Governor Newsom has signed Senate Bill 95, which resurrects the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020. The bill takes effect immediately but provides a 10-day grace period for employers to start providing sick leave. The new law also applies retroactively to January 1, 2021 and will remain in effect until September 30, 2021.

What employers are covered?

The new law applies to employers in the state of California with 25 or more employees.

Which employees are eligible?

Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave. There is no length of service requirement for the leave entitlement provided under the new law.

When can employees take leave?

Employees are entitled to leave for the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

How much leave are employees entitled to?

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Full-time is defined as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.

If an employee is not classified as full-time, the employee’s schedule and length of employment will determine the amount of their leave entitlement as follows:

  • An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
  • An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave.
  • An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

The rate of pay for the leave for non-exempt employees shall be calculated by the highest of the following:

  • The employee’s regular rate of pay for the workweek in which the employee uses the leave.
  • A formula of dividing the covered employee’s total wages not including overtime by the employee’s total hours worked in the full pay period of the prior 90 days of employment
  • The state minimum wage
  • The local minimum wage to which the employee is entitled

For exempt employees, the leave will be paid at the rate that the employer calculates wages for other forms of paid leave time.  The amount paid for supplemental paid sick leave is capped at $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers will need to consider retroactive payments for leave. Any retroactive payment of leave must be paid on or before the payday for the next full pay period after the oral or written request of the employee.

Employers who provided supplemental paid sick leave on or after January 1, 2021 (or April 1, 2021, if the employee qualifies as a home health care provider), under local COVID sick leave ordinances or a COVID specific employer policy may be able to count such hours towards satisfaction of the requirements under this new legislation.

Notice Requirement

Employers will need to provide employees with notice of this new law.  The new law states the Labor Commissioner’s office will release a model notice within 7 days of the passing of the bill.  Employers will also need to provide employees (other than home health care providers) with written notice of available leave balances.  For employees who work a variable schedule, this leave balance notice can be satisfied by performing an initial calculation of hours and indicating “(variable)” next to that calculation.

Jackson Lewis continues to track COVID-19 legislation affecting employers. If you have questions about the new supplemental paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

The EB-5 Investor Visa was created by an act of Congress in 1993, and it has proved to be a critical driver in American job creation since its inception.

By some estimates, the program has brought in over $20.6 billion in Foreign Direct Investment (FDI) at no cost to the American taxpayer. The program has undergone a series of drastic changes since November 21, 2019; most significantly the minimum investment amount was increased from $500,000 to $900,000. The minimum investment amount is even higher in non-Targeted Employment Areas ($1.8 million).

With the increase in investment amount, interest in the visa declined significantly. This decline in interest, coupled with a new USCIS policy that led to petitions being adjudicated based on a visa availability approach (as opposed to a first-in, first-out approach) is reflected in the visa bulletin; India is now current in the EB-5 category, and Vietnam and China have progressed significantly.

As the United States looks for options to spur economic recovery in the wake of the COVID-19 pandemic, the EB-5 program, with its job creation requirements, seems like a logical option. However, recent developments have put the program at risk.

EB-5 Authorization

Traditionally, the EB-5 regional center program has been tied to Congress’ omnibus spending bill. This means that whenever Congress passes the omnibus bill, the EB-5 regional center program would automatically be re-authorized. While the Consolidated Appropriations Act of 2021 extended the program through June 30, 2021, it disjointed EB-5 re-authorization from future omnibus bills. This means that Congress must re-authorize the EB-5 regional center program as a standalone bill.

While the benefits of the programs are well known, the EB-5 program has undergone considerable media coverage. Anti-immigration rhetoric is also playing a part in the discussion. Together, this makes EB-5 re-authorization in June 2021 uncertain.

The EB-5 Reform and Integrity Act

Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT) have introduced the EB-5 Reform and Integrity Act. The bill provides for some crucial changes that would likely safeguard the EB-5 program’s longevity. This includes a five-year authorization for the EB-5 Regional Center Program, protections for innocent investors who have invested into disbarred projects, and increased oversight for regional center programs. The EB-5 industry has welcomed the bill, with the understanding that increased oversight will lend more credibility to the program and appease the program’s detractors. The economic effects of the COVID-19 pandemic provide compelling grounds for both re-authorization and reforms, and the program has brought in billions of dollars of investment and created thousands of American jobs.

