We are seeing an unprecedented situation that is constantly evolving and want to keep you updated.
To further keep you up to date, we are sponsoring a webinar on Monday, March 23rd to discuss HR 6021 and other coronavirus related employment concerns. Our first session is already at maximum capacity, so we have setup a second session. Click here to sign up.
EEOC Allows Employers to take Employee’s Temperatures
We have received many questions from employers on steps they may take to keep employees safe and maintain business continuity during the coronavirus pandemic. One common question is whether an employer could screen employees for potential infection and prohibit those employees from working. Our general advice has been that any such screening would likely be considered a medical exam under the Americans with Disabilities Act (ADA) and raise a number of compliance concerns. The ADA restricts when and how employers may conduct medical exams and what actions they can take based on those exams. In general, the medical exam must be non-discriminatory and based on business necessity.
On March 18th, the Equal Employment Opportunity Commission (EEOC) announced that because the Centers for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. Furthermore, there is no single “normal body temperature,” but rather a range. An employer instituting such a regime would need to understand the correct body temperature at which to exclude employees, which will in part depend on the testing device they use. ADA confidentiality rules also apply, so any employer who institutes screening must be cautious how the screening is administered and how employee privacy is protected.
The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
Benefit Continuation in a Pandemic
Over the past week we have received numerous questions from employers who expect to have workers out for an extended period of time due to the pandemic. Employers are understandably concerned about how these absences will impact benefit eligibility.
Employee benefit plans always have eligibility rules. These rules often specify the minimum number of hours an employee must work to be considered “full time” (commonly 30), how this is determined (average, snapshot, etc.), as well as when coverage will end in the event that an employee no longer meets those requirements. These rules are often forced on employers by the insurance companies. In some cases, larger employers may be able to customize eligibility, but more often than not, an employer is just stuck with the insurance company’s standard provisions.
The coronavirus pandemic has placed many employers in the position where they must rapidly reduce labor costs in the face of declining revenue. In the past week alone, we’ve worked with dozens of employers that are in this exact situation. Other employers need to retain employees, but with “shelter in place” orders and school closures, employees may not be able to work.
It’s in this context that so many companies are asking – “what about the benefits?” As is often the case, there’s no single simple answer. It will depend on the specific facts and circumstances, however, following are some common situations.
Furlough or Layoff
Under most insurance contracts, a reduction in hours may cause a loss of coverage. If hours are reduced to zero, most contracts will terminate coverage at the end of the month in which the reduction took place. At this point, an employee could elect COBRA or state continuation for health insurance. Other benefits such as life or disability insurance may be convertible. Don’t forget those notices!
Reduction of Hours
Even if an employee isn’t furloughed, a reduction in hours may cause a loss of coverage depending on the amount of the reduction. An employee reducing from 40 hours to 32, wouldn’t lose eligibility under most plans, but a reduction to 24 hours may trigger a loss of coverage. Employees of an Applicable Larger Employer (ALE) under the Affordable Care Act will not typically lose coverage immediately. If the employee satisfied an initial or standard measurement period and is in a stability period, they remain eligible for the full stability period unless hours are reduced to zero. If the employee has always been deemed “full time,” the employer must utilize a “monthly measurement period” after the change in status to determine if they are in fact no longer eligible. This delay could be helpful in the event of a short-term reduction.
Many insurance contracts are silent when it comes to paid leave, while others expressly allow an employee to remain on the plan, so long as they are receiving full pay during an absence. Short absences are typically not a big concern, but longer absences, especially those that extend past the end of the month should be examined closely. HR 6021, which was just signed into law provides eligible employees with an additional 80 hours of paid sick leave, which, when combined with leave provided under an employer’s policy could present eligibility challenges.
Family and Medical Leave
Both federal and state family and medical leave laws require benefits continuation while an employee is out. More employees than ever may be utilizing FMLA during the coronavirus pandemic due to the expansion of FMLA under HR 6021, which allows for paid family leave to care for children who are home due to a school or daycare closure. This expansion covers most employers with fewer than 500 employees. Health insurance must be continued on the same basis as for active employees while an employee is out on FMLA. Continuation of other benefits will vary.
As employers manage a rapidly evolving and largely unprecedented situation, it is critical that they remain vigilant of their compliance obligations. Even in as pandemic, rules must be followed to avoid costly consequences later.
We are sponsoring a webinar on Monday, March 23rd to discuss HR 6021 and other coronavirus related employment concerns. Our first session is already at maximum capacity, so we have setup a second session. Click here to sign up.
Chris and the HR Pros team.