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On April 10, 2023, President Biden signed a resolution ending the COVID-19 national emergency that had been in place since 2020. The Biden administration had previously announced a May 11, 2023, end date to both the national emergency and the public health emergency (PHE), but the signing of the bipartisan legislation terminates the national emergency as of April 10, 2023. The PHE is still scheduled to end May 11, 2023.
Various employee benefit plan deadlines had been extended by disregarding an “outbreak period” from March 1, 2020, until 60 days after the announced end of the national emergency. Since the national emergency ended on April 10, 2023, the outbreak period will end on June 9, 2023. Once the outbreak period ends, health plans can return to their nonextended deadlines. Key deadlines extended during the outbreak period include:
The Biden administration has stated it will continue working with federal agencies to wind down the national emergency. Prior guidance issued on March 29, 2023, addresses how certain health plan requirements related to the COVID-19 pandemic will change when the emergency periods end. While this guidance was issued before the resolution ended the national emergency, the clarifications regarding changes to benefits after the end of the emergency periods and the reinstatement of normal deadlines still apply.
According to federal agencies, if changes are made to a plan or coverage after the end of the PHE or national emergency, plan sponsors and employers must clearly communicate these changes, including any limitations on benefits, to participants and beneficiaries before they take effect. Additional resources on the ending of the COVID-19 emergency periods are available on the Department of Labor’s Response to COVID-19 website.
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On Jan. 6, 2022, the Department of Justice (DOJ) issued answers to frequently asked questions (FAQs) about how the Americans with Disabilities Act (ADA) applies to businesses and other entities under certain circumstances related to the COVID-19 pandemic.
The new FAQs mainly focus on compliance with Titles II and III of the ADA. Title II applies to state and local governments, while Title III applies to businesses that are generally open to the public and that fall into one of 12 categories listed in the law. Among others, these include restaurants, movie theaters, schools, day care facilities, recreation facilities and doctors’ offices. The FAQs also include information about compliance with Title I, which applies to employers with 15 or more employees. In particular, the FAQs address questions about situations involving service animals, mask requirements, long COVID-19, medical facility visitation and outdoor restaurant or retail spaces. This Compliance Bulletin provides the FAQs in full below.
All entities subject to Titles II and III of the ADA should become familiar with the DOJ’s new FAQs. They should also follow the most current guidelines and suggestions for COVID-19 safety as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies.
Employers with 15 or more employees should also review guidance issued by the Equal Employment Opportunity Commission (EEOC) about how the ADA and other federal fair employment laws apply during the COVID-19 pandemic. Smaller employers should become familiar with any applicable rules under similar applicable state or local laws.
Can a business stop me from bringing in my service animal because of the COVID-19 pandemic?
No. The rules for admitting service animals are the same even during the pandemic. A service animal is a dog that has been individually trained to do work or perform tasks for a person with a disability. The tasks must be directly related to the person’s disability.
A business or a state/local government generally must allow a service animal to accompany a person with a disability into any area where the public is allowed to go. A service animal cannot be excluded just because staff can provide the same services.
According to the CDC, the risk of animals spreading COVID-19 to people is considered low.
For example, a restaurant offers indoor and outdoor seating because of the COVID-19 pandemic. A woman with multiple sclerosis arrives at the restaurant with her service dog. The restaurant cannot require the woman to dine outside because of her service dog.
Does the DOJ issue exemptions from mask requirements?
No. The DOJ does not provide exemptions from mask requirements but is aware of certain postings and flyers about this on the internet, some of which include the DOJ’s seal. These postings were not issued or endorsed by the DOJ.
Can long COVID-19 be a disability under the ADA?
Yes. Long COVID-19 can be a disability under the ADA if it substantially limits one or more major life activities. There is a wide range of ways that this could present itself. Some examples include:
Is long COVID-19 always a disability under the ADA?
No. An individualized analysis is needed to determine whether a person’s long COVID-19 condition substantially limits the person’s health and daily living. For more information, see the DOJ’s Guidance on “Long COVID” as a Disability Under the ADA, Section 504 and Section 1557.
Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic?
Yes. The EEOC provides guidance about the ADA and other federal laws that protect individuals against employment discrimination during the COVID-19 pandemic.
Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion or aide in order to equally access care?
No. To limit the spread of COVID-19, medical providers have changed many of their policies, including restricting nonpatients from entering health care facilities. However, where these policies do not account for the needs of people with disabilities, they may result in unequal care and violate the ADA. For instance, where a patient’s disability prevents them from providing their medical history or understanding medical decisions or directions, the medical provider should explore whether a modification to its visitor policy may be safely carried out.
