On August 3, 2020, in an action brought by the State of New York (New York) against the U.S. Department of Labor (DOL), a court in the Southern District of New York granted summary judgment to New York and vacated four features of the DOL’s April 1, 2020 Final Rule implementing the Families First Coronavirus Response Act (FFCRA).

The ruling strikes down the DOL’s (1) requirement that an employee is not eligible for FFCRA leave unless the employer has work for the employee; (2) definition of “health care provider”; (3) prohibition on intermittent leave without employer consent when needed for school or childcare closures; and (4) requirement that employees submit documentation “prior to taking” FFCRA leave.

The impact of this decision is unclear. If the decision stands (the DOL may appeal and seek a stay of the ruling), it would have the effect of substantially enlarging FFCRA leave entitlements beyond what the DOL contemplated in its Final Rule. It could also encourage employees who were denied leave previously to seek those benefits retroactively or prospectively, including by making claims.  Further, unless and until the DOL issues replacement regulations, employers will have to navigate the regulatory gaps created by the now-invalidated rules.

We describe each vacated provision in turn.

The work-availability requirement

The FFCRA grants paid leave to employees who are “unable to work (or telework) due to a need for leave” because of certain qualifying conditions. In its Final Rule, the DOL interpreted the phrase “due to” as requiring a causal connection between the need for leave and the qualifying condition, and determined that FFCRA leave was not available for employees whose employers “do[ ] not have work” for them.

The court vacated this exception. The upshot is that employees who seek leave for a qualifying reason may be entitled to it even if their employer “does not have work” for them. The consequences could be far-reaching. For instance, employees who were furloughed or laid off prior to exhausting FFCRA leave may argue entitlement to those benefits regardless of the employment suspension or loss. The decision also could impact entitlement to unemployment benefits.

The definition of “health care provider”

The FFCRA permits an employer of “an employee who is a health care provider . . . to exclude such employee” from expanded FMLA benefits. The statutory definition of “health care provider” includes doctors and “any other person determined by the [DOL] to be capable of providing health care services.”

In the Final Rule, the DOL defined the term “health care provider” broadly to include:

anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,

as well as

any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

The court vacated the DOL’s definition of “health care provider,” holding that it impermissibly expanded that definition beyond the confines of the statute. The DOL may attempt to redefine the term, but there is now renewed ambiguity over who constitutes a “health care provider” to whom an employer may deny FFCRA leave benefits. Individuals who were previously denied FFCRA benefits under the “health care provider” exception might now seek FFCRA leave retroactively and/or prospectively.

Intermittent leave

The Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree,” and, even then, only for a subset of the qualifying conditions for leave. The court accepted—and embraced—the DOL’s position that this restriction forbids intermittent leave when it is sought for a single qualifying reason, but does not restrict an employee from taking additional leave for a different qualifying reason. For example, an employee cannot take intermittent leave to seek a COVID-19 diagnosis, but could take a second chunk of leave if she later needs leave to care for her child due to school closure.

The court did, however, vacate the Final Rule on intermittent leave to the extent that it prohibits intermittent leave without the employer’s consent for qualifying reasons that do not “correlate with a higher risk of viral infection.” In other words, although the DOL had a reasonable basis to allow employers to forbid employees from coming in and out of the workplace while they are being checked for, have been exposed to, or have been diagnosed with COVID-19 (i.e., to prevent that employee from spreading the virus), the court found that the DOL had no justification for requiring employer consent for intermittent leave to care for a child whose school or childcare is closed. The takeaway is that, if the ruling is not stayed or reversed on appeal, employers cannot prohibit employees from taking intermittent leave when they wish to do so for childcare reasons unrelated to any confirmed or suspected COVID-19 in the employee’s household.

Documentation requirements

The Final Rule required employees to submit certain supporting documentation to their employer “prior to taking [FFCRA] leave.” The court vacated this requirement, holding that it conflicted with two statutory provisions: (i) an exemption from advanced notice when the need for leave is unforeseeable, and (ii) a provision allowing employees to collect a day of paid sick leave before being required to give notice of the need for FFCRA leave.

While the court upheld the substance of the documentation requirements in the Final Rule, it eliminated the temporal aspect. Thus, employers cannot require documentation as a condition precedent to FFCRA leave, at least where one of the statutory exceptions applies.

