WCI, Inc
Feb. 8, 2022

Latest COVID-19 Guidance for Employers

Excerpt from the CDC Update

Given what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation for the public. People with COVID-19 should isolate for 5 days and if they are asymptomatic or their symptoms are resolving (without fever for 24 hours), follow that by 5 days of wearing a mask when around others to minimize the risk of infecting people they encounter. The change is motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and the 2-3 days after.

Additionally, CDC is updating the recommended quarantine period for anyone in the general public who is exposed to COVID-19. For people who are unvaccinated or are more than six months out from their second mRNA dose (or more than 2 months after the J&J vaccine) and not yet boosted, CDC now recommends quarantine for 5 days followed by strict mask use for an additional 5 days. Alternatively, if a 5-day quarantine is not feasible, it is imperative that an exposed person wear a well-fitting mask at all times when around others for 10 days after exposure. Individuals who have received their booster shot do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure.  For all those exposed, best practice would also include a test for SARS-CoV-2 at day 5 after exposure. If symptoms occur, individuals should immediately quarantine until a negative test confirms symptoms are not attributable to COVID-19.

See full update here

On December 14, the EEOC once again updated its COVID-19 technical assistance. The question-and-answer (Q&A) series has been updated to add a new Section N, which clarifies the circumstances under which COVID-19 may be considered a disability under the ADA and the Rehabilitation Act. The EEOC has updated its guidance on employment and COVID-19 about 20 times during the ongoing pandemic.

Section N focuses broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Highlights. The EEOC underscored the following key information:

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
  • Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. However, employers can choose to do more than the ADA requires.
  • An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Broad focus. The EEOC noted the Departments of Justice and Health and Human Services on July 26, 2021, issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557, which focused only on long COVID. In contrast, the updates to the EEOC’s Q&A series focus more broadly on COVID-19 in the context of Title I of the ADA and Section 501 of the Rehabilitation Act, which cover employment.

“This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19,” said EEOC Chair Charlotte A. Burrows. “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

What's next for OSHA's Covid ETS?

OSHA has officially withdrawn its Emergency Temporary Standard for Covid vaccination or testing for large employers. Instead, the ETS will serve as a proposed rule for a permanent standard that is likely to apply to more specific workplace risks. Read the Feb 8 article here.

LINKS TO NEWS ABOUT VACCINE MANDATES:

OSHA's statement to withdraw its ETS for large employers

Legal summary of the Supreme Court's stay on OSHA's ETS - Jan 18 article

Supreme Court stays large employer mandate but upholds healthcare mandate - Jan 13 article

Summary of the Supreme Court deliberations. - Jan 7 article

NCDOL statement on the halt of the vaccine or test mandate

On January 13, Labor Commissioner Josh Dobson released the following statement regarding the action by the U.S. Supreme Court to halt the Biden administration’s vaccine mandate:

“Earlier today, the U.S. Supreme Court halted the Biden administration’s attempt to force employers to require COVID-19 vaccines or testing as a condition of employment. In its opinion today, the Court found that the federal government lacked the statutory authority to impose the mandate. Given the strongly worded ruling, I hope that the U.S. Department of Labor will withdraw the rule and finally put an end to this misguided mandate. I commend the Supreme Court for its decision, and I am thankful that the ruling provides North Carolina employers and employees with much-needed reassurance.

"As I’ve said previously, a COVID-19 vaccine mandate represents a serious government overreach and is the wrong approach, especially given the current workforce shortage. I sincerely appreciate the patience and diligence of North Carolina’s workers and business community over these past few months of uncertainty and confusion. Employers have a responsibility to provide a safe and healthy workplace, and my department is committed to working with employers to make sure that happens. The Supreme Court’s decision today means that we can all refocus on strategies that will address the needs of business while at the same time protecting workers.”

Additional Pandemic-Related Articles

Although the fate of the Occupational Safety and Health Administration's (OSHA) rules remains in limbo, many employers are moving ahead with efforts to comply with the OSHA emergency temporary standard (ETS) that requires employers with 100 or more employees to ensure that all are fully vaccinated or subject to COVID-19 testing at least weekly.

Those efforts are raising a range of employee benefits questions and below we answer some of the questions employers often ask.

Question 1. Does a medical plan have to cover all testing for unvaccinated employees enrolled in coverage?