Several important limitations apply. Not every person with a disability needs someone with them in order to equally access medical care. For those who do not, excluding a companion does not violate the ADA. Also, the ADA recognizes that protecting the rights of individuals with disabilities may need to be balanced with other safety concerns. For instance, the ADA allows health care providers to impose “legitimate safety requirements” necessary for safe operation. But a blanket ban on all nonpatients in all care settings does not fall into this narrow category—even in the midst of COVID-19. Where the exclusion is necessary from a public health perspective, medical providers should think creatively about how to best serve the needs of the patient with a disability.
Examples include the following:
Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19?
Yes. Just as the ADA requires businesses to make indoor restaurants or retail shops accessible to people with disabilities, it requires businesses to make outdoor spaces for dining and retail accessible as well. Local governments must also make sure that their programs and activities—such as providing and maintaining curb ramps, accessible routes on sidewalks and accessible street parking—continue to comply with the ADA even though “business” has moved outside.
For a restaurant, this could mean providing an accessible route from the accessible parking and the accessible sidewalk to the outdoor dining area’s accessible seating. An accessible route is one that is free of obstacles—such as sandwich boards, heaters, planters, chairs, or tables—that would make it difficult or impossible for a person with a mobility disability to access the business. For an outdoor retail space, this could mean providing an accessible route from the accessible parking and the accessible sidewalk to and throughout the retail space and providing an accessible check-out area.
Additionally, this could mean removing objects that stick out or protrude into the sidewalks that people use to get to and through these spaces. Many objects, such as umbrellas, canopies, tables, tree branches or displays, are at heights that cannot be detected by someone using a cane to assist with their vision disability. These protruding objects make the sidewalk dangerous to people who are blind or have low vision. To eliminate hazards, a restaurant might need to contact their local government to trim trees along the sidewalks that are now within or part of an outdoor dining or retail space.
For local governments, complying with the ADA could also mean making sure during the permit process as well as on an everyday basis that streateries or outdoor retail do not block curb ramps, sidewalks or accessible street parking so that persons with disabilities may continue to use them.
Examples include the following:
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On Friday Dec. 17, 2021 the 6th Circuit Federal Court of Appeals reinstated the Occupational Safety and Health Administration’s (OSHA) federal emergency temporary standard (ETS) for COVID-19. The 6th Circuit court decision reverses the stay ordered in November by the 5th Circuit and allows OSHA to resume ETS implementation and enforcement nationwide.
The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. ETS opponents have already filed an appeal with the U.S. Supreme Court challenging the 6th Circuit’s decision.
OSHA Response and Guidance
OSHA has published the following guidance regarding the reinstatement:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
Impact on Employers
The 6th Circuit’s decision suggests that the ETS may survive its legal challenges. Employers subject to the ETS should monitor legal developments closely. They should also consider what measures they would need to adopt to be considered to have made reasonable, good faith efforts to comply if the Supreme Court upholds the ETS.
Click here to download the legal update.
Please note: The requirement applies to businesses with 100 or more employees. These requirements may be delayed in Florida as legislative leaders and the State attorney general have vowed to challenge the rule and sue in an effort to block the initiative.
On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.
The ETS requires employers to:
• Develop, implement and enforce a mandatory COVID-19 vaccination policy;
• Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.
Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status.
Weekly Testing Requirements
Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.
Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met.
Click here to download the Legal Update
On Oct. 4, 2021, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) issued FAQs addressing rules regarding premium incentives for COVID-19 vaccinations and rapid coverage of preventive services for COVID-19.
Premium Incentives for COVID-19 Vaccinations
The FAQs clarify that a group health plan (or health insurance issuer offering coverage in connection with a group health plan) may offer participants a premium discount for receiving a COVID-19 vaccination. However, plans generally may not condition eligibility for benefits or coverage on vaccination status, and any discount must comply with the final wellness program rules.
Under these rules, a premium discount that requires an individual to obtain a COVID-19 vaccination would be considered an activity-only wellness program, which is a type of health-contingent wellness program. These programs must comply with the regulations’ five nondiscrimination criteria, including an incentive limit and a requirement to offer a reasonable alternative standard in some cases.
The maximum permissible reward (or penalty) under a health-contingent wellness program that is part of a group health plan (and is not related to tobacco use) is 30% of the cost of coverage.
Rapid Coverage of Preventive Services for COVID-19
According to the FAQs, effective Jan. 5, 2021, plans and issuers must cover, without cost sharing, any COVID-19 vaccines and their administration immediately once the particular vaccine becomes authorized under an emergency use authorization (EUA) or approved under a biologics license application (BLA). This coverage must be provided consistent with the scope of the EUA or BLA, including any amendment, such as to allow for an additional dose to certain individuals, booster doses or the expansion of the age demographic for whom the vaccine is authorized or approved.