The Jackson Lewis team will continue to monitor developments in the EB-5 program and provide updates.

The American Rescue Plan Act of 2021 includes a modified version of the Butch Lewis Act, referred to as the Emergency Pension Plan Relief Act of 2021 (EPPRA), which restores to financial health more than 100 failing multiemployer pension plans. However, the measure falls well short of any meaningful long-term funding reform.  More

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the “Plan”). The Plan is the most recent stimulus bill enacted to address the COVID-19 pandemic and it comes almost one year to the date the first COVID relief bill containing the Families First Coronavirus Response Act (FFCRA) was passed.

The employer leave obligations contained in the FFCRA ended on December 31, 2020.  The Consolidated Appropriations Act of 2021, which was passed on December 27, 2020, did not extend the FFCRA obligations; rather, it gave employers who were covered under the FFCRA the option to voluntarily decide to provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021.

Although there was discussion about extending the FFCRA mandate and extending it to employers of all sizes, the Plan does not mandate employers provide COVID-19 related leave and continues to limit the tax credit to employers covered by the FFCRA (which for private employers, means employers with less than 500 employees).

For those covered employers that choose to voluntarily provide leave, the Plan extends the date employers can receive tax credits for qualified wages paid to employees from March 31, 2021 until September 30, 2021.  Unlike the Consolidated Appropriations Act that did not expand the qualifying reasons for leave and limited qualifying wages to any unused entitlement under FFCRA, among other new provisions, the Plan expands the qualified leave reasons and provides new allotments of paid time that can qualify for tax credits.

Below are some FAQs on the changes made by the Plan:

Are Employers Required to Provide Emergency Paid Sick Leave or Emergency Family Medical Leave?

No.  The mandate ended on December 31, 2020.

If Covered Employers Choose to Provide Emergency Paid Sick Leave or Emergency Family Medical Leave, Can They Still Receive the Tax Credit?

Yes.  The Consolidated Appropriations Act of 2021 allowed covered employers who voluntarily provided paid sick leave or paid family leave under the same terms as provided under the FFCRA to continue to take a tax credit through March 31, 2021.  The Plan provides the opportunity for tax credits to continue for qualifying wages paid from April 1, 2021 to September 30, 2021.

For What Purposes Can Paid Leave Be Provided in order for a Covered Employer to receive a Tax Credit?

In order to receive the tax credit, leave must be provided for a qualifying reason under the FFCRA for either the Emergency Paid Sick Leave or the Emergency Family and Medical Leave.  The American Rescue Plan expanded the reasons for both the paid sick leave (“PSL”) and paid family leave (“PFL”) to include leave provided to an employee who is:

  • Obtaining a COVID-19 immunization,
  • Recovering from an injury, disability, illness or condition related to COVID-19 immunization, or
  • Seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis

In addition, the Plan expanded the reasons that leave can be provided as PFL (which is a longer period than the PSL) and still receive the credit, to include all of the reasons that PSL can be used, which includes instances where an employee is subject to a quarantine or isolation order, where an employee was told to self-quarantine by a healthcare provider due to COVID-19, where an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, where an employee is caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine, and where an employee’s son or daughter’s school or place of child care is closed due to COVID-19.

How Much Leave May a Covered Employer Provide and Still Receive the Tax Credit?

The Plan permits covered employers to receive a tax credit for up to ten days of PSL for employees starting April 1, 2021, even if an employer previously has taken a tax credit for PSL leave paid to those employees prior to April 1, 2021. The tax credit an employer can receive for PSL is based on an employee’s regular rate of pay if the leave is needed for one of the new reasons related to immunization or testing (described above) or because of the employee’s own symptoms, quarantine or isolation up to a cap at $511 a day.  For any other PSL reason, the amount of tax credit an employer can receive is limited to 2/3 the employee’s regular rate of pay and capped at $200 a day.

