Ann Sullivan has been appointed as a Special Education Hearing Officer by the Virginia Department of Education.  As a Special Education Hearing Officer, Ms. Sullivan will preside over administrative hearings involving educational placement and services, as well as the provision of a free appropriate public education.  Her selection was based on her previous hearing officer experience as well as her demonstrated concern for protecting the rights and education opportunities for children with disabilities.

Ann Sullivan is just one of a handful of attorneys designated by Virginia Lawyers Weekly as a “go-to” employment lawyer.  Nominated by her peers, Ms. Sullivan was selected based upon her long record of accomplishments and expertise in employment law as well as her ability to establish a rapport with clients and her reputation among other lawyers.  She and the other selectees will be featured in the April 26, 2021 issue of Virginia Lawyers Weekly.

The federal Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020 – and with it, certain employers’ obligation to provide emergency paid sick leave and emergency family and medical leave. Congress just extended the tax credit for all employers who voluntarily provide such paid leave through March 31, 2021.  The most recently legislation, titled The American Rescue Plan Act:

  • Extends the tax credits available for employers who voluntarily provide FFCRA leave to September 30, 2021 with the required documentation.
  • Provides that the tax credits are available for paid sick leave and paid family leave provided for these new reasons:
    • the employee is obtaining immunization (vaccination) related to COVID-19;
    • the employee is recovering from any injury, disability, illness or condition related to such vaccination; or
    • the employee is seeking or awaiting the results of a diagnostic test or medical diagnosis for COVID-19 (or their employer has requested such a test or diagnosis).
  • Employers who voluntarily provide leave must do so in a uniform manner, without discriminating against certain categories of workers.  For example, you may not discriminate against highly compensated employees, full-time employees, or employees with seniority.
  • Re-sets the 10-day limit for the tax credit for paid sick leave under the FFCRA beginning April 1, 2021. As a result, an employer could voluntarily provide an additional 10 days of FFCRA paid sick leave beginning April 1, 2021, and would be eligible for a tax credit for doing so. But employers are not required to do so.

We continue to monitor legislation related to the COVID-19 and all changes in employment law and policy due to the change in administrations.  As always, we welcome your questions and are eager help identify solutions for your business.

The Emergency Temporary Standard by the Virginia Department of Labor and Industry (“DOLI”) related to COVID-19 recently became permanent with certain modifications. Pursuant to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (“the Final Standard”), all employers must:

      Assess their workplaces for hazards and assess the risk of exposure to the virus posed by job tasks
•      Encourage employees to self-monitor for symptoms of COVID
•      Develop and implement policies and procedures for employees to report symptoms of COVID-19
•      Treat employees reporting symptoms of the virus as “suspected to be infected” with COVID until/unless another diagnosis has been made
•      Remove persons known or suspected to be infected from the workplace and implement return-to-work standards based on testing, symptom resolution, and/or time.
      Establish a HIPAA-compliant system to receive positive COVID test results from employees
      Report a positive test to other employees working at that location within 24 hours (without revealing identity of positive employee)
•      Inform their landlord of the positive test. Commercial landlords must notify all tenants that a worker in the building has tested positive for the virus.
•      Inform the Virginia Department of Health of the positive test and notify the Virginia Department of Labor and Industry if three or more employees test positive within a 14-day period
•      Promote physical distancing by limiting or staggering access to common areas, encourage the use of face coverings, provide adequate supplies for sanitizing surfaces and hands
      Ensure cleaning and sanitizing of common areas and shared surfaces, workstations, tools, equipment and vehicles between shifts
      Provide personal protective equipment (PPE) to employees when physical distancing and cleaning protocols are not feasible or sufficient to mitigate risks

In addition, the Final Standard classifies jobs by risk level. The “very high” and “high” categories include health care workers, any person who deals with the biological specimens or corpses of those infected with COVID, and first responders, among others. “Medium” risk jobs include those in the service industry, manufacturing, agriculture, and retail. “Lower” risk jobs are those with limited exposure to the general public and can be accomplished through the use of telework, staggered scheduling, and social distancing. Employers with jobs falling into the “very high,” “high” and “medium” risk categories must meet additional workplace safety requirements, including the use of face coverings, physical barriers, respiratory equipment, PPE, pre-shift symptom screening, and maintenance of adequate ventilation systems. All employers in industries in the “very high” and “high” risk must have a written infectious disease response plan; employers in “medium” risk industries must do the same if they have over 11 employees. All employers in these categories must provide their workers with training on COVID, its symptoms and transmission, and the use of PPE.

