UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).

Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

In a one-line ruling on Monday, December 13, 2021, the U.S. Supreme Court dismissed the last of the legal challenges to the vaccine mandate for health care workers in New York. It also dismissed a challenge to a similar mandate for New York City Education Department employees, denied challenges to similar mandates for employees at Massachusetts General Hospital, and a challenge against a Maine mandate.

The New York plaintiffs, two groups of health care employees, sought an injunction against the mandate after the Second Circuit found it lawful. These Suits were brought in two courts, the Eastern and Northern Districts in New York, and ultimately were consolidated into one challenge. The argument was, by excluding religious exemptions, the New York mandate infringed on religious freedom. These New York plaintiffs claim that the vaccines offend certain religions, because they used fetal cell lines during testing. This theory has now been rejected by several courts.

This signals a trend by the high court, which is to honor mandates issued by individual state governments. This decision also clears the way for New York health care providers to confidently enforce the vaccine mandate, knowing that it has now been backed by the courts.

Continue Reading The Latest on Vaccines and Other COVID News

Where the Mandate Stands and Current Considerations for Contractors and Subcontractors

The federal contractor vaccine rollout continues to present thorny issues for federal contractors.  President Biden issued Executive Order (“E.O.”) 14042 in early September 2021, requiring federal contractor employees to get vaccinated against COVID-19.  The E.O. was followed by guidance issued by the Safer Federal Workforce Task Force (“Task Force”) in late September 2021, which has been frequently updated in the months since.

As described more fully in our prior post, under the mandate, implemented through the Task Force guidance incorporated into clauses issued by federal agencies, vaccines are mandatory for federal contractor employees working on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees. Contractors must also comply with masking and physical distancing requirements.  The mandate applies to subcontractors at any tier, and applies to contractors of all sizes — small, medium or large.  The E.O. and Task Force guidance immediately gave rise to many compliance questions and concerns over impact on contract or subcontract performance.  Legal challenges to the contractor vaccine requirement and actions by numerous states have further complicated an already difficult compliance landscape.

Continue Reading Uncertainty with the Federal Contractor Vaccine Mandate

Days after New York City announced its first positive case of the Omicron variant, Mayor Bill DeBlasio announced a sweeping upcoming vaccine mandate for virtually all private employers in the City. According to DeBlasio, this “preemptive strike,” set to go into effect on December 27, represents the City’s effort to get out ahead of the double threat posed by the new, highly contagious variant, and the potential increased transmission brought on by holiday travel and gatherings. However, City Hall’s hurried response has left City businesses reeling as they try to quickly adapt to unclear requirements.

What we know

First, DeBlasio announced the latest expansion to the “Key to NYC” program, which has already notably required proof of vaccination for anyone entering indoor bars and restaurants, fitness facilities, and entertainment and performance venues. Starting on December 14, children aged 5-11 will be required to show proof of at least one vaccine dose to enter those businesses. On December 27, New Yorkers aged 12 and older will be required to show proof of two vaccine doses (excepting the Johnson & Johnson vaccine, which only requires one).

More impactful is the unprecedented vaccine mandate for private-sector workers. The City will publish guidance on December 15, but for now, businesses are scrambling to anticipate their obligations before the mandate takes effect on December 27.

Continue Reading DeBlasio’s Parthian Shots: What Businesses Need to Know

To address growing cybersecurity risks to plan participants and their retirement assets, the Department of Labor (DOL) issued a set of guidance for retirement plan sponsors and fiduciaries, their service providers, and plan participants aimed at mitigating cybersecurity risks. The DOL has also begun examining plans’ cybersecurity programs. Its information requests, which are very detailed and encompassing, signal that the guidelines are not optional and that the DOL is serious about enforcing them. The below is a summary of the DOL’s guidance and items it has signaled will be reviewed in a cybersecurity audit.

DOL Guidance
The DOL released its guidance on April 14, 2021 in three pieces. The first piece, “Tips for Hiring a Service Provider,” is aimed at assisting plan sponsors and fiduciaries in choosing service providers with robust cybersecurity practices. The initial guidance makes clear that the DOL considers the management of cybersecurity risk – including the scrutinizing of service providers’ cybersecurity policies and practices – to be part of a fiduciary’s duties. The tips include:

  • Making sure that contracts with service providers require their ongoing compliance with cybersecurity and information security standards, and being wary of provisions that limit the service provider’s responsibility for IT security breaches;
  • Looking for contract provisions that give plan sponsors and fiduciaries the right to review the service provider’s audit results demonstrating compliance with industry security standards;
  • Examining the service provider’s track record in the industry, including public information regarding information security incidents;
  • Inquiring as to any past security breaches, how they came about, and how the service provider responded; and
  • Finding out whether the service provider has any insurance policies that would cover losses caused by cybersecurity and identity theft breaches, whether internal or external. Continue Reading DOL Issues Cybersecurity Guidelines and Begins Audits

This Advisory provides a summary of recent developments impacting Affordable Care Act (“ACA”) requirements applicable to employers, as well as other recent changes impacting employer-sponsored health plans.

ACA Affordability Threshold Decrease

Employer-sponsored health plans will satisfy the ACA affordability requirement in 2022 only if the lowest-cost, self-only coverage option offered under the plan does not exceed 9.61% of an employee’s household income, down from 9.83% in 2021.  This means that a plan that was affordable in 2021 may not be in 2022, even without any increase in premiums.  Employers should confirm that their health plans will remain affordable for the 2022 plan year under the new lower threshold.