Employers can also receive a tax credit for up to 12 weeks of PFL.  The total cap for PFL has been increased from $10,000 to $12,000.  An employer can now take a total tax credit of up to $12,000 per employee.  The available credit per employee is still limited to 2/3 the employee’s regular rate of pay up to  a maximum of $200 per day for all PFL reasons for leave, including the new leave reasons related to immunization or testing (described above) and reasons that qualify for a $511 per day cap when the wages are paid under the PSL provisions.  The first two weeks of PFL no longer need to be unpaid.

Is a Covered Employer Eligible For the Tax Credits if it Provides PSL and/or PFL Only to Certain Employees?

The Plan includes a non-discrimination requirement.  Employers may not claim a tax credit on any PSL or PFL wages paid in any calendar quarter if the employer discriminates in favor of highly compensated employees (within the meaning of Section 414(q) of the Internal Revenue Code), full-time employees or employees on the basis of employment tenure in providing the PSL or PFL, as applicable.  However, this non-discrimination provision applies separately to PSL wages and PFL wages and so employers should be able to choose only PSL or PFL and still receive the tax credit for its payment of the PSL or PFL wages, as applicable.

Applicability of tax credits under the Plan are subject to IRS guidance.  As it did in response to the Consolidated Appropriations Act of 2021, we expect the IRS will issue additional FAQs in the near future.

Jackson Lewis attorneys are closely monitoring updates and guidance in this area and are available to assist employers in preparing policies and procedures related to COVID-19 paid time off.

This week, the Centers for Disease Control and Prevention (CDC) issued its first set of recommendations for fully vaccinated people. Significantly, the recommendations are interim only, and will continue to be updated and expanded by the CDC based on the level of community spread, proportion of the U.S. population fully vaccinated, and emerging scientific understanding of the vaccines.

In this welcome guidance, the CDC acknowledged evidence suggesting fully vaccinated individuals are “less likely to have asymptomatic infection and potentially less likely to transmit” the virus to others, and that the benefits of reducing social isolation and relaxing some quarantine measures for fully vaccinated individuals may outweigh the residual risk of passing on COVID-19 or becoming ill.

An individual is considered “fully vaccinated” two weeks after they have either received the second dose of the 2-dose series of the Pfizer or Moderna vaccine or two weeks after they have received the single-dose Johnson and Johnson vaccine.

Per the CDC, fully vaccinated individuals in a non-healthcare setting:

  1. Can visit with other fully vaccinated individuals indoors and in private settings without wearing masks or physical distancing; and,
  2. Can visit with unvaccinated individuals from a single household at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and,
  3. Need not quarantine and test after a known exposure so long as he or she remains asymptomatic.

However, the CDC states that fully vaccinated people should not visit with others or attend a gathering if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms, regardless of the vaccination status of other people at the gathering.

As for fully vaccinated employees that work in non-healthcare congregate settings (such as correctional and detention facilities and group homes) and other high-density workplaces (such as meat and poultry processing and manufacturing plants), the CDC said they need not quarantine after an exposure so long as no symptoms present. However, for this group the CDC still recommends testing following an exposure and continued compliance with any routine workplace screening programs in place. Significantly, the CDC explained that the agency is still learning how long the COVID-19 vaccine may protect someone and how well vaccines protect against emerging variants.

Fully vaccinated individuals should continue preventive measures like masking and physical distancing when visiting with unvaccinated individuals who are at increased risk for severe COVID-19 or who have an unvaccinated household member at increased risk for severe COVID-19. In addition, the CDC recommends a fully vaccinated individual get a COVID-19 test if he or she experiences COVID-19 symptoms.

Further, the CDC advised fully vaccinated individuals should continue to wear well-fitted masks, maintain physical distance from others while in public or visiting with unvaccinated people from multiple households and avoid poorly ventilated spaces and medium- and large-sized in-person gatherings.  The CDC also said that vaccinated people should follow CDC and health department travel requirements and recommendation and follow guidance issued by individual employers.

What does this mean for employers?  The CDC’s pronouncement that so long as they experience no symptoms, fully vaccinated employees do not need to quarantine after COVID-19 exposure is good news indeed and may significantly alleviate concerns over staffing.  But employers may also begin to face increasing pressure from vaccinated employees to relax workplace protocols such as mask mandates.  For the time being, it may be best to tread cautiously when responding to such requests.