The Final Standard is very similar to the July temporary version of the workplace regulations but includes a few changes. The Final Standard moves workers at correctional facilities, jails, detention centers, and juvenile detention centers from the “medium” risk category to the “high” risk category. It also goes into much more detail about how medium-and high-risk workplaces, like restaurants and grocery stores, should direct airflow systems at their facilities. According to the document, these businesses should increase total airflow, inspect filters to minimize filter bypass and generate “clean-to-less-clean” air movement through the use of air diffusers and dampers. In addition, the Final Standard notes that some infected employees may be contagious even after the recommended 10-day isolation period and warrant additional isolation up to 20 days.

Failure to comply with the Final Standard’s directives exposes employers to fines and administrative enforcement actions by DOLI. Additionally, employers are prohibited from discharging or otherwise discriminating against employees for exercising their rights under this Standard, including employees who raise reasonable concerns about COVID-related infection control to the employer, other employees, a government agency, or the public.

The Virginia Worker’s Compensation Commission has previously held that an employee may recover Workers’ Compensation for a work-related vaccine injury if they can prove that the vaccination arose out of and in the course of employment, and resulted in an “obvious sudden mechanical or structural change in the body.” A vaccine injury will be considered work-related if required by the employer. Until recently, the issue of vaccine injury only impacted a handful of employers, such health care providers or military contractors. However, with the growing availability of the COVID vaccine, employers in many fields are now implementing or at least considering mandatory vaccine policies. While vaccine injuries are historically extremely rare, in the unlikely event an employee experiences an obvious and sudden vaccine injury, Worker’s Compensation benefits will likely be available to them.

If the vaccine injury does qualify the employee for Workers’ Compensation, medical expenses are payable on day one but wage replacement is only available after 7 days of missed work. If the employee ends up being out of work for more than 21 days, they can then reach back to obtain coverage for the first 7 days of wages. The 7-day elimination period, plus the requirement that the vaccine result in serious injury, means that an employee who merely feels ill for a few days after receiving a COVID vaccine (typically, after the second dose) will not typically have a claim for either medical expenses or wages under Worker’s Compensation. On the other hand, in the rare case that an employee experiences a lasting and serious reaction, Worker’s Compensation benefits will provide a much-needed safety net. Making employees aware of this protection will hopefully reduce vaccine reluctance by allaying injury concerns.

On Sunday, December 27, 2020, President Trump signed a bill providing a long-awaited second COVID-19 relief package (“Relief Package”). The Relief Package contains a number of key provisions impacting employers as of January 1, 2021:

1. It offers a new round of forgivable PPP loans of up to $2 million to employers with less than 300 employees whose gross receipts have declined by 25% or more in any quarter of 2020 compared to 2019. Employers who took a loan in the first round of PPP lending are eligible for a second PPP loan, as long as they used (or will use) all of their previous PPP loan. If you received PPP funds in the first round, it clarifies that expenses used for PPP forgiveness are tax deductible, and if your PPP loan was for $150,000 or less, it offers a new, simple one-page form to apply for forgiveness.

2. It does not extend the mandates of the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) or the Emergency Paid Sick Leave Act (“EPSLA”) under the Families First Coronavirus Response Act (“FFCRA”), which expire December 31, 2020, but does allow tax credits to employers for “FFCRA like” paid leave benefits paid to employees through March 31, 2021.

