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Coronavirus (COVID-19) Resource Center: Protecting Employers and their Workforce:

The Kaminsky & Associates Coronavirus (COVID-19) Resource Center is a collection of news and resources assisting our partner clients in their efforts to proactively address the COVID-19 pandemic. COVID-19 is an international, national and state public health emergency transmitted mainly from person to person through respiratory droplets produced when an infected person coughs or sneezes. In full preparation, our team will continue dedicating our best in class resources and tools to help our partner clients, their businesses and employees stay on the forefront of this global pandemic.

We will continue to closely monitor the spread of COVID-19 and will remain following guidance from appropriate government health organizations. Our firm has instituted restrictions on domestic and international business travel as well as any regularly scheduled in person meeting and events. Additionally, we have approved and implemented formalities exercising mandatory Work-From-Home guidelines for our colleagues and staff.

We fully recognize no contingency action strategy can sufficiently eliminate the disruption of temporary service interruption. During this time, our teams key focus is to safely continue advising, educating, communicating, and supporting our partner clients with superior service.

Please continue to refer back to the COVID-19 Resource Center for reliable updates.

Compliance Alerts:

FFCRA Required Notice: Employee Rights – DOL

What Employers Need to Know about COVID-19 – Webinar Recording

Families First Coronavirus Response Act

Navigating the Emergency Family and Medical Leave Expansion Act and Emergency Paid Leave Act

Health Plan Options for COVID-19 Business Disruption FAQ

Centers for Disease Control and Prevention (CDC) Materials:

In response to the COVID-19 outbreak, the U.S. Centers for Disease Control and Prevention (CDC) has issued:

The CDC has also created the following posters for download:

Department of Labor (DOL) Materials:

The U.S. Department of Labor (DOL) has created a resource page for workers and employers. The DOL’s Wage and Hour Division has a web page that explains how the Family and Medical Leave Act applies in cases of COVID-19 and other public health emergencies, and another web page that explains how the Fair Labor Standards Act applies in the same circumstances. Fact Sheet #70 provides answers to frequently asked questions regarding furloughs and other reductions in pay or hours worked.

Equal Employment Opportunity Commission (EEOC) Materials:

The U.S. Equal Employment Opportunity Commission (EEOC) has created a landing page entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which provides links to resources and guidance.

Health and Human Services (HHS) Materials:

In response to COVID-19, the Office of Civil Rights for the U.S. Department of Health and Human Services (HHS) issued a bulletin regarding HIPAA Privacy and COVID-19.

Occupational Safety and Health Administration (OSHA) Materials:

The U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers that addresses the disease and provides guidance and other resources for preventing exposure to and infection with the virus.

Topics covered include:

OSHA has also issued the publication Guidance on Preparing Workplaces for COVID-19.

Small Business Administration Materials:

The U.S. Small Business Administration has issued guidance entitled SBA Disaster Assistance in Response to the Coronavirus, explaining how the SBA is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the coronavirus (COVID-19). Also see Coronavirus (COVID-19): Small Business Guidance & Loan Resources.

Additional Kaminsky & Associates COVID-19 Employer Materials:

Frequently Asked Questions

For most medical carriers the COVID-19 diagnostic test, the office visit, and telehealth services are now available at no cost to members.  We recommend visiting your carriers dedicated COVID 19 resource page to see how your carrier is specifically handling this unprecedented event.

Cigna Coronavirus Resource Center

Humana Coronavirus Resource Center

UHC Coronavirus Resource Center

Anthem Coronavirus Resource Center

The IRS released Notice 2020-15 to facilitate proactive COVID-19 testing for those individuals participating in a CDHP Health Savings Account plan. This is important to note so that individuals enrolled in such plans DO NOT have to meet their annual deductible for the plan to cover such expenses as testing and vaccinations (assuming one is created for the virus) related to the virus. This will hopefully encourage individuals who feel they may have symptoms of the virus to be treated early without the fear of incurring additional out-of-pocket costs.

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage.

Please contact your TBC account team for confirmation as to how your self-insured plan will handle such claims.

