Benefit News, Tools and Compliance - Handling Requests for Vax Exemptions, Challenges to OSHA Mandate and New CA Laws

Tools, Templates and a Webinar McGriff Presents … ThinkHR (now Mineral)! October 19, 2021 | 2:00 – 3:00 pm EDT To register, please click here (Existing McGriff Clients Only) ThinkHR has changed its name to Mineral … but the valuable resources offered haven’t changed (and will even be enhanced in the coming months!). Please join us for a brief overview of ThinkHR/Mineral and its benefits available to McGriff’s Employee Benefits clients. People risk is inevitable for an organization, and reducing it is no small feat given the array of potential risks, ever-changing legislation, and the need for high-impact expertise in the moment. We are excited to bring you ThinkHR/Mineral – a robust resource that provides an end-to-end People Risk Management solution, including live HR advisors; a reliable library of sample forms, policies, and white papers; and interactive technology solutions, such as a living handbook builder and an online learning management system with 300+ training courses! If you are involved in HR compliance or employee issues at any level, this will be another valuable benefit from your trusted McGriff team that can save you time and money. McGriff Resource Net User Guide - (Existing Clients Only) We are excited to provide access to a personalized McGriff Resource Net. This online site acts as a one-stop source for all your Safety, Compliance, HR, Wellness, and other business needs. At McGriff, we continually look for innovative products and value-added services to ensure customer satisfaction. We designed the McGriff Resource Net with our clients in mind, incorporating a vast resource library with user-friendly online tools to streamline your daily work tasks. Get to know your McGriff Resource Net and how its resources can make your day easier. If you have any questions—at any time—feel free to contact your McGriff representative. Employer Flowchart: Assessing Requests for Religious Exemptions from Vaccine Mandates - "For the past 18 months, employers have faced a dizzying number of new laws, regulations and employment issues resulting from the COVID-19 pandemic. The latest announcement of COVID-19 vaccine mandates by the White House on September 9, 2021, resulted in an increase in the number of requests received by employers for religious exemptions from vaccine mandates. Employers continue to receive requests and must assess and decide whether to grant or deny the request for a religious exemption. The religious exemption analysis can prove to be challenging.... To assist employers in the decision-making process, the Husch Blackwell Labor & Employment practice group has developed a flowchart to simplify the religious exemption analysis and enable employers to make better decisions in less time." Compliance Updates What Legal Challenges Will Await the OSHA Vaccine Emergency Temporary Standard (ETS)? - "OSHA faces an uphill battle in meeting the justifications of using the ETS statutes. Here are the seven most likely arguments we expect to be launched and the counterarguments we expect OSHA to use as a shield:" Low Death Rate of COVID-19 High Numbers of Non-Serious COVID-19 Cases Limited Time Impact if ETS Implemented Timing of ETS General Applicability Arbitrary Size Determination Cost-Benefit Analysis Handling Requests for Religious Exemptions from Mandatory Vaccination Policies - "EEOC guidance from 2008 recognizes certain factors that, when viewed alone or together, may undermine an employee’s claim of a sincerely held religious belief. These include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. Employers should also note that, today, many “pre-fab” form objections based on allegedly sincerely held religious beliefs are available for sale on the internet from a variety of websites and “pastors.” For that reason, employers dealing with exemption requests based on religion may want to start their analysis by having an employee submit a written statement in their own words explaining their sincerely held religious belief supporting their objection to vaccination....where an employee has articulated a sincerely held religious belief, in most instances, it is best to assume its sincerity and move to the next step, engaging in the interactive process." Clarifying Guidance on COBRA Deadline Extension Relief - IRS Notice 2021-58 clarifies the application of certain COBRA deadline extensions for electing COBRA coverage and paying COBRA premiums under prior relief that was issued as a result of the COVID-19 outbreak (“Emergency Relief”). Under the Emergency Relief, up to one year must be disregarded in determining the due dates for individuals to elect COBRA coverage and pay COBRA premiums during the Outbreak Period (i.e., 60 days after the announced end of the National Emergency).  