3. It provides for continued federal assistance to unemployed workers with supplemental weekly benefit payments of $300 and an 11 week extension of the maximum benefit period (now reduced to 10 weeks due to the President’s delay in signing), through March 14, 2021.

The Details:
1. New Round of Forgivable PPP Loans

The new Relief Package sets aside $284 billion in new PPP loan funding, which is available to employers whether they participated in the first round of lending or not.

Eligibility

To be eligible, employers must:

  • Have experienced a decline of 25% or more in gross receipts (income) in any quarter of 2020 compared to 2019. Gross receipts will likely exclude funds from PPP loans or other loans/grants.
  • Have been in business prior to February 15, 2020.
  • Have used (or will use) all previous PPP loan amounts, if received.
  • Have fewer than 300 employees.

Amounts Available

The maximum loan amount per employer is $2 million. As with the first round of PPP, most employers can take a loan amount up to 2.5 times their average 2019 monthly payroll costs. Employers in certain industries that have been particularly hard hit by the pandemic, including hotels and restaurants, can take up to 3.5 times their average 2019 monthly payroll costs.

The Relief Package includes set-asides for small businesses (those with less than 10 employees) and those located in low- and moderate-income areas, which were disproportionately shut out of the first round of PPP lending. It also allocates $15 billion in grants (not loans) for cultural and entertainment providers like performing arts venues, movie theaters and museums.

The Relief Package also allocates funds for a new round of EIDL (Economic Injury Disaster Loan) grants for businesses in low-income communities. Additionally, employers who receive both an EIDL advance grant and a PPP loan are no longer required to deduct the EIDL advance amount from their PPP forgiveness amount.

Forgiveness

The new Relief Package clarifies that expenses used for PPP forgiveness are now tax deductible (reversing a prior Treasury Department decision), and for PPP loans of $150,000 or less, lenders will be provided a new, simple one-page form for borrowers to use to apply for forgiveness. These changes apply to the new round of PPP loans as well as the previous round.

Additionally, while borrowers are still required to use at least 60% of PPP funds on payroll expenses, the categories of non-payroll expenses that are forgivable are now much broader, including payment for software, cloud services, accounting and human resources expenses, as well as the cost of goods and services ordered or contracted before or during the loan period.

What Employers Should Do Now

To secure a PPP loan before this new round of funding gives out, employers should be prepared to apply on the first day the applications open by:

  • Figuring out your income by quarters in 2020 and 2019.
  • Contacting potential lenders to find out whether they will be participating in this round of PPP. Have a couple of lending sources lined up and ready to go.
  • Pay attention to application opening dates and deadlines, and apply on day one for everything you believe you may qualify for.

2. FFCRA Leave Becomes Optional After December 31, 2020

FFCRA required most employers to provide eligible employees who were unable to work for COVID-19-related reasons up to 2 weeks of paid leave under the EPSLA and 10 weeks of paid leave under the EFMLEA. For private employers, the requirement to provide this paid leave was offset by dollar-for-dollar payroll tax credits for wages paid to employees taking paid leave. These FFCRA provisions expire on December 31, 2020 and are not extended by the new Relief Package.

However, the Relief Package allows private employers to continue to offer FFCRA leave on a voluntary basis, and those who do can still claim dollar-for-dollar payroll tax credits on wages paid to employees through March 31, 2021, provided the leave is available and paid as would be required by the FFCRA if it still applied.

What Employers Should Do Now

Employers will need to decide whether extending FFCRA leave on a voluntary basis after December 31, 2020 makes sense from a financial and human resources perspective, and then revise (or eliminate) their existing FFCRA paid leave policies and notify employees of any such policy changes.

3. Enhanced Unemployment Benefits

The CARES Act extended the unemployment benefit period by 13 weeks for individuals receiving unemployment benefits. The New Relief Package extends that benefit period by an additional 11 weeks, making the total extended unemployment eligibility period 24 weeks.
The new Stimulus Package also reinstates the supplemental federal unemployment benefit provided under the CARES Act, albeit at a lower weekly rate than before. The Relief Package provides for additional federal unemployment benefits of $300 per week to eligible unemployed workers until March 14, 2021 (reduced from the previous $600 per week that expired in July). The Relief Package offers no retroactive unemployment benefits.

