Thursday, July 14, 2022

Employer-sponsored Health Insurance Yields 47% ROI for U.S. Businesses

A new report from Avalere Health analyzing the return on investment (ROI) of employer-sponsored health insurance (ESI) estimated a 47% ROI for U.S. employers in 2022—increasing to a predicted 52% return in 2026. The report was commissioned by the U.S. Chamber of Commerce and focused on employers with 100 or more employees.  

Avalere Health analyzed various benefits of offering ESI, such as reduced direct medical costs, productivity, recruitment, retention, short- and long-term disability, and tax benefits. Consider the following analysis of key drivers and their ROI:
  • Productivity—$275.6 billion in 2022 ($346.6 billion in 2026)
  • Tax benefits—$119.2 billion in 2022 ($139.7 billion in 2026)
  • Recruitment—$141 billion in 2022 ($167 billion in 2026)
  • Reduction in direct medical costs—$101 billion in 2022 ($108 billion in 2026)
The ROI growth is attributed to various factors, including growing employment, anticipated wage increases, a projected rise in per-employee spending on wellness programs, and relatively flat employee turnover rates.
Share of Benefits by Component, as % of ROI

Employer Takeaway

Companies offering such insurance could anticipate receiving an average of $1.47 back in financial benefits for every dollar invested in ESI. The report also demonstrated that employers offering higher quality coverage and wages could likely expect a higher return on their ESI programs. Additionally, industries in which employers generally made more significant investments in ESI, such as wellness programs, tended to result in larger ROI. Since costs associated with turnover and recruitment are positively associated with wages, a higher ROI is expected in higher-wage industries.

Full report, here.  

Friday, June 24, 2022

Managers Saying Stupid Stuff in Response to an Employee’s Request for FMLA Leave

He said, what?  From Jeff Nowak at FMLA Insights

Over the course of 27 years working for the Sheriff, Sal developed a number of health conditions, including work-related post-traumatic stress disorder. Sal took quite a bit of FMLA leave over time, and as of September 2016, he already had used more than two-thirds of the 12 weeks he was allotted for FMLA. So, when he lined up to take FMLA leave yet again, the benefits manager overseeing FMLA benefits allegedly told Sal this time around:

'You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.' 


As the story goes, Sal retired days later, and he did what former employees are oft inclined to do — he sued his former employer.

Cost to Bring New Drugs to Market Inflating at 20% ANUALLY

From Bob Langreth at BenefitsPro

The median launch price of a new drug in the US soared from $2,115 in 2008 to $180,007 in 2021, a 20% annual inflation rate over the period, researchers at Harvard-affiliated Brigham and Women’s Hospital in Boston found. Even after adjusting for factors such as drugmakers’ focus on expensive disease categories like cancer and estimated discounts that manufacturers give some purchasers, the annual inflation rate in launch prices over the period was still almost 11%.  

How Doctor Offices Harvest Your Personal Health Information and Circumvent HIPAA Protection

Here is a great summary of a nefarious HIPAA circumvention from Geoffrey Fowler writing at the Washington Post

The doctor will sell you now.

Your intimate health information may not be as private as you think if you don’t look carefully at the forms you sign at the doctor’s office.

There’s a burgeoning business in harvesting our patient data to target us with ultra-personalized ads. Patients who think medical information should come from a doctor — rather than a pharmaceutical marketing department — might not like that.

But the good news is, you have the right to say no. I’ll show you what to be on the lookout for.

Several Washington Post readers recently wrote to Ask Help Desk about a consent form they were asked to sign while checking in for a doctor’s appointment. Most of us just hurriedly fill out whatever paperwork is put in front of us, but these eagle-eyed readers paused at this:

'I hereby authorize my health care provider to release to Phreesia’s check-in system my health information entered during the automated check-in process … to help determine the health-related materials I will receive as part of my use of Phreesia. The health-related materials may include information and advertisements related to treatments and therapies specific to my health status.'

But Phreesia doesn’t just make money by selling its software to doctor’s offices. It also has a business in selling ads to pharmaceutical companies that it displays after you fill in your forms. And it wants to use all that information you entered — what drugs you take, what illnesses you’ve had in the past — to tailor those ads to your specific medical needs.

I can understand why pharmaceutical companies might want this. The ads remind you to ask your doctor about whatever drug they’re pushing right before you go into the exam room. With access to your data, Phreesia can ensure that its advertising messages are shown to the most receptive audience at the moment they’re seeking care....