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

Coronavirus will currently be covered like any other illness and follow your plan document for office visits and hospitalizations.  This is subject to change especially with government intervention as a possibility.

Employers under a self-insured health plan should check with their providers to determine how they are addressing cost-sharing related to COVID-19 screening. These employers should also determine what actions must be taken to elect in or out of the 2019 Novel Coronavirus testing cost-sharing programs.  Under a self-insured platform there is more flexibility with how such expenses will be handled.

Please contact your TBC account team for confirmation as to how your self-insured plan will handle such claims.

The IRS released Notice 2020-15 to facilitate proactive COVID-19 testing for those individuals participating in a CDHP Health Savings Account plan. This is important to note so that individuals enrolled in such plans DO NOT have to meet their annual deductible for the plan to cover such expenses as testing and vaccinations (assuming one is created for the virus) related to the virus. This will hopefully encourage individuals who feel they may have symptoms of the virus to be treated early without the fear of incurring additional out-of-pocket costs.

Not necessarily. You need to check your group health plan document (or certificate of coverage if your plan is fully insured) to determine how long employees who are not actively working may remain covered by your group health plan. Once this period expires, active employee coverage must be terminated (unless the insurance carrier or self-funded plan sponsor otherwise agrees to temporarily waive applicable eligibility provisions), and a COBRA notice must be sent. If your plan is self-funded and you would like to waive applicable plan eligibility provisions, you should first make sure that any stop-loss coverage insurance carriers agree to cover claims relating to participants who would otherwise be ineligible for coverage. Please contact your Account Executive for help working through these specific issues.

In the normal course of events, group health plan coverage will cease when an employee’s share of premiums is not timely paid. However, several actions might be taken that could allow coverage to continue.

First, the insurance carrier providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and until an employer reopens its doors. More likely, the employer may make an arrangement with the insurance carrier providing health coverage to pay the employees’ share of premiums to keep coverage in place (at least temporarily) and possibly until the employer can reopen its doors. Each situation will be different, depending upon the insurance carrier and the relationship between the employer and the insurance carrier. Therefore, each factual situation will need to be individually assessed.

The Society of Actuaries created the attached brief outlining the impact of COVID-19.

Generally, carriers do not consider quarantined workers to be disabled unless they have a medical condition that results in restrictions and limitations that satisfy a policy’s definition of disability.

Coronavirus would be treated no differently than any other covered illness under most STD and LTD plans. If a person is diagnosed with coronavirus, a claim for STD or LTD benefits could be payable after the elimination period if the definition of disability has been met, i.e. if they are unable to work because of the coronavirus infection. If, after diagnosis, they remain able to perform work duties (even if quarantined and working from home) the employee would generally not be considered Partially or Totally Disabled. Additionally, individuals who are self-quarantined without a diagnosis and not sick would not have a payable claim situation.

Under federal and state statutory leave laws, an FML administrator can generally approve a claim when a claimant meets the definition of Serious Health Condition under the applicable federal/state statute. Under these statutory programs, there is an expectation that benefits will be administered on a consistent basis no matter the underlying illness. As with disability claims, each leave is decided on its own specific facts. In general, however, employees are not entitled to federal or state leave to stay home during a quarantine period if they are not ill. It is important to monitor legislation adopted after February 2020 for up to date information.

A Long-Term Care claim filed by individual diagnosed with coronavirus would likely be payable if they meet the policy definition and they are receiving covered services.  If a claimant is quarantined and not receiving covered services, no benefits would likely be payable.

At TBC, we know there are several questions that come up regarding disability and the Department of Labor Americans with Disabilities Act (ADA).  We have seen questions come up regarding personal travel (Spring Break) and how it may or may not impact disability related issues specific to the virus.  For legal guidance, we recommend that you reach out to your counsel to appropriately establish guidelines and communication.  To aid in those conversations with your legal team, you may find the following comments from the Law and Workplace attorneys at Proskauer Law firm a helpful tool.