The Coronavirus vaccine is initially only available under an “emergency use authorization” and is not fully licensed by the FDA. The question of whether employers can require employees to take a vaccine that has not been fully approved is a novel one. The EEOC, the agency that interprets and enforces the ADA and Title VII, may be reluctant about issuing guidance on the topic, leaving employers in legal limbo until the vaccine receives formal approval.

Employers are permitted to require employees to receive the flu shot and other job-related vaccines, which have been fully approved, provided the employer made certain exceptions for workers with qualified disabilities under the ADA or those who objected on religious grounds under Title VII.  The same exceptions may apply to an employer’s mandate related to the Coronavirus vaccine.

Given the short development timeline for the vaccine, and the polarization of the positions on the issue, surveys indicate that a size-able percentage of the country’s population is wary of taking it.  This creates practical barriers to enforcing a vaccine mandate for employers, even if such a mandate were to be legally permissible.  Employers who are not prepared to lose significant segments of their workforce who refuse to take the vaccine may consider:

  • offering incentives such as gift cards or discounts on insurance premiums
  • promoting taking the vaccine as a good health practice and good corporate citizenship, which studies indicate can increase employees’ faith in the vaccine; or
  • creating hurdles for employees who want to opt out of the vaccine by requiring them to complete paperwork explaining their reasoning

Depending on how the legal landscape develops, employers will have to decide whether to adopt a carrot or stick approach, or perhaps a blend of the two.

Sullivan Collins Law Group will continue to keep you updated on the latest pandemic-related developments in workplace law, and we are always available to answer questions and offer advice to our corporate clients as we navigate these unprecedented times together.

Sullivan Law Group congratulates Ann K. Sullivan on her selection as a “Super Lawyer” for 2021.  Ms. Sullivan has been selected for this honor every year since 2006.  Super Lawyers selects attorneys using a multiphase selection process to include peer nominations and evaluations, combined with independent research.  Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.  No more than 5% of lawyers in the state are named to the Super Lawyers list, and no more than 2.5% of lawyers in the state are named to the Rising Stars list.

CREDIT: By Sarah Kliff, Nov. 13, 2020 – NYTimes.com (https://www.nytimes.com/2020/11/13/upshot/coronavirus-surprise-bills-guide.html)


More Americans are getting tested for coronavirus than ever before — and that could mean more surprise medical bills.

Congress wrote rules in March that aimed to make coronavirus testing free for all Americans. Patients, with or without insurance, have found holes in those new coverage programs. They’ve faced bills that range from a few dollars to over $1,000.

I’ve spent much of the past four months collecting patients’ bills related to coronavirus. As part of that project, I’ve read through more than 100 patient stories about coronavirus tests. Many patients are happy to report no charge at all, while others have been billed large unexpected fees or denied claims related to coronavirus tests.

The surprise bills have hit uninsured Americans as well as those with robust coverage. The health data firm Castlight estimates that 2.4 percent of coronavirus test bills leave some share of the charge to consumers, which means there could be millions of patients facing fees they did not expect.

These are some simple steps you can take to lower your chances of becoming one of them.

If you can, get tested at a public site

Many states, counties and cities/towns now have public testing facilities. Very few patients have reported surprise medical bills from those testing sites (although it’s not impossible). You can typically use your state health department website to find public testing options.

If a public test site isn’t an option where you live, you might consider your primary care doctor or a federally qualified health clinic. The largest surprise coronavirus test bills I’ve reviewed tend to come from patients who are tested in hospitals and free-standing emergency rooms. Those places often bill patients for something called a facility fee, which is the charge for stepping into the room and seeking service.