Monday, June 6, 2022

Compliance and Benefit Updates, June 6, 2022

Compliance Updates

The California Supreme Court unanimously ruled that an employee’s meal and rest period "premium pay is subject to the same wage statement and final pay requirements as other wages earned by employees. 

  • Employers must pay all wages, accrued vacation earned and other premium pay immediately upon termination.
  • Employers cannot withhold final paychecks to induce employees to return tools or equipment, pay back money owed or turn in forms or reports.
  • Final paychecks or deposits must be delivered at the time of termination. Employers should be conscious of possible delays caused by delivery or deposit."

FDA: Pharmacists and wholesalers can import drugs from Canada - "Pharmacists and drug wholesalers can import prescription medicines from Canada for up to two years as part of state programs aimed at bringing down drug costs, according to final FDA guidance released Thursday.

  • Why it matters: With President Biden's drug pricing agenda still stalled, the FDA is further clarifying how states could take advantage of lower drug costs abroad without the need to limit prices in the U.S.
  • Background: Both the Biden and Trump administrations embraced limited importation to bring down health costs, though experts view the policy as having limited impact."

Newsom Signs Compromise Law Raising The Limit On Medical Malpractice Damages - "California’s $250,000 limit on damages for pain and suffering caused by medical malpractice, a ceiling enacted by lawmakers in 1975 at the insistence of doctors and insurers, will be lifted next year. Gov Gavin Newsom signed compromise legislation Monday, sponsored by consumer advocates and supported by medical groups, that will not remove all limits on malpractice damages but will raise them to account for some of the inflation in the past 47 years. Under AB35 by Assembly Majority Leader Eloise G√≥mez Reyes, D-Colton (San Bernardino County), the new limits for noneconomic damages in 2023 will be $350,000 for nonfatal medical malpractice by a physician and $500,000 for malpractice causing death. The maximum will rise gradually over the next decade, to $750,000 for non-death cases and $1 million for fatal cases, and increase by 2% a year thereafter for inflation."

Pandemic Fatigue Dooms California’s Excessive Covid Vaccine Mandate Aspirations - "In January, progressive California Democrats vowed to adopt the toughest covid vaccine requirements in the country. Their proposals would have required most Californians to get the shots to go to school or work — without allowing exemptions to get out of them. Months later, the lawmakers pulled their bills before the first votes. One major vaccine proposal survives but faces an uphill battle. It would allow children ages 12 to 17 to get a covid-19 vaccine without parental permission. At least 10 other states permit some minors to do this. Democrats blamed the failure of their vaccine mandates on the changing nature and perception of the pandemic. They said the measures became unnecessary as case rates declined earlier this year and the public became less focused on the pandemic. Besides, they argued, the state isn’t vaccinating enough children, so requiring the shots for attendance would shut too many kids out of school."

Benefit News

HR managers are more burned out than ever. Who is supporting them? "Ninety-eight percent of HR professionals have felt burned out at work in the last six months, according to a recent survey conducted by workplace communication app Workvivo, and nearly 4 in 5 are open to leaving their jobs. ... HR teams and managers should work in tandem to share and clearly outline any mental health benefits their company offers"

Will the Pandemic’s Missing Workers Ever Return to the Labor Force? "Looking at those who have exited the labor force and are not retired:

  • 23 percent said that available jobs are not in their field of work interest.
  • 17 percent said they haven't been able to find a job that pays enough.
  • 9 percent said they have chosen to learn new work skills or want to pursue a different career path.
  • 27 percent said that if their savings ran out or ran low, it would motivate them to return."

Employers Pay 224% Of Medicare Prices For Hospital Services - Employer-sponsored health plans paid on average 224% of what Medicare paid to hospitals for the same services at the same facilities, according to a new study from RAND Corporation. The report covers billing for hospital inpatient and outpatient services in 2020. The study said that there were significant variances in prices across states or geographic areas and added that the difference in cost seemed to be linked to hospital market share rather than hospitals’ share of Medicare and Medicaid patients.

  • The researchers found that in Hawaii, Arkansas, and Washington, relative prices were under 175% of Medicare.
  • Other in states, such as Florida, West Virginia, and South Carolina, relative prices were at or above 310% of Medicare.
  • Prices for COVID-19 hospitalization were similar to prices for overall inpatient admissions and averaged 241% of what was paid for Medicare patients.