According to Proskauer law firm, “while employers may implement restrictions on work-related travel to affected areas, employers should tread more carefully when attempting to police personal, non-work-related travel. “

“… it is worth noting that the EEOC has argued on at least one occasion that an employer acting on a potential future health condition may be viewed as “regarding” an employee as disabled as long as the condition otherwise qualifies as a disability under the law.  For this reason, employers should consider the risks (as well as the practicalities) relating to imposing a ban on personal, non-work-related travel to affected areas.  However, as discussed further below, employers may require employees engaging in travel to these areas to remain out of the workplace for at least 14 days upon their return.”

“the ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.”

https://www.lawandtheworkplace.com/2020/01/coronavirus-and-the-workplace-what-employers-need-to-know/

Not necessarily. If COVID-19 does not satisfy the regulatory definition of a “serious health condition,” employers should not count the absence against the employee’s 12 weeks of FMLA leave. An example of a situation in which the leave may not be FMLA-qualifying is when an employee is required by the employer to stay home but is asymptomatic. Employers should evaluate any applicable state mini-FMLAs to ensure they do not contain different or additional requirements or provisions.

The regulatory definition sections that most likely apply in the COVID-19 context (assuming a mild case) are the following:

  • More than three calendar (not work) days of incapacity plus two treatments by a healthcare provider (the first of which must occur within seven days of the first day of incapacity and the second within 30 days of the first day of incapacity)
  • More than three calendar (not work) days of incapacity plus one treatment by a healthcare provider (which must occur within seven days of the first incapacity) plus continuing treatment (including prescription medication) under the supervision of a healthcare provider

Because some individuals will not seek health care treatment unless they need urgent medical attention or they are at a higher risk for complications from COVID-19, some cases of COVID-19 will not qualify as a serious health condition simply because the employees will not have visited a doctor/healthcare provider for any treatment.

If your company does not currently have a Work From Home (WFH) policy it can be a daunting task to establish at “the last minute”.  We think the attached sample policies may be of help while you plan to implement such a policy.   One is more of a temporary implementation and the other one long-term.

Sample Telecommuting Policy

Sample Remote Work Policy

Summary:

  • The provisions of the FFCRA apply only to employers with fewer than 500 employees
  • There are waivers available for employers with fewer than 50 employees if having to pay these benefits “would jeopardize the viability of the business”
  • The bill provides a tax credit to help business cover these additional costs.
    • The credit applies to to the tax the company would normally pay for each employee’s SS.
    • If sick leave or FML ends up costing more than the SS bill, the government will cover the remaining cost
  • Sick leave is to be paid at 100%, subject to a cap of $511 per day
  • FML is to be paid at 100%, subject to a cap of $200 per day

Full article from our trusted partner, Ogletree Deakins: The Emergency Coronavirus Bill: What Employers Need to Know Regarding the Legislative Response to COVID-19

The U.S. House recently passed the “Families First Coronavirus Response Act (“FFCRA”)”.  This Act aims to give paid leave to workers who did not have it and extend paid leave for others, in addition to other changes to the Family Medical Leave Act (“FMLA”).  The bill is now in the hands of the Senate and negotiations are ongoing which will shape the final provisions of the Act.  The final bill is expected to make its way through the Senate and on to President Trump’s desk in the coming days.

If the law passes close to its current form, it will have a significant impact on businesses at a time when businesses in many industries are already concerned about cash flow.

The Benefit Company, along with our counsel, is monitoring the status of this legislation, and will provide additional updates and analysis as available.

As of February 27th, only one drug shortage due to COVID-19 has been reported by the FDA. The agency did not identify the particular drug but stated that alternatives were available. The FDA has asked over 180 drug manufacturers to evaluate their entire supply chain. With increased attention to the potential for shortages, employers should be aware of the risk and consider strategies to ensure their members’ well-being. Members are also encouraged to discuss therapeutic alternatives with their physician should disruption to the supply chain occur.

Employers should evaluate the all the potential barriers in place that may restrict pharmacists and patients from filling prescriptions. Depending on the capability of their PBM, employers can implement these strategies: make edits to their plan’s “refill too soon” utilization percentage, permit emergency refills, allow maximum extended day supply at the time of the refill, and/or waive processing restrictions for out-of-network pharmacies.