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Employers will need to carefully monitor developments relating to this ruling, including whether it is stayed or reversed on appeal, or whether DOL issues new regulations or guidance in light of it.

Effective July 27, 2020, Virginia employers must comply with new COVID-19 workplace safety standards, known as the Emergency Temporary Standard (ETS). The ETS applies to all employers subject to the jurisdiction of the Virginia Occupational Safety and Health (VOSH) Program, which includes virtually all private and non-federal public employers in the Commonwealth.  Failure to comply with the ETS can result in fines as high as $130,463 per each “repeat” or “willful” violation.

Even employers that have carefully complied with or exceeded recommendations of the federal Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) will have work to do to comply with the ETS. The ETS not only effectively makes mandatory many recommendations of CDC and OSHA, it also imposes new obligations on Virginia employers, including:

  • A requirement to conduct a hazard assessment of each job task (or group of job tasks) in the employer’s workplace;
  • Employee training requirements;
  • For many employers, a requirement to prepare an infectious disease preparedness response plan (and to conduct additional training once it is established); and
  • A prohibition on retaliation against employees who exercise certain rights provided under the ETS.

All employers must conduct a hazard assessment

All employers must assess their workplace to determine the risk of COVID-19 exposure. Specifically, employers must classify each job task or group of similar job tasks according to the hazards employees are potentially exposed to, and label the risk as “very high,” “high,” “medium,” or “lower.”

  • “Very high” or “high” refers generally to healthcare- or mortuary-type settings where there is a significant potential for employee exposure either through very close contact (“very high”) or inside 6 feet (“high”) with individuals known or suspected to have COVID-19 or with other sources such as laboratory specimens. (Note: a person is “suspected” to have COVID-19 if the person has signs or symptoms of COVID-19 but has not tested positive, and no alternative diagnosis has been made).
  • “Medium” refers to tasks involving more than minimal occupational contact inside 6 feet with other employees, persons, or the general public who may be, but are not known or suspected to be, infected with the virus. Examples of “medium” risk include work in the food processing industry, commercial transportation, manufacturing, retail establishments including grocery and drug stores, restaurants, and healthcare settings not involving exposure to known or suspected sources of the virus.
  • “Lower” refers to tasks that do not require contact inside 6 feet with others who are known or suspected to be infected, or who may have the virus. Examples of “lower” risk include work in office settings where contact inside 6 feet can be avoided through social distancing, physical barriers, telework, and similar steps.

Because the ETS requires analyzing each job task (or group of similar job tasks), a single business may have different risk levels throughout the organization. The regulations provide that “[t]asks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”

For medium, high or very high risk job tasks, the employer must create a written certification of the hazard assessment. VOSH has posted a sample hazard assessment certification form that can be used to satisfy this requirement. (Although the regulations refer to assessment of job tasks or groups of job tasks, VOSH’s sample form suggests that an employer can alternatively classify individual employees or job categories.) Although not required by law, employers should consider creating a written record that a hazard assessment has been performed even with respect to tasks classified as lower risk.

The hazard assessment does not need to be submitted to VOSH but should be retained in the employer’s records.

Safety requirements

Once the hazard assessment is completed, employers must comply with requirements specific to the hazard level or levels identified in the workplace.

All employers must implement certain safety measures that are largely consistent with CDC/OSHA guidance, including:

  • Inform and encourage employees to self-monitor for COVID-19 symptoms;
  • Implement procedures for employees to report COVID-19 symptoms, and prohibit employees or other persons known or suspected to be infected with the virus from coming to work until cleared under return-to-work protocols;
  • Adopt flexible sick leave policies to the extent feasible and permitted by law and ensure that employees are aware of them;
  • Discuss with contractors and contractor employees the importance of individuals with known or suspected COVID-19 remaining out of the workplace until cleared to return;
  • Develop systems to receive reports of positive COVID-19 test results from employees and contractors, and notify i) others in the workplace who may have been exposed, or who were present at the workplace, within 24 hours of discovery of potential exposure; ii) the facility owner, within 24 hours of discovery of potential exposure; and iii) the Virginia Department of Health within 24 hours of the discovery of a positive case, and within 24 hours after learning that 3 or more employees at the same worksite tested positive in a 14-day period. All notifications must preserve the confidentiality of the infected person;
  • Establish return-to-work protocols for employees known or suspected to have COVID-19, based on either a “time-based” approach (i.e., 72 hours after resolution of fever without use of fever-reducing medications; improvement in respiratory symptoms; and at least 10 days since onset of symptoms), or a “test-based” approach (i.e., resolution of fever without fever-reducing medications; improvement of respiratory symptoms; and two negative COVID-19 test results at least 24 hours apart, with the cost of testing paid by the employer);
  • Ensure that employees observe physical distancing (e.g., by using signage/visual markers, limiting occupancy or access to common areas); and
  • Ensure ready availability of cleaning and disinfecting supplies (e.g., soap/water, hand sanitizer, etc.) and that common or shared work spaces, frequently touched surfaces, and shared equipment are regularly cleaned.