Note from Craig: This is why I wrote that "America Will Dramatically Change the Way It Provides Health Care by 2030." This trend cannot continue. The federal government controls prices by arbitrarily slashing what it will pay for services in Medicare and Medicaid. This forces hospitals to inflate what they charge for all services to private employer plans. Hence, the tax subsidy is really a cost shift to employers that far exceeds anything any of us pay in FICA. In short:

  1. Companies that are large enough (over 300 employees) will self-fund and reference base price their plans. Why pay 224% of Medicare when you can pay 140% and have 97% of your claims sail through without pushback. This saves an employer 20% to 30% on healthcare in the first year alone.
  2. Smaller companies will be forced into some sort of defined contribution scheme where the employee is punished for the year over year 6% to 9% increases. Perhaps, as I wrote in the above article this will be done mainly through individual HRAs.
  3. Lastly, I believe we'll end up with some sort of Medicaid (not Medicare, that is too expensive) safety net for all who are not fortunate enough to end up in numbers one or two above.

Ninth Circuit Rules That a Temporary Impairment Can Qualify as a “Disability” Under the ADA - "The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important question under federal disability law and could signal a significant change in how employers are required to address employees’ short-term medical limitations.

In Shields v. Credit One Bank N.A., plaintiff Shields was employed by Credit One Bank ('Bank') as a human resources generalist. Shields underwent biopsy surgery. The biopsy revealed that Shields did not have cancer, but she had a number of post-surgery limitations (e.g., unable to use her right arm to lift, pull, push, type, write, tie her own shoes or use a hair dryer), and these limitations indisputably precluded Shields from performing the essential functions of her position. The Bank put Shields on a short-term leave of absence, but when she was not ready to return to work after two months the Bank terminated her employment. Shields’ lawsuit alleges the Bank violated the ADA by terminating her rather than offering her a reasonable accommodation, specifically, extending her leave of absence to allow her additional recuperation time. The Bank defended on the grounds that Shields did not have a disability under the ADA because her post-surgery limitations, while significant, were not sufficiently 'permanent or long-term' to meet the law’s requirements. The District Court agreed and dismissed Shields’ claim. The Ninth Circuit reversed. Under the ADA, a disability is defined in relevant part as 'a physical or mental impairment that substantially limits one or more major life activities,' without any reference to how long the 'substantial[] limit[]' might last."

Health & Wellness

The caregiver crisis: How employers can support workers in this new reality - "America faces a caregiving crisis. Whether it’s caring for an aging parent, a sick spouse or a child, more than 50 million Americans are unpaid caregivers for family members and loved ones. Tens of millions of those caregivers are also balancing work with caregiving responsibilities. And while caregiving is a rewarding experience, recent data show that 71% of family caregivers with full-time jobs suffer from mental health challenges and more than half of caregivers say they are too burned out to do their job well. It’s no wonder so many family caregivers are thinking about leaving their jobs."

Half-cup of blueberries a day could keep dementia away, scientists say - "An apple a day may keep the doctor away, but a new study finds blueberries may be better for your brain. Researchers from the University of Cincinnati have found that a half-cup of blueberries can keep middle-aged adults from developing dementia as they get older. Moreover, the study finds adding the fruit to your diet lowers insulin levels and improves metabolic function — making it easier to burn fat for energy."

Friday, May 6, 2022

Compliance and Benefit News Updates, May 6, 2022

 Compliance Updates

IRS Information Letter Explains Requirements for Expenses to Qualify as Medical Care - “The IRS has released an information letter regarding the requirements for expenses to qualify as medical care under Code § 213. The letter responds to a request for guidance on when the cost of health and wellness coaching is medical care that can be reimbursed under health FSAs, HSAs, and other tax-favored accounts.”

Work From Home – SOS! Post-Pandemic Legal Hazards - “A Gallup poll last fall indicated that 61 percent of workers expect to work remotely at least part of the time in the future, and just 9 percent expect to work from home only minimally or not at all. With that in mind, employers and HR professionals must consider how to properly navigate the legal hazards stemming from our new normal. The following provides some key considerations in successfully managing a remote workforce.”

Cal/OSHA Approves Third Revised ETS and Clarifies Position on Some Lingering Questions - “California’s Division of Occupational Safety and Health (Cal/OSHA or “the Division”) Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard (“3rd Revised ETS”)… Under Governor Newsom’s previous executive order that paved the way this readoption, the 3rd Revised ETS will become effective when the Office of Administrative Law completes its review and files it with the secretary of state, which is anticipated to occur before the end of the first week of May 2022, and will remain in effect through December 31, 2022.”