Keep in mind that the CDC’s guidance does not override any existing state and local requirements.  Many states have already issued modified orders and standards that relax post-exposure quarantine requirements for those who are vaccinated or that even rescind mask mandates.  But other states have yet to take action.  In addition, the federal Occupational Safety and Health Administration (OSHA) guidance directs employers to require masks in the workplace, and employers around the country are waiting to see whether OSHA will issue a COVID-19 emergency temporary standard in the next few days.  If issued, this standard may or may not address masks in the workplace or incorporate the CDC’s recommendations. Some OSHA state plans already have COVID-19 Emergency Temporary Standards that require masks in the workplace irrespective of vaccines and may have specific rules regarding quarantine also irrespective of vaccines and which may also differ from CDC guidance. Employers should make sure to check any OSHA rules specific to their states and consult with counsel before changing any workplace requirements.

Given the rapidly changing health and regulatory environment, we expect this guidance to continue to evolve.   Employers may want to hold off for now on modifying their existing COVID-19 workplace safety policies.

The American Rescue Plan Act of 2021 (ARPA) is the latest federal COVID-19 relief bill, which the President signed into law on Thursday, March 11, 2021. ARPA includes new COBRA continuation coverage election, notice, and subsidy requirements; pension plan funding relief; and some cost-saving benefit opportunities employees may be able to leverage.  Some of these changes are required and could take effect as early as April 1, 2021, requiring immediate action by employers (or their insurers or administrators).  Other provisions are optional, enabling employers to weigh the costs and benefits in considering their implementation.   This is the first of a series of articles addressing the important employee benefit changes under ARPA, including employer tax credits, executive compensation changes, and multiemployer funding relief.

COBRA Premium Subsidies:  Fulfilling a commitment of the Biden Administration, ARPA includes COBRA subsidy provisions aimed at making health insurance coverage accessible and affordable.  Bearing a striking resemblance to the American Recovery and Reinvestment Act of 2009, ARPA creates a 6-month subsidy period (April 1 to September 30, 2021) during which certain “assistance eligible individuals” (AEI) may qualify for a 100% subsidy for COBRA coverage.  Qualifying AEI would pay no cost for monthly COBRA premiums for medical, dental, or vision coverage if the individual is eligible for COBRA coverage during the subsidy period.  The subsidy period does not extend the maximum COBRA coverage period.  ARPA simply suspends the AEI’s obligation to make COBRA premium payments for up to 6 months.

These rules are not optional for employer sponsored group health plans.  All group health plans subject to COBRA, except health flexible spending accounts (FSA), must provide this subsidized coverage.

The employer (or plan, in the case of a multi-employer plan; or insurer for non-ERISA fully-insured plans) has an obligation to provide this group health plan coverage under its plan, advances the premium cost, and recovers the cost of such coverage from the federal government by claiming a credit against its quarterly Medicare payroll tax liability.  The credit can be advanced and is refundable, meaning the entity can claim a refund if the subsidy exceeds the taxes due.

Only those qualified beneficiaries who trigger COBRA continuation coverage because of an involuntary termination of employment or a reduction in hours and whose current COBRA continuation coverage period would cover some or all of the subsidy period are considered AEI, but only if they elect COBRA coverage.  Individuals who qualify for COBRA because of voluntary termination, retirement, or death would not be considered AEI.

ARPA also creates an extended COBRA election period for AEI so even AEI who previously declined COBRA coverage, or whose coverage was terminated because of nonpayment of premiums, may enroll and receive the subsidized coverage for the length of the subsidy period.  This provision in particular will require careful administration to ensure compliance, given the previous COBRA deadline extensions and the recent re-starting of the clock, which we discuss here and here. ARPA does not change the fact that COBRA continuation coverage still can end because of other group health coverage, Medicare eligibility, and other circumstances.

ARPA imposes new notice requirements on group health plans, which provide AEI with the information they need to enroll in subsidized coverage.  There is a required notice of the availability of the subsidy, a notice of the extended election period for COBRA coverage, and a notice of the expiration of the subsidy.  The U.S. Department of Labor will issue model notices that plan administrators may use.

Group health plans may, but are not required to, allow AEI to enroll in different coverage options available from the employer, subject to certain conditions.  If offered, the notices would need to describe this option.