We have recieved mixed responses to this question. We have been told $52 with LabCorp and $95 with Quest Diagnostics. UHC/UMR gave us a range of $50-$250. As we find more information we will post it here.

  • HOW – Call your doctor of local health department if you are symptomatic to discuss whether you should be evaluated in person and considered for testing.
  • Your health care provider will consult with the Georgia Department of Public health to determine if you need to be tested.
  • WHERE – To be prioritized for testing at the Georgia Public Health Laboratory, patients must meet the state’s criteria, which evaluates a combination of symptoms and risk factors.
  • WHERE – Patients who don’t meet priority requirements can consider testing at commercial labs.
  • WHERE – As of 3/16 several commercial testing sites such as LifeHope Labs have a consumer test kit for COVID19…however, these labs are asking that you first contact a physician to discuss your symptoms before placing an order.  Once you have been designated as a candidate to receive a test kit, your physician will provide you with a code that you can use to order and pay for the test kit (approx. $250).
  • For more information, visit the Georgia Department of Public’s Health’s website https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html

Originally, the test was taking 3 to 4 days to get returned, but that was due to low lab capacity. Most recent my, it is common to get the test results back in 24 to 48 hours.

According to the EEOC Guidance, whether the Coronavirus will rise to the level of a “direct threat” under the ADA will depend on it if reaches pandemic levels versus current epidemic levels and the severity of the illness/risk. Employers who are considering temperature scans or other medical inquiries should consult with labor and employment counsel to ensure that the medical inquiry is permitted under the ADA.

You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

Take the same precautions as noted above. Treat the situation as if the suspected case is a confirmed case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know that the employee has not tested positive for the virus but has been exhibiting symptoms that lead you to believe a positive diagnosis is possible.

In addition to your accessing your personal health provider, and even mental health resources through some telemedicine the CDC put out the following link with helpful hints.

https://www.cdc.gov/coronavirus/2019-ncov/about/coping.html

According to attorney Davis, Wright and Tremaine, LLP – Any travel policies should be narrowly focused and apply only with regard to specific geographic areas identified by the CDC and WHO as high-risk. In addition, travel policies should be in writing and distributed to all employees, not just to employees who the employer believes is or may be considering travel to high-risk areas.  By so doing, the employer can avoid the appearance of discrimination and limit potential race, national origin, or other discrimination claims, while helping to protect the health and well-being of employees.

The ADA prohibits discrimination in the workplace against employees and applicants with disabilities and requires employers to provide reasonable accommodations when necessary. The ADA also limits the type of medically related inquiries that an employer can ask of an applicant or employee, and imposes strict confidentiality requirements relating to any medical information that is obtained. A medical inquiry or examination during employment is permissible only if it is job-related and consistent with business necessity. If an employer has a reasonable belief based on objective evidence that an employee will pose a direct threat to other employees due to a medical condition, then medical inquiries concerning that condition will be job-related and consistent with business necessity. According to the Equal Employment Opportunity Commission (EEOC), taking an employee’s temperature to determine if he or she has a fever is an example of a medical inquiry.

While we are not accountants and recommend you receive guidance from your tax advisors, we understand individual taxpayers can defer up to $1M in tax payments for 90 days beyond April 15th, and C-Corporation taxpayers can defer up to $10M in tax payments. Many States are apparently following suit for state income tax. It is important to note the April 15th tax filing deadline had not been extended as of the writing of this Q&A.

We are seeing a significant uptick in cybercriminals attempting to to leverage the increased work from home environment and to exploit fears about the growing pandemic.
Examples include:
  • Request to handle invoices, ACH, and wire transition differently (suggestion: request a video conference to verify)
  • Fake Websites asking for Usernames and Passwords
  • Requests for donations to fraudulent charities
  • Spear Phishing, requesting the recipients to download documents or click on links that appear to come from health authorities, internal team members, technology providers, and financial institutions.
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