Which Federal Employment Laws Apply to My Company - There are a number of different federal employment laws that have their own rules for covered employers. Employers should be aware of the federal employment laws that may apply to their company. An employer’s size, or the number of employees, is a key factor in determining which federal employment laws the employer must comply with. Some federal laws, such as the Equal Pay Act (EPA), apply to all employers, regardless of size. However, other laws, such as the Family and Medical Leave Act (FMLA), only apply to employers that reach a certain employee count. Also, some federal laws, such as COBRA, include exclusions for certain types of employers (for example, churches). This Compliance Overview provides a high-level overview of key federal employment laws and explains which employers they apply to. Most states also have their own labor and employment laws. This summary does not address state labor laws, and it also does not address additional compliance requirements for companies that contract with the federal government or businesses in specific industries.

Benefit News

U.S. Hospitals Struggle to Absorb Pandemic-Era Rising Costs - "Labor costs per patient jumped by 19% in 2021 from 2019, and supplies rose by over 20% per patient during that period, according to the report. Nursing expenses shifted heavily toward travel nurses. The travelers’ share of nursing budgets rose to 39% in 2022 from 5% in 2019."

Spending on U.S. Medicines Rose 12% in 2021 Due to COVID-19 Vaccines and Therapies, Says IQVIA Institute for Human Data Science - Spending on medicines in the United States, at estimated net manufacturer prices, reached $407 billion in 2021, up 12% over 2020, as COVID-19 vaccines and therapeutics became widely available and added $29 billion in related spending. That’s according to a new U.S. Medicines Trends 2022 Report, released today by the IQVIA Institute for Human Data Science. In the same year, the non-COVID medicines market grew more slowly, at 5%, from the growing impact of biosimilars, which increased significantly, offsetting increased use of branded medicines.

HSA/HDHP limits for 2023 - HSA annual contribution limits for individual and family coverage will be $3,850 and $7,750, respectively. The HDHP minimum deductible for individual coverage will increase to $1,500, and $3,000 for family coverage. HDHP out-of-pocket maximum expense limits will be capped at $7,500 for individual coverage and $15,000 for family coverage.

Wednesday, April 13, 2022

Year Over Year Food Price Inflation

Here are the prices increases in various food categories that make up the Consumer Price Index report.

SOURCE U.S. Bureau of Labor Statistics as reported by the Detroit Free Press

Thursday, April 7, 2022

Obamacare's Twelfth Birthday, How It's Going with Armstrong and Getty

Spent a couple segments on the Armstrong and Gettys show this morning discussing Obamacare's accomplishments after twelve years. 


Here are my show notes for those who want to read more on the topic.  

Thursday, March 24, 2022

A Litany of COVID Vaccination, Abortion and Gun Legislation Proposed in California

Over the next few weeks, California's legislature will be voting on a myriad of newly proposed laws impacting healthcare, individual rights, and employer responsibility.  Here is a brief summary of some of them:  

From CalMatters:  

Taken together, the adoption of these bills would make California an outlier among states — and give it the country’s strictest COVID-19 regulations. Other states are considering various mandates and legislation related to COVID-19, but none appear to have the coordination of this effort, steered by some of the most powerful legislators in Sacramento.

“These bills all attempt to bring cohesion, consistency and clarity to our overall approach and response to the pandemic,” said Democratic Sen. Josh Newman of Fullerton, a member of the group.

The bills:
    • SB 871 would require all children 0 to 17 to get the COVID-19 vaccine to attend child care or school;
    • SB 866 would allow kids 12 to 17 to get the COVID-19 vaccine without parental consent;
    • SB 1479 would require schools to continue testing and to create testing plans;
    • SB 1018 would require online platforms to be more transparent about how information is pushed out to consumers;
    • SB 1464 would force law enforcement officials to enforce public health orders;
    • AB 1993 would require all employees, including independent contractors, to show proof of COVID-19 vaccine to work in California - defeated on March 29th;
    • AB 1797 would make changes to the California Immunization Record Database;
    • AB 2098 would reclassify the sharing of COVID-19 “misinformation” by doctors and surgeons as unprofessional conduct that would result in disciplinary action.  
Critics said the bills infringe on the health privacy of children, interfere with how doctors work, impose a burden on businesses and workers, and rely on vaccines that do not in many cases prevent the transmission of COVID-19.