Joe Biden’s Vaccine Mandate Doesn’t Exist. It’s Just A Press Release - "Yes, we’ve heard all about Joe Biden’s alleged vaccine mandate for private companies employing 100 or more people. It was all over the news even before he announced it on September 9. His announcement has jeopardized the employment of millions of Americans and increased worker shortages in critical domains such as health care. There’s only one problem. It’s all a mirage. Biden’s so-called vaccine mandate doesn’t exist — at least, not yet. So far, all we have is his press conference and other such made-for-media huff-puffing. No such rule even claiming to be legally binding has been issued yet." California Passes Legislation Requiring Continued Health Benefits for Striking Public Employees - "Governor Newsom signed Assembly Bill 237 (AB 237), which prohibits California public employers from discontinuing employer contributions for health care or other medical coverage for employees who, during the duration of an authorized strike, fall below the minimum hours worked to qualify for employee health care coverage." Gov. Gavin Newsom has signed 770 new California laws and vetoed 66 - "Signed bills into law: (1) Making ethnic studies a high school graduation requirement, as CalMatters’ Joe Hong reports. Under a bill Newsom signed last year, California State University students must also take an ethnic studies course to graduate. (2) Mandating mental health instruction in middle and high schools that have an existing health education course. (3) Requiring public colleges, universities, and secondary schools to provide free menstrual products on campus. (4)Requiring large department stores to maintain a gender-neutral section of toys and child care items...." EEOC Files First COVID-19 ADA Accommodation Lawsuit - "On September 7, 2021, the Equal Employment Opportunity Commission ('EEOC') filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the 'ADA'). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation." California Will Allow Electronic Distribution of Workplace Notices - California amended its Labor Code to allow employers to distribute certain workplace notices and posters electronically in addition to displaying the postings required by law. The amendment becomes effective on Jan. 1, 2022. Benefit News Do You Really Need to Save That Much for Retirement? - Financial investment and retirement "guidelines can be appealing because of their simplicity but also daunting for investors who may find themselves running far behind. On a more skeptical note, it’s also worth noting that asset-management firms (and most financial advisors) have a vested interest in getting investors to save more because higher balances translate into higher fees. In this article, I’ll run through some numbers to test whether these guidelines are reasonable and dig into the assumptions behind them. I’ll also explain why they might not be an accurate benchmark for every investor...." Employer Medical Benefit Costs Continue to Triple the Rate of Inflation Globally in 2022, Survey Forecasts - "The costs of employer medical benefits across the world are forecasted to rise 7.4 percent in 2022, outpacing general inflation by 5 percent, according to the 2022 Global Medical Trend Rates Report released today...." Governor Newsom's Cozy Relationship with Big Insurance - "The coziness of the industry’s relationship with Newsom burst into public view in late 2020 when he was photographed dining at the ritzy French Laundry restaurant with Dustin Corcoran and Janus Norman, the CEO and top lobbyist, respectively, of the state doctors’ lobby, the California Medical Association. 'There is no possible way we could have come out of this covid crisis where the health care industry was given so much power without influence coming along with that,' said Carmen Balber, executive director of the advocacy group Consumer Watchdog.... Doctors and Blue Shield have given Newsom millions of dollars to support his political career over many years, including a $20 million donation in September 2020 from Blue Shield for his homelessness initiatives. The recall effort earlier this year only solidified Newsom’s relationship with health care executives. Industry groups wrote checks to the California Democratic Party, which fought to keep Newsom in office. It received $1 million each from Blue Shield and the hospital lobby and $875,000 from the doctors’ lobby, according to state campaign finance records."