Answer 1. No. The Coronavirus Aid, Relief, and Economic Security (CARES) Act requires medical plans to pay for COVID-19 testing when a medical professional has made an individualized determination that testing is medically appropriate. That determination might be based on an individual's symptoms or potential exposure. However, the CARES Act does not require medical plans to pay for testing that is not based on a clinical determination that testing is appropriate. Specifically, coverage is not required when testing is done for employment-related reasons. Nearly all plans are currently written so that they do not cover testing when it has not been ordered by a medical professional making an individualized determination that testing is medically appropriate. Employers may want to review their medical plan documents to determine what kinds of testing are covered.

Q2. If a plan does not currently cover employment-based testing, may it be amended to do so?

A2. Yes, though not many employers are likely to do this. Covering all COVID-19 testing could significantly raise costs. Insurers would want to raise premiums, and self-insured plans could face higher stop-loss premiums. In addition, changing a medical plan's administration can be a bit tricky. Most plans only cover services that are "medically necessary" as an overall medical management technique. By carving COVID-19 testing out of the "medically necessary" requirement, an employer might be creating a unique coverage framework that an insurer or third-party administrator might not be equipped to handle. Finally, only employees who are already covered by a medical plan can have their testing covered. That means employers may want to consider how noncovered employees will get tested.

Q3. The ETS does not require employers to pay for employment-based testing. Are there factors employers may want to consider if they want unvaccinated employees to pay for their own testing?

A3. Although the ETS itself does not require employers to pay for testing for unvaccinated employees, there could be other laws that make it difficult for employers to pass the cost of testing on to employees. Certain state laws may require employers to pay for testing. Some state laws require employers to pay, generally, for any items that are required as a condition of employment. Other state laws specifically require employers to pay for any required medical tests. Also, union contracts may require employers to pay for testing. Employers may want to review any collective bargaining agreements carefully to determine whether employee-paid testing, or even testing itself, requires reopening the agreement.

Q4. What if an employer decides to pay for employment-based testing outside of the medical plan?

A4. A COVID-19 diagnostic test would most likely be considered medical care under the Employee Retirement Income Security Act (ERISA). So when an employer pays for testing, regardless of the reason, it likely pays for medical care. This creates an ERISA-covered welfare benefit. Recent federal guidance indicates that employers can offer testing through an employee assistance plan (EAP) without the EAP offering "significant" medical care. This is important because EAPs that do not offer "significant" medical care are "excepted benefits," meaning they are not subject to various laws that would otherwise apply to group health plans. For this reason, employers that want to provide free testing may want to consider labeling their programs as standalone EAPs.

Many employers are considering offering free testing at worksites, which may prompt privacy questions related to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Before releasing results to an employer, a testing provider will need a proper authorization from the employee. Alternatively, the testing provider could provide test results directly to the employee, who might then provide the test results to the employer. HIPAA does not apply to employees providing their own medical information. Note that even if HIPAA-level protections do not apply, employees' testing information is still sensitive medical information that employers are required to safeguard appropriately.

Q5. If an employer pays for employment-based testing, are employees subject to a tax on the cost of the testing?

A5. COVID-19 diagnostic testing would most likely be considered medical care under the tax code and could be provided to employees tax-free. This would be true whether the test is ordered by a physician or done for employment purposes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Timothy Stanton and Jessica E. Kuester

Ogletree, Deakins, Nash, Smoak & Stewart

(c) Mondaq Ltd, 2021

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.

This updated notice was sent to all eVP vendors 10/4/2021

To help slow the spread of COVID-19 and related variants, the state recently implemented new safety measures. All state cabinet agencies – including vendors - are now required to adhere to the new vaccination or testing policy (Executive Order 224) that became effective September 1, 2021.

All employees, contractors, students, temporary staff, or volunteers, within a state cabinet agency office, building, or facility, must wear appropriate face coverings regardless of vaccination status unless exempt due to a qualifying reason. Additionally, all state employees, interns or volunteers, and contractors working on site at state cabinet agency facilities must demonstrate they are fully vaccinated or submit a COVID-19 test result at least once a week.

Similarly, North Carolina vendors and their representatives are expected to comply with the policy.  All contractor employees, interns, or volunteers working on site at a  state cabinet agency facility must:

1) Demonstrate that they are fully vaccinated or submit COVID-19 test results weekly if unvaccinated or partially vaccinated.

2) Wear a face covering where required, regardless of vaccination status.   

Contractors are responsible for their employees’ compliance with EO224.

For more information on the state vaccination or testing policy can be found on the NC Office of State Human Resources website.

Thank you for your commitment to serving the state of North Carolina and your support to ensure a safe and healthy workplace.

One Town Square Blvd, Suite 100, Asheville, NC 28803 +1 (800) 621-2685 [email protected]