new or revised guidelines issued by the CDC, FDA, vaccine manufacturers, or other expert stakeholders.

If the vaccine is unavailable, LTC facilities should provide information on obtaining vaccination opportunities (e.g., health department or local pharmacy)

Vaccine education and offer requirements do not apply to individuals entering the LTC facility for a specific purpose, or limited amount of time – e.g., delivery, repair persons, volunteers, entering facility less than once per week.
 

Residents

Staff
Documentation

Residents’ medical record must document:

o   that resident or resident representative was provided education regarding the benefits and potential risks associated with COVID-19 vaccine;

o   each dose of vaccine administered, or that the resident did not receive the COVID-19 vaccine due to refusal or medical contraindications;

o   date education and offer of vaccine took place;

o   name of representative that received education and accepted/refused vaccine, if applicable; and

o   Samples of educational materials used.

LTC facilities need to document vaccine status of residents, including total numbers of residents, numbers of residents vaccinated, numbers of each dose of COVID19 vaccine received, vaccination adverse events, and therapeutics administered for treatment of COVID-19.

Documentation concerning staff includes:

o   that staff was provided education regarding the benefits and potential risks associated with COVID-19 vaccine;

o   that staff were offered the vaccine or information on obtaining-19 vaccine, unless contraindicated or already vaccinated; and

o   vaccine status of staff and related information as indicated by NHSN.

LTC facilities need to document vaccine status, including total numbers of staff, number of staff vaccinated, numbers of each dose of COVID19 vaccine received, and any vaccination adverse events.

This could be accomplished with a staff roster noting education (e.g., sign-in sheets), date of education, samples of educational materials. Additionally, for staff that have already been vaccinated or received the vaccination outside the LTC facility, the facility should request staff to substantiate their vaccination.
 

LTC facilities must be able to provide evidence, upon request, of efforts made to make the vaccine available.

If there is manufacturing delay, LTC facility must be able to provide evidence of the delay, and efforts to acquire subsequent doses as necessary.
Reporting

Adverse reactions must be reported to the Vaccine Adverse Event Reporting System (VAERS)

Through the National Healthcare Safety Network (NHSN) LTC facilities are required to report, on a weekly basis, the COVID-19 vaccination status of residents and staff, total numbers of residents and staff vaccinated, each dose of vaccine received, COVID-19 vaccination adverse events, and therapeutics administered to residents for treatment of COVID-19.

These new requirements will raise additional data privacy and security requirements for LTC facilities involving the collection, storage, transmission, and potential recordkeeping of resident and employee health information. LTC facilities should review their policies and procedures and how they will be applied these new requirements.

CMS will begin reviewing for compliance with the new vaccination reporting requirements beginning Monday, June 14, 2021.

Surveyors will engage in efforts to ensure compliance. Surveyors will be looking for a facility representative to provide information on how residents and staff are educated about and offered the COVID-19 vaccine. They will want to see educational materials. Surveyors will request a list of residents and staff and their COVID-19 vaccination status, further review their records and even conduct interviews to confirm residents and staff were educated on and offered the COVID-19 vaccine, in accordance with the new requirements.

According to the guidance, failure to meet reporting requirements will result in a Civil Monetary Penalty (CMP) starting at $1,000 for the first occurrence. For each subsequent week that the facility fails to submit the required report, noncompliance will result in an additional CMP imposed at an amount increased by $500 and added to the previously imposed CMP amount for each subsequent occurrence.

In our most recent summary of IRS Notice 2021-31, we noted the Internal Revenue Service provided much-needed clarity to looming compliance challenges as employers, insurers, and others race to implement the applicable COBRA premium subsidy provisions of the American Rescue Plan Act of 2021 (ARPA).  While there are many other important clarifications made by the Notice, the substance of this alert focuses mainly on issues related to employers subject to state health continuation coverage laws, otherwise referred to in the guidance as “State mini-COBRA” requirements.