Big Government's Love Affair with Big Insurance - Even in Calunicornia

From Angela Hart and Samantha Young writing at Kaiser Health News: 

The coziness of the industry’s relationship with Newsom burst into public view in late 2020 when he was photographed dining at the ritzy French Laundry restaurant with Dustin Corcoran and Janus Norman, the CEO and top lobbyist, respectively, of the state doctors’ lobby, the California Medical Association.

“There is no possible way we could have come out of this covid crisis where the health care industry was given so much power without influence coming along with that,” said Carmen Balber, executive director of the advocacy group Consumer Watchdog.

Newsom did not respond to questions about the industry’s influence, but spokesperson Alex Stack said his proposal to regulate health care spending “is a priority for this administration, and we look forward to continuing to work on this issue to get it done.”

Doctors and Blue Shield have given Newsom millions of dollars to support his political career over many years, including a $20 million donation in September 2020 from Blue Shield for his homelessness initiatives.

The recall effort earlier this year only solidified Newsom’s relationship with health care executives. Industry groups wrote checks to the California Democratic Party, which fought to keep Newsom in office. It received $1 million each from Blue Shield and the hospital lobby and $875,000 from the doctors’ lobby, according to state campaign finance records.

 

Long COVID as a Disability

In September, the EEOC announced that it recognizes that long COVID may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agreed with the analysis of “long COVID” by the Department of Health and Human Services (HHS) and Department of Justice (DOJ) in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” The EEOC will release technical assistance about COVID-19 and ADA “disability” in the employment context in the coming weeks. On August 2, 2021, the White House, HHS, Department of Education, and Department of Labor also hosted "A Conversation about Long COVID," reviewing and providing support to the HHS and DOJ guidance.

Brief Summary of HHS and DOJ Guidance

According to the guidance, long COVID is a disability under the:

• ADA (Titles II and III at 42 U.S.C. §§ 12101-12103, and 12131-12189);
• Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and
• Section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. § 18116).

Note: Read more on the Office of Disability Employment Policy’s JAN website about long COVID and the ADA.

A Person with a Disability

A person with a disability is someone:

• With a physical or mental impairment that substantially limits one or more of their major life activities; or
• With a record of such an impairment; or
• Who is regarded as having such an impairment.

What is an Impairment

A person with long COVID has a disability if their condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

• Lung damage
• Heart damage, including inflammation of the heart muscle
• Kidney damage
• Neurological damage
• Damage to the circulatory system resulting in poor blood flow
• Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

What is a Major Life Activity

Long COVID can substantially limit one or more major life activities, which include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. It also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

What Substantially Limits

To “substantially limit” is construed broadly under these laws and shouldn’t require extensive analysis. The impairment doesn’t need to prevent or significantly restrict an individual from performing a major life activity, and the limitations don’t need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

Long COVID can substantially limit a major life activity and when someone with long COVID might be substantially limited in a major life activity are varied, for instance:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

However, long COVID isn’t always a disability. It requires an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.

Protections

People whose long COVID qualifies as a disability are entitled to the same rights and protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557 (full and equal opportunities to participate in and enjoy all aspects of civic and commercial life).

Vax Mandate Legality - 24 States States Line-Up for the Challenge

Recently, 24 state attorneys general submitted a letter (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming) strongly opposing President Joe Biden’s proposed COVID-19 vaccine mandate on large, private employers.  These states threaten legal action should the mandate’s efforts move forward.  Last month, Biden announced the upcoming mandate requiring employers with 100 or more employees (measured companywide, not by location) to enforce one of the following:

• Require employees to get vaccinated against COVID-19
• Require unvaccinated employees to produce evidence of a negative COVID-19 test each week

The 24 states who signed the letter made the following key allegations against the mandate, among others:

• It will affect the job market and the ability to fill positions.
• It will increase vaccine skepticism.
• It is too broad, not accounting for nuanced employee situations.
• It is outside of OSHA and federal executive authority to issue such a mandate. 

The 24 states that signed the letter largely targeted the emergency temporary standard (ETS) as the crux of their argument. The letter’s authors attest that the Occupational Safety and Health Administration’s (OSHA) ETS rules are very specific, and applying them to a vaccine mandate is an illegal overreach.  As the CATO Institute points out, "Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS)." 

Walter Olson, writing at CATO, further explains: 

A word is in order about the two ways OSHA adopts rules. The standard, accepted way is to put them through the process known as “notice and comment,” building a record that it is hoped will result in more rational standards and, whether or not it does that, prepares the way for judicial review by, for example, putting the agency on the record against major objections as to its rationale for the rule.

The emergency process bypasses these protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification. But that comes afterward. In the meantime it can use the excuse of emergency to regulate first and explain later.

To use the emergency decree power, according to the agency’s website, “OSHA must determine that workers are in grave danger” and that an emergency standard “is needed to protect them.” That is a vague and open‐​ended standard, but even so it opens up one set of possible challenges. Is a test‐​or‐​vax mandate that applies even to employees who work from home, or who have already contracted the virus and recovered, truly needed to protect other workers from “grave danger”?

Even when OSHA makes rules through its conventional process, there are real constitutional questions about the limits of its authority. In 2008, Harvard University law professor Cass Sunstein, who went on to serve as former President Barack Obama’s regulatory chief, published an article entitled “Is OSHA Unconstitutional?” He addresses the problem of “nondelegation” arising from Congress’ having seemed to bestow on the agency such wide powers, akin to those of a legislature, with so few checks.

Is it Legal?