Advanced Explanation of Benefits (EOBs)

Effective for plan years beginning on or after January 1, 2022, plans and insurers, within one business day after receiving a provider’s good faith estimate of the expected charge to the plan or insurer for an item or service (as required under the No Surprises Act), must provide participants and beneficiaries with a notice containing various pieces of information, including the following:

  • For in-network providers or facilities, the plan’s contracted rate for the item or service, based on the billing and diagnostic codes furnished by the provider or facility;
  • For out-of-network providers or facilities, a description of how the participant or beneficiary can obtain information about the plan’s in-network providers or facilities (if any); and
  • A good faith estimate of the amount of cost-sharing for which the participant or beneficiary would be responsible concerning the item or service.

The Departments of Labor, Health and Human Services, and the Treasury (the “Departments”) have announced that they will not issue regulations addressing these advanced EOB requirements before the effective date of January 1, 2022 and will defer enforcement until they have done so.  However, plans should prepare to meet these requirements as soon as possible, as doing so may require substantial effort, including the engagement of third-party administrators (TPAs) to provide disclosures.

Continue Reading New Health Plan Requirements and Other Updates

In September, as the Delta variant was sweeping the nation, President Biden announced a comprehensive national strategy to get more Americans vaccinated and to set the path out of the pandemic. As part of this plan, the President announced that OSHA would be issuing regulations requiring any employer with 100 or more employees to ensure that workers are vaccinated.

In addition, the Centers for Medicaid and Medicare Services (CMS) and President Biden’s Safer Federal Workforce Task Force (SFWTF) have issued their own rules requiring the vaccination of healthcare workers and federal contractors, which we have covered previously here and here. Those employers covered by the CMS and SFWTF rules do not have to comply with the new OSHA mandate.

Today, OSHA promulgated this rule, via an Emergency Temporary Standard (ETS), covering employers with 100 or more employees. OSHA estimates this will cover approximately 2/3 of all workers in the United States.

Continue Reading The Federal COVID Vaccine Rule is Here

Updated October 21, 2021.

Employers implementing mandatory COVID-19 vaccination programs are no doubt starting to feel the pressure resulting from an influx of religious and disability accommodation requests. In all the internal commotion (and resulting strain on human resources departments), employers must remember that failing to implement an adequate process for evaluating and responding to accommodation requests can have real legal consequences.

An action just filed in the U.S. District Court for the District of Massachusetts illustrates just this point. See, Together Employees et al. v. Mass General Brigham Inc., case number 1:21-cv-11686. Mass General, the hospital network employer in that case, implemented a mandatory vaccination program, announcing that employees who failed to receive the vaccination would be placed on unpaid leave and, ultimately, could be terminated. The hospital network, as the EEOC recommends, invited employees to apply for medical and/or religious exemptions.

According to the complaint, the lawsuit arises from the hospital’s decision to deny the exemption requests of 229 employees. The plaintiff Together Employees, an unincorporated association of the impacted employees, seeks injunctive relief, claiming that the hospital did not really analyze their requests, and engaged in a wholesale denial of accommodations without any showing of undue hardship by Mass General. The employees allege that the hospital network’s accommodations process was designed to hinder employees from adequately supporting their requests for an accommodation, resulting in denials for almost all who applied. Among other issues with the process, the employees claim that the forms did not give them space to explain the need for the exemption, or allow them to attach supporting documentation.

Continue Reading The Accommodation Process Requires More Than Lip Service

The COVID-19 pandemic has laid bare the serious threat posed by unchecked airborne infectious diseases, and has prompted New York to pass the Health and Essential Rights Act (aka the “HERO Act”), which serves to establish health and safety protocols for workers across the state. Like we said in our coverage back in June, the mandatory safety standards set forth by the act apply to all airborne diseases, not just COVID-19, and as such are intended to remain a permanent feature of the employee safety measures established by virtually all private employers across the state.

As with the introduction of any new piece of legislation, questions remained even after the law came into effect. At the end of September, the Department of Labor issued an updated FAQ to address lingering and emergent issues with Section 1 of the Act, which relates to the implementation of safety plans.

Until at least October 31, COVID-19 continues to be classified as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act.

That means that before October 31, private employers must:

  1. Draft a plan that complies with DOL guidance on the HERO Act;
  2. Put that plan into effect; and
  3. Give employees (and contractors!) a verbal review of the plan.

Continue Reading Show Me a HERO: Department of Labor Clarifies New York’s HERO Act

On September 9, 2021, President Biden issued Executive Order 14042, requiring federal contractors to be vaccinated against COVID-19. On September 24, 2021, the Safer Federal Workforce Task Force issued its 14-page guidance on the order, detailing the new obligations and responding to some frequently asked questions. These obligations and FAQs will be incorporated into federal government contracts and subcontracts and require vaccination of covered employees by December 8. Kelley Drye’s government contracts group prepared a comprehensive summary of the recent federal contractor and subcontractor vaccine mandate, which has broad implications for many companies within the federal government supply chain. For answers to any questions specific to your business and legal obligations, contact Kelley Drye & Warren LLP.

Continue Reading Top 10 Takeaways from Federal Contractor and Subcontractor Vaccine Mandate