Other legislation on tap in the Golden State:  

  • AB 1594 encourages California residents to sue gun makers, distributors of ghost guns, and "assault weapons" if they fail to "enforce reasonable controls, ... and take reasonable precautions to ensure that the [gun manufacturer] does not sell, distribute, or provide a firearm-related product to a downstream distributor or retailer of firearm-related products who fails to establish, implement, and enforce reasonable controls.  The bill would also prohibit a firearm industry member from manufacturing, marketing, importing, offering for wholesale, or offering for retail sale a firearm-related product that is likely to create a substantial and unreasonable risk of harm to public health and safety." 
  • Another bill proposed by Assembly Member Scott Wiener of San Francisco, "would render unenforceable in California any out-of-state court judgments seeking to remove children from their parents’ custody because they have received gender-affirming surgeries, hormone therapy, and other transgender medical care." 
  • Under SB 1142, taxpayer funds could be spent to help low-income California residents obtain abortions.  More significantly, the fund would be available to help out-of-state residents get abortions as well.  The legislation proposes, " the commission shall not require the submission of any identifying personal information about individuals receiving practical support services as part of an application for a grant [for an aborition] or reporting of expenditures and activities using grant [abortion] funds under this article." 

  • In order to "make capitalism more sustainable and humane," U.S. House Representative Mark Takano (CA) has proposed legislation that would reduce the standard workweek from 40 hours to 32 hours. 

Tuesday, March 1, 2022

Top 10 Most Expensive Chronic Diseases for Healthcare Payers

From  HealthPayerIntelligence

The top 10 most expensive chronic diseases for healthcare payers eat up significant healthcare dollars. ...Healthcare spending reached a total of $4.1 trillion in 2020, based upon estimates from CMS. Spending is expected to continue to grow at an average of 5.4 percent through 2025, with chronic diseases treatment comprising a significant portion of that spending. Based on the latest data from the CDC and presented in descending order, here are the top 10 most expensive chronic diseases for healthcare payers to treat.

  1. Heart disease and stroke costs in the US total $363 billion per year
  2. Diabetes care cost $327 billion in 2017
  3. In the US, the total cost of arthritis was an estimated $304 billion
  4. Excessive alcohol use cost the US economy $249 billion, or roughly $2.05 per drink
  5. Cancer care is estimated to cost $240 billion
  6. The United States spends $147 billion on healthcare related to obesity and roughly $117 billion on costs associated with inadequate physical activity
  7. Alzheimer's and related dementia, $244 billion
  8. Smoking, $225 billion
  9. Tooth decay, $45 billion
  10. Epilepsy, $8.6 billion


Wednesday, February 16, 2022

California Adopts COVID Sick Leave—Again

California has passed a new version of Supplemental Paid Sick Leave (SPSL) that will take effect on February 19, 2022, and apply retroactively back to January 1, 2022. The law expires on September 30, 2022. The law applies to employers with 26 or more employees. FAQs should be available soon on the Labor Commissioner’s webpage. Below are the key points from the statute.

Employee Eligibility

All employees of covered employers are immediately eligible, regardless of status, hours worked per week, or length of employment.

Amount of Leave

This new SPSL provides two separate banks of leaves: one that employees can access for numerous reasons related to COVID (we’ll call this Standard SPSL) and another they can access only when they or a family member test positive for COVID-19 (we’ll call this Positive Test SPSL).

Full-time employees (as defined by the employer) and those who have worked, or were scheduled to work, an average of 40 hours (or more) over the two weeks before their leave are entitled to 40 hours for Standard SPSL and an additional 40 hours for Positive Test SPSL.

Part-time employees are entitled to the number of hours they are usually scheduled to work in a week. If they have a variable schedule, they are entitled to seven times the average number of hours they worked each day in the previous six months (or the entire duration of employment if they’ve worked less than six months) or, if they have worked for seven days or less, the number of hours they have worked before taking leave. The same calculation applies to their bank of Standard SPSL hours and their bank of Positive Test SPSL hours.

No employee is entitled to more than 80 hours of SPSL between January 1, 2022, and September 30, 2022.

Use of Leave

Employees can take Standard SPSL if they are unable to work or telework because:
  • They are subject to a quarantine or isolation period related to COVID-19 according to an order or guidance of a public health authority.
  • They have been advised by a health care provider to isolate or quarantine due to COVID-19.
  • They are attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster.
  • They are experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster (for each shot, the employer can limit leave to three days or 24 hours, inclusive of time spent getting the shot, unless the employee provides verification from a health care provider that symptoms are ongoing).
  • They are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • They are caring for a family member who is isolating or quarantining because of COVID-19 according to an order or guidance of a public health authority or their health care provider’s advice.
  • The covered 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.

Employees can use their Positive Test SPSL hours if they are unable to work or telework because:
  • They test positive for COVID-19
  • A family member they provide care for tests positive for COVID-19

Employers can’t require employees to:
  • Exhaust their Standard SPSL hours before using their Positive Test SPSL hours;
  • Use their state-mandated paid sick leave (PSL), vacation, PTO, or any other leave benefit before or instead of using SPSL for a covered reason; or
  • Use SPSL prior to providing paid leave under any Cal-OSHA COVID-19 Emergency Temporary Standard (e.g., in lieu of exclusion pay).
  • Use a certain amount of leave or use leave when they don’t want to. Employees have the right to choose when to use their SPSL and how much to use.

Rate of Pay

Non-exempt employees should be paid at their regular rate of pay for the workweek during which they use leave. If their rate of pay is not determinable just by looking at the week in question, divide the employee’s total wages (not including overtime or premium pay) by the employee’s total non-overtime hours worked in the full pay periods in the 90 days before they take leave. Exempt employees should be paid at the same rate you pay them for other forms of paid leave.

Employers can limit pay for SPSL to $511 per day per employee and $5,110 total per employee.

Offsetting an Employee’s SPSL Hours

Employers who provided an employee with another form of COVID-specific paid leave on or after January 1, 2022, can count those hours toward the employee’s SPSL entitlement. The leave provided must have been available for a reason covered by SPSL. The offset does not apply if an employee used their state-mandated paid sick leave (PSL), PTO, vacation, or other non-COVID leave.

There are two likely scenarios where an offset will apply: If an employer is voluntarily providing COVID-specific leave, separate from PSL and their regular PTO program; or if the employer has provided paid leave under a city- or county-mandated COVID-specific leave law.

Leaves Taken Between January 1 and February 18, 2022

If an employee took leave between January 1, 2022, and February 18, 2022, for a qualifying reason under the new SPSL, but was not paid for this leave in the amount required under this law, they have the right to request a retroactive payment equal to the amount required.

After the employee makes the oral or written request, the employer will have until the payday of the next full pay period to pay the retroactive SPSL.

An employee who used PSL or another type of paid time off for a qualifying reason between January 1 and February 18 will be entitled to request, orally or in writing, that those hours be converted to SPSL. Hours that were used from another bank (e.g., PSL or PTO) should be credited back to the employee.

Documentation from Employees

Employees are entitled to take Standard SPSL immediately upon oral or written request and may not be required to provide medical certification or proof of their need for leave.

Employers can require proof of an employee’s positive COVID-19 test to confirm their need for additional paid leave via Positive Test SPSL. While the law says an employer can also require proof of a family member’s positive test, the EEOC (Equal Employment Opportunity Commission) believes that this is prohibited by the federal Genetic Information Nondisclosure Act. We are hoping the state (or the EEOC) will provide guidance on this conflict.

Employers can require employees who take Positive Test SPSL to provide a negative test five or more days after their positive test before returning to the workplace. If this is required, the employer must pay for it.

Mandatory Notice

Employers must post a state-provided notice in a conspicuous location in the workplace. Employers whose workforces are remote, or partly remote, should ensure that those employees see the poster, either by sending it via email or posting it online. That notice should be made available next week on the Labor Commissioner’s webpage. We recommend checking this page frequently for the notice as well as promised FAQs.

Employers must also notify employees of how much SPSL they have used each pay period on their itemized wage statements or on a separate writing at the time wages are paid (even if that number is “0”). This requirement won’t be enforced until the next full pay period following February 19, so you have some time to work with your payroll department or provider to set this up.

Of note, last year’s version of SPSL required that employers show employees the remaining balance of their SPSL. Presumably, they have changed this rule because an employee’s balance is unknown—it will depend on whether they ever qualify for Positive Test SPSL, and for many employees, their balance will also depend on how many hours they have worked before taking leave.