Obviously, this is a rather large step taken at a federal regulatory level. I expect numerous legal challenges and would not be surprised if this action was delayed, perhaps even significantly so, while the court system decides if OHSA has the authority to require large employers to mandate vaccines for employees.  The fact that the President directed OSHA to make this applicable only to employers with more than 100 employees signifies that the Biden Administration believes U.S. Constitution's Commerce Clause provides the lawful basis for the regulation.

The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power to regulate commerce with foreign nations, and among the several states. 

"The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

The idea is that employers with more than 100 employees are almost certainly going to be engaged in interstate commerce or commerce across a state line. That, in and of itself, is a bold assumption. While it may be the case in most cases, it certainly is not a hard and fast rule.

In addressing PPACA's Individual Mandate in 2012, the Supreme Court held that the individual mandate could not be enacted under the Commerce Clause. The Court stated that requiring the purchase of health insurance under the AFA was not the regulation of commercial activity so much as inactivity and was, accordingly, impermissible under the Commerce Clause. The question in evaluating this new regulation will be - is the requirement that an employer with 100 or more employees compel employee vaccinations a regulation that necessarily governs interstate commerce?

Here is a sampling of legal thought on the topic:

• Mark Barnes, a former associate health commissioner of New York who teaches health law at Yale Law School, said he expects the new vaccine policy to be challenged based on arguments it is outside the mandate of OSHA, and an impermissible stretch of the U.S. Constitution’s interstate commerce clause. He said opinions of U.S. Supreme Court Justices Clarence Thomas, Amy Coney Barrett, and Neil Gorsuch could encourage a lower court to issue an injunction delaying implementation of the policy. “They are very hostile to the commerce power, and extensive use of the interstate commerce power by the federal government,” Barnes said. “I think there would be a challenge to that, a real challenge.”

• Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute: "In short, don’t be surprised when the new Biden vaccine mandate ends up in court. Should it reach the Supreme Court, it will be amid fresh memories of the eviction moratorium debacle, in which a majority of justices clearly signaled that it would be unconstitutional for the Biden administration to renew the expiring Centers for Disease Control and Prevention decree, and the White House went ahead and did so anyway. Slapping that down took less than a month."

• CNN legal analyst Jeffrey Toobin said that it’s unclear if President Joe Biden’s upcoming speech on Thursday that will include announcing a vaccination or testing mandate for employers with more than 100 employees will withstand a court challenge. ... “There is the question, though, of whether the federal government has the legal authority to do this. OSHA [Occupational Safety and Health Administration] supervises employee safety,” he continued. “Whether that authority extends to requiring vaccines for people in companies bigger than 100 employees, you can be sure this is going to be challenged in court. I don’t know the answer to that, but I do know that this is certainly a shot across the bow by the justice department and by the White House, saying, ‘Look, we are sick of asking. We are now telling you to get [vaccinated].”

• John Yoo, Emanuel S. Heller Professor of Law at the University of California, Berkeley, and a visiting fellow at the Hoover Institution: "OSHA has been charged with promulgating the ETS through a 'fast track' procedure provided under the OSH Act. The agency has used this procedure only sparingly in the past, and on those occasions its efforts have not stood up well in court. Before COVID, OSHA had issued only nine Emergency Temporary Standards, of which six were challenged. Of these six, the courts overturned four and partially vacated a fifth. In a successful 1984 challenge to an asbestos ETS, a reviewing court found that OSHA was not justified in taking 'resort to the most dramatic weapon in [its] enforcement arsenal.'"

• See also, Biden’s Vaccine Mandate Depends on OSHA Emergency Regulation. Here’s How That’s Fared in Court.

2021 Consolidated Appropriations Act: No Surprises Act-Key Health Plan Provisions

The Consolidated Appropriations Act (CAA), signed into law on December 27th, 2020, includes many provisions affecting employers, group health plan sponsors, and health insurance issuers. The CAA contains guidance that focuses on health plan transparency requirements and contains the No Surprises Act, which is aimed at protecting health plan participants from surprise medical bills, which can occur when patients unexpectedly receive care from out-of-network (OON) providers. 

To help clarify the CAA’s compliance initiatives, we have created the below summary and chart which breaks down each No Surprises Act requirement and CAA transparency provisions. The chart provides an effective date for each requirement and lists questions plan sponsors should be asking of their insurance carrier or TPA to help ensure compliance with the CAA.