Patients are finding that these fees can pop up even when they don’t actually set foot in the facility. Multiple patients at one Texas emergency room had $1,684 facility fees tacked onto their drive-through coronavirus tests. A patient in New York faced a $1,394 charge for her test at a tent outside a hospital. The majority of the bill was the facility fee. The investigative news site ProPublica has reported on how facility fees can sometimes cost as much as 10 times the coronavirus test itself.

If you get your test at a primary care provider, or at a public test site, you shouldn’t have to worry about that type of billing. They typically do not charge facility fees for coronavirus tests or any other types of care.

Ask your provider what they’ll bill you for

When patients receive a surprise medical bill related to a coronavirus test, the charges they face often are not for the test itself. Instead, they are for other services that the patient may not have known about.

Some of those services make sense. Many bills for coronavirus tests have fees for the doctor visit that went along with it. Others make less sense, like the ones that include screenings for sexually transmitted diseases that have nothing to do with coronavirus. Those extra fees appear to be a bit more common in emergency rooms, or when health providers send their samples to outside laboratories. But they can happen at public testing sites, too: One Connecticut doctor regularly tested patients for dozens of illnesses at a town drive-through. The patients thought they were simply getting coronavirus tests.

To avoid those extra charges, ask your provider what diseases they will screen for. It can be as simple as saying: “I understand I’m having a coronavirus test. Are there any other services you’ll bill me for?” Having a better understanding of that up front can save you a headache later, and you can make an informed decision about what care is actually needed. If your providers can’t tell you what they’ll bill for, that may be a signal you want to seek care elsewhere.

Uninsured? Ask your doctor to bill the government, not you

Uninsured patients have faced coronavirus bills upward of $1,000, according to billing documents reviewed by The New York Times.

That type of billing is legal: Health care providers are not required to provide free coronavirus tests to Americans who lack health insurance. But they do not necessarily have to bill patients directly. The federal government has set up a provider relief fund: Health providers can seek reimbursement for coronavirus testing and treatment provided to those without coverage. Once again, it pays to ask ahead of time how providers handle uninsured patients and whether they submit to the fund. Unfortunately, they are not required to do so — and could continue to pursue the debt.

You should also be aware that 17 states have authorized their state Medicaid plans to cover coronavirus test costs for uninsured Americans. This means your state government can pay the bill instead of you. You can find out if you live in one of these states here.


CREDIT: By Sarah Kliff, Nov. 13, 2020 – NYTimes.com (https://www.nytimes.com/2020/11/13/upshot/coronavirus-surprise-bills-guide.html)

We are heading into flu season, and this year brings heightened concern due to the COVID-19 pandemic and the possibility that the two viruses will simultaneously hit the workforce over the winter months, with potentially grave health consequences for some. As such, this year employers may find it more important than ever to adopt a mandatory flu vaccination policy. However, recent years have seen a wave of litigation by employees challenging such policies. Although most prevalent in the health care industry, where such policies follow CDC recommendations that workers who have direct contact with patients be vaccinated, employers in other sectors are beginning to adopt flu shot policies in an effort to prevent employee exposure to this sometimes deadly virus.

Legal challenges usually arise when the employer is unwilling to make an exception to its mandatory vaccination policy for pregnant employees, or those who have religious objections, although there have been a few successful challenges based on non-medical or non-religious reasons.

The EEOC has addressed the issue, noting that mandatory flu shots may be permissible, provided that the employer provide reasonable accommodation for religion under Title VII, and for pregnancy or other disability under the ADA. The bottom line for employers: (1) ensure there is a legitimate basis for your flu shot mandate, especially if operating outside the health care industry (this should be easier to do now that we are in the midst of a deadly pandemic); (2) communicate up front that employees may request an exemption, and carefully consider and document all such exemption requests; and (3) if unsure a request is valid, seek legal advice before taking adverse action against any employee who refuses the flu vaccine. Flu season brings enough worries about ending up in the hospital; employers should take precautions to ensure they don’t end up in the courthouse as well.

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