State continuation coverage requirements are not “COBRA” requirements per se, meaning they are not included as part of the Consolidated Omnibus Budget Reconciliation Act of 1985 (otherwise known as “federal COBRA”).  State continuation coverage generally only applies when employers have less than the 20 employee minimum threshold required for federal COBRA to apply or provide coverage for a period exceeding the maximum coverage period provided for under federal COBRA.  Nonetheless, ARPA included “comparable state continuation coverage” within the definition of “COBRA continuation coverage” that is subject to subsidy requirements under ARPA Section 9501.  Until issuing the most recent IRS Notice, there had been some ambiguity about what state continuation coverage programs would be subject to ARPA’s subsidy requirements, or when they were “comparable” to federal COBRA for subsidy eligibility purposes.

Following the Q&As provided in Notice 2021-31, we now know:

  • Generally, the criteria to be an “assistance eligible individual” for ARPA COBRA subsidy eligibility purposes applies equally to plans regardless of whether they are subject to federal COBRA or State mini-COBRA —in both cases, an individual must have previously qualified for federal COBRA or comparable state continuation coverage based on an involuntary termination or reduction in hours and not be eligible for other group coverage or Medicare.
  • Q/A-61 clarifies that the state continuation coverage need not be equal to or exceed the federal COBRA mandates to be “comparable”. The period of state continuation coverage can be significantly less than the maximum federal COBRA period (the example uses a period of just 6 months), and the underlying coverage can allow for coverage for individuals who differ from those entitled to coverage under federal COBRA.
  • State continuation coverage that exceeds the federal COBRA coverage period can still qualify for the ARPA subsidy if the individual was previously enrolled and became eligible for continuation coverage due to an involuntary termination or a reduction in hours (Q/A-17). This is true even in states like New York and Connecticut that provide for state continuation coverage after federal COBRA coverage has been exhausted.
  • Unlike federal COBRA, however, unless the applicable state provides its own extended enrollment opportunity, an individual who previously declined to enroll in State mini-COBRA coverage does not have an extended election opportunity to enroll in COBRA continuation coverage under ARPA, even if they otherwise would qualify as an assistance eligible individual (Q/A-52). The subsidy, therefore, is generally only available for individuals who have either already elected and are paying for state continuation coverage or, who are newly eligible during the ARPA COBRA subsidy period.
  • Employers who voluntarily offer health continuation coverage not mandated under federal COBRA or a covered state continuation plan do not have to provide ARPA COBRA subsidized coverage (Q/A-15). Neither are those employers allowed to claim the ARPA subsidy associated tax credit.  Such voluntary extensions of coverage are common for domestic partners and children of domestic partners who are not considered qualified beneficiaries under federal COBRA or other State mini-COBRA requirements.
  • Although State mini-COBRA requirements may allow for coverage of individuals who are not considered qualified beneficiaries under federal COBRA (e.g., domestic partners and children of domestic partners who are not qualifying dependents of the employee under current IRS definitions), such individuals can still be enrolled in state continuation coverage but would not be eligible for subsidies for any portion of the monthly COBRA premium attributable to that individual (Q/A-19). Correspondingly, the “premium payee” who is eligible to receive the tax credit cannot claim a credit for the portion of the premium attributable to the individual who is not considered a qualifying beneficiary under federal law (Q/A-67).
  • An insurer who provides fully insured health plan coverage to employers subject to State mini-COBRA rules is the “premium payee” who must offer subsidized COBRA coverage during the period from April 1, 2021, through September 30, 2021, and the entity entitled to the tax credit for providing the subsidized coverage. This is true even if the employer is required by the insurer to make monthly premium payments to the insurer during the ARPA COBRA subsidy period.  (Q/A-72(3) and Q/A-62).

While insurance carriers likely will be providing more clarity on their coverage requirements and subsidy eligibility to all affected individuals following these most recent updates from the IRS, employers need to understand how ARPA’s requirements apply to their specific plan and be prepared to respond to questions from individuals.  Our Employee Benefits attorneys remain available to assist in addressing questions related to eligibility for ARPA subsidies or continuation coverage requirements generally.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions.