Friday, May 21, 2021

Benefit Compliance Update: Employer Vax Tracking; Mask Rules; COBRA Q&A & Waste in Healthcare

 Templates, Tools & Legal Notices

Santa Clara County’s New COVID-19 Rules: Employers Must Obtain Vaccination Status, Report Positive Test Results, and Enforce Mask Use - "On May 18, 2021, Santa Clara County, California, issued a health order that both relieves employers of some earlier COVID-19–related requirements and imposes new obligations on employers, particularly with respect to employees’ vaccination status. Santa Clara County also issued the 'Mandatory Directive on Use of Face Coverings' and the 'Mandatory Directive For Unvaccinated Personnel.' The health order and mandatory directives take effect on May 19, 2021. ... All employers are required to obtain and record the vaccination status of all employees by June 1, 2021. The records may consist of an employee’s vaccination card or self-certification of full vaccination. Employers must ask unvaccinated employees about their status every 14 days. Employees who decline to respond 'must … be treated as unvaccinated.'"


IRS Issues Guidance Regarding American Rescue Plan Act COBRA Subsidy - “The Notice clarifies that an individual who experiences a special enrollment opportunity that is suspended pursuant to the EBSA Disaster Relief Notice is not eligible for the COBRA premium subsidy if that special enrollment period continues to remain suspended during the ARPA COBRA premium subsidy period. Practically, plan sponsors do not know if an individual is eligible for a special enrollment opportunity for other group health plan coverage, making the need for an opt-in and attestation even more critical to being able to claim the tax credit.”

HHS to Enforce Section 1557 of the Affordable Care Act to Prohibit Discrimination Based on Sexual Orientation and Gender Identity - “The U.S. Department of Health and Human Services (HHS) announced on May 10 that its Office for Civil Rights (OCR) will begin enforcing Section 1557 of the Affordable Care Act to prohibit discrimination based on sexual orientation and gender identity.”

Employers Have 3 Options in Light of OSHA’s Unmasking Announcement - “Responding to a huge looming question for employers, the Occupational Safety and Health Administration (OSHA) just issued an announcement referring businesses to the CDC’s new guidance advising that fully vaccinated people no longer need to wear a mask or social distance in non-healthcare settings. But neither OSHA’s May 17 announcement nor the CDC’s May 13…”

CDC Says Fully Vaccinated Individuals Don’t Need Masks; But Should Employers Change Their Face Covering Requirements? - “CDC issues guidance and not law. While many state and local orders and laws are crafted based on CDC guidance, changes to these orders and laws are often executed days or weeks after CDC guidance is issued, and often feature nuances not seen in the initial CDC guidance…In jurisdictions where COVID-19 health and safety laws no longer require masking or social distancing for fully vaccinated individuals, employers are faced with employment law and practical considerations, including the following…”

ERISA Cybersecurity Lessons for Employers - “The DOL’s best practices guidance includes many specific action points. Several of the DOL’s recommendations are highlighted below…The DOL’s publication of the guidance may indicate that the agency will pay more attention to cybersecurity in future plan audits.”

Have You Been Vaccinated? Your Employer (and Everyone Else) Wants to Know - “We provide some guidance below regarding vaccine verification and some considerations for employers thinking about instituting vaccine policies.”

Potential ERISA Fiduciary Duty Issues with BCBSA $2.67 Billion Settlement - “Under ERISA, any portion of the settlement proceeds that are considered to be “plan assets” must be used for the exclusive benefit of participants in the plan (and their beneficiaries), or to defray the reasonable administrative expenses of the plan. Given the size of the settlement, we are hopeful that the Department of Labor (“DOL”) will issue guidance on these fiduciary duty issues.”

Gifts and bonuses in exchange for vaccination could violate the law - “Employers considering a vaccine incentive program should use caution, delaying if possible, for clearer guidance. However, if a program is moving forward, employers must make the program voluntary, should keep any incentives small in value, offer accommodations for medical exceptions and religious beliefs, and offer non-monetary or in-kind incentives to avoid violations.”

California OSHA Issues Frequently Asked Questions to Clarify Guidance for Vaccinated Employees - “The new guidance provides that employers can now follow the California Department of Public Health (CDPH) COVID-19 Public Health Recommendations for Fully Vaccinated Individuals. CDPH guidance states that fully vaccinated employees must be excluded from the workplace only when there have been COVID-19 cases at the worksite (or they have had a COVID-19 exposure) and they show symptoms of COVID-19.”

Benefit News

25% of Healthcare is Wasted in the U.S. - "A review of articles published in the New England Journal of Medicine determined that one-third of 'established medical practices … are found to be no better than a less expensive, simpler, or easier therapy or approach.' Another study estimated that 25% of all healthcare spending from 2012 to 2019 was wasted."

Are Employer-Sponsored Health Plans on Their Way Out? - The history of why we get our benefits from employers dates back to WWII, when companies began using healthcare as a means to attract talent, particularly women. While employer-sponsored health insurance has been the norm ever since, it is clear that consumers’ needs have shifted. One-size-fits-many coverage may no longer cut it for Americans with heightened expectations and diverse health concerns. Going forward, we may see employer-sponsored health insurance going the way of pension plans. Consumers are showing they’re ready for the change, with data revealing that 41% of consumers say they think health insurance should be decoupled from employment. As business leaders look ahead to the next couple of years, we have an opportunity to meet the moment and reimagine what health insurance looks like, and what incentives companies should offer to attract the best talent.