Affordable Care Act Premium Tax Credit Expansion:  Following the coverage theme noted above, ARPA also expands eligibility for Premium Tax Credits (PTCs) under Internal Revenue Code Section 36B.  These PTCs, which are part of the Affordable Care Act (ACA), make securing coverage through the Healthcare Marketplace or other state exchange more affordable.  Generally, the changes temporarily eliminate the phaseout of eligibility for households over 400% of the federal poverty level, reduce the contributions eligible households must make toward the premium cost, suspend the recapture of excess credits previously provided, and consider anyone who receives unemployment compensation during any week in 2021 as eligible.

For employers, this may mean more “full-time” employees claim the PTCs, which correspondingly may lead to greater scrutiny of employers’ ACA compliance by the IRS and a shift in employer group health plan enrollment.  This may increase the pool of individuals who qualify for subsidized coverage, a key trigger for employer shared responsibility penalties under the ACA. We recommend employers review and confirm their ACA compliance and reporting regularly to understand penalty risk and exposure, especially because of this change.

Increase in Dependent Care Assistance:  For the 2021 calendar year only, ARPA increases from $5,000 to $10,500 (from $2,500 to $5,250 in the case of a separate return filed by a married individual) the maximum amount that can be excluded from income under Section 129 of the tax code for qualifying dependent care expenses.  Employers who sponsor dependent care flexible spending arrangements may amend their plans on or before the last day of the plan year to allow their eligible employees to benefit from this increased limit.  Fiscal plan year sponsors will need to consider how to implement the relief given their plan year limits, noting that the increased contribution limit ends on December 31, 2021.  The Consolidated Appropriations Act, 2021, discussed here, permits employers to amend their Section 125 plans to permit mid-year election changes when the same normally would not be permitted.  That relief will need to be implemented in tandem with any increased limits allowed under ARPA.  For employers who decide not to increase the dependent care flexible spending account limit for 2021, employees still may qualify for the child and dependent care tax credit that was substantially enhanced and made refundable for 2021.

Pension Plan Funding Stabilization:  For employers who sponsor single employer defined benefit plans, ARPA provides several avenues to stabilize funding, including implementing 15-year (up from 7) amortization periods, fresh start rules, and an increase in interest rates used for minimum funding determinations.  These changes should reduce the minimum required contribution amounts, but would need to be weighed against the cost of obtaining an updated valuation, among other considerations.  Employers with these plans should consult with their plan actuaries.  As previously discussed, ARPA also includes long-awaited multiemployer funding relief.

If 2020 taught us anything, it is to be flexible and prepared for change.  Just three months into the 2021 calendar year, we now have the second substantial piece of legislation affecting the employee benefits area under our belts, and imminent implementation guidance.  This underscores how substantially the COVID-19 pandemic continues to change the value-proposition for employer provided benefits.

California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-Protected Leave
  • Reasonable Accommodations for Employees with Disability/Vulnerable Populations
  • Vaccination

Some of the information that employers may want to take special note of include:

COVID-19 Inquiries

The DFEH states that employers may ask employees if they are experiencing COVID-19 symptoms, which is also required under many of California’s local health orders. Employers can also ask an employee why they did not report to work if they suspect the absence was for a medical reason.  However, employers must keep confidential any illness or medically related information disclosed by the employee.  The guidance provides that employers may also take an employee’s temperature or require an employee to submit to a COVID-19 viral test (but not an antibody test).  Employers should note that these allowances are based on the current state of the pandemic and may change as the circumstances continue to develop.

Employees with COVID-19 Symptoms or Infection

Employers are permitted under the current guidance to ask if employees have COVID-19 symptoms, so long as the information is kept confidential. Moreover, employers may send employees home if they have COVID-19 symptoms or test positive for COVID-19. Employers should review the guidance from California’s Labor Commissioner, the agency that enforces wage and hour matters, regarding sending employees home due to COVID-19 symptoms or similar.

Job-Protected Leave

The DEFH reminds employers that employees may qualify for leave under the California Family Rights Act (CFRA) either to care for a family member with COVID-19 or for their own illness if it results in inpatient care or requires continuing treatment or supervision by a health care provider. As with other requests for CFRA leave, employers may require medical certification. However, the DFEH states that “[i]n a pandemic, employers must use their judgment and recommendations from public health officials to waive certification requirements when considering and granting leave requests.”

Vulnerable Populations

The FAQs discuss when reasonable accommodations must be considered for members of vulnerable populations. The DFEH guidance distinguishes between reasons for which someone may be a member of a vulnerable population. If an employee is a member of a vulnerable population because of a disability, then absent an undue hardship, the employer must provide a reasonable accommodation.  However, if the employee is a member of a vulnerable population because of age alone, there is no obligation to accommodate the employee.  The DFEH noted that age is not a disability.

Vaccination

The FAQs provide that an employer may require employees to receive an FDA-approved COVID-19 vaccine if certain criteria are met, including:

  1. The employer may not discriminate against or harass employees or job applicants on the basis of protected characteristics.
  2. The employer must provide reasonable accommodations as required by applicable law.
  3. The employer may not retaliate against anyone for engaging in protected activity such as requesting a reasonable accommodation.

The FAQs also provide that employers who have a mandatory vaccine program may ask for “proof” of vaccination.  If employers make such requests, the FAQs provide that employers “may wish to instruct their employees or applicants to omit any medical information from such documentation.”  Employers are reminded that an individual’s vaccination status must be kept confidential.

Jackson Lewis continues to track federal, state, and local guidance pertaining to COVID-19 and the workplace. If you have questions about the DFEH guidance or related issues, contact a Jackson Lewis attorney to discuss.

Most healthcare employers have been dealing with COVID-19 for a year now. With vaccines widely available for this workforce, we offer five considerations for healthcare employers as they move toward a post-pandemic environment.

  1. Will COVID-19 vaccinations become an annual event?

For years many healthcare providers have required employees to get a flu shot. Are we heading that way with the COVID-19 vaccine? While many providers have encouraged but not required employees to get vaccinated, will that change as data comes in regarding vaccine efficacy and side effects? If so, employers should be ready with a robust communication plan as they roll out this requirement. Incentives for being vaccinated remain a hot topic while employers wait for definitive guidance from the Equal Employment Opportunity Commission regarding what types of incentives are lawful. If such guidance becomes available will we see widespread use of incentives in the future or will they be limited to this first round of vaccines? Employers also should be sure to incorporate lessons learned on dealing with potential vaccination-related absences. 

  1. Telehealth appears to be here to stay. What does that mean for your employees?

Telehealth has been well-received by patients and providers alike. It appears to be here to stay. We expect changes in telehealth credentialing at some point. Employers should watch for these developments and be prepared to assist in credentialing. Another area to watch is HIPAA compliance. Many providers moved quickly to telehealth. Now is the time to conduct a risk assessment and bolster privacy and security protections. Finally, employers need a plan for how to handle provider preference. Will there be a uniform approach to how much, if any, telehealth is offered by a department or practice? What, if any exceptions will be made for provider preference?

  1. Are there segments of your workforce you want to permanently WFH?

Some healthcare systems have reported strong remote work performance by some of their back-office functions. Does this suggest a benefit to permanent work from home arrangements in those departments and converting their current workspace for clinical use? If so, employers need to plan for possible turnover among those employees who would prefer to come to the work site on a regular basis. In addition, for healthcare employers who decide to hire remote workers in states other than those in which the employer operates, they must be sure to comply with employer registration requirements in those states.

  1. We anticipate increased union organizing activity. When is the right time to assess and address employee engagement and satisfaction?

Healthcare worker unions have been very active throughout the pandemic in advocating for thing such as better access to PPE and hazard pay. Some employees may feel their employer did not do enough for them during the pandemic or simply may be more open to listening to union promises of better working conditions. While now may not be the time to conduct employee satisfaction surveys, employers should be actively assessing employee engagement and satisfaction and working proactively to address any gaps.

  1. Will your organization incorporate nimble decision-making structures used during the pandemic?

Many organizations formed COVID-19 Task Forces that changed the pace and process for making organizational decisions. Employers should assess whether they would benefit from moving permanently to some of these processes. This presents an excellent opportunity for greater collaboration between hospital administrators and medical staff leaders and generally across disciplines.

Reach out to your Jackson Lewis attorney who can provide additional best practices and resources as the healthcare industry navigates these developments together.