The ETS also requires prescreening or surveying of employees for COVID-19 symptoms before the start of each shift where the employer has job tasks at the worksite classified at medium, high, or very high risk. The ETS does not specify the form that prescreening or surveying should take.

ETS requirements with respect to employee face coverings and personal protective equipment (PPE) depend on the assigned hazard level. Specifically:

  • Face coverings are generally required in any setting (including lower-risk settings) whenever an employee has even brief contact with others inside of 6 feet;
  • In medium risk settings, employers must also both require and provide face coverings to employees with customer-facing jobs or whose job tasks do not permit physical distancing, unless greater protection (such a medical-grade mask) is indicated by the employer’s hazard assessment; and
  • For medium, high, and very high risk settings, employers must conduct a PPE assessment, with employee involvement, and select and have each employee use properly-fitting PPE appropriate to the hazard level, including respirators where indicated.

The ETS provides a medical exception to the face covering requirement and indicates that religious exemptions may be available in some circumstances. For employees in high and very high risk settings. the ETS contains additional requirements regarding PPE, as well as requirements concerning air-handling systems, enhanced training, medical monitoring, and psychological and behavioral supports for employees.

CDC “Safe Harbor”?

The ETS safety requirements are largely consistent with current CDC guidance, but there are differences. For example, the CDC’s current guidance for ending home isolation for infected persons no longer recommends a “test-based” approach and reduces the length of time the individual should be fever-free from 72 to 24 hours. Compliance with CDC guidance will be considered evidence of “good faith” in enforcement proceedings under the ETS. However, employers should be aware that compliance with CDC guidance is not a safe harbor if the ETS imposes a more stringent requirement. VOSH has stated that it will not provide advance guidance to employers on what is or is not more stringent.

Training requirements for all employers

The ETS also imposes training obligations based on the assigned hazard level. These requirements take effect August 26, 2020. Employers with medium, high, and very high risk job tasks must provide COVID-19 related training to all employees at the workplace regardless of the individual employee’s risk classification and must prepare a written certification that the training has been performed. A sample training certification form is available here. The training must cover:

  1. The ETS requirements;
  2. Other CDC or Virginia guidance the employer is complying with in lieu of the ETS (if any);
  3. Characteristics and methods of transmission of the virus;
  4. Signs and symptoms of COVID-19;
  5. Risk factors for severe COVID-19;
  6. Ability of pre-symptomatic and asymptomatic persons to transmit the virus;
  7. Safe and healthy work practices (such as physical distancing, disinfection procedures);
  8. PPE (when required, how to use); and
  9. The anti-discrimination provision of ETS.

Employers with only lower risk job tasks must provide oral or written information to employees on items 1, 3, 4, 6, 7, and 9 from the above list. A sample lower-risk training information sheet that can be provided to employees is available here.

Infectious disease preparedness response plan

Additionally, all employers with exposure risk levels of very high or high with any number of employees, and those with medium risk that have 11 or more employees, must—with employee involvement (or union involvement, if employees are represented)—develop and implement a written infectious disease preparedness response plan (Plan) and train employees on it. This requirement takes effect September 25, 2020. Employers must identify an individual “knowledgeable in infection control principles and practices” as they apply to the workplace who will have responsibility to administer the Plan.  In addition to covering the safety measures discussed above, the Plan must address the following subjects:

  • Persons at particularly high risk of COVID-19, e.g., those who have traveled to locations with “ongoing transmission,” and healthcare employees with unprotected exposures to persons known or suspected to be infected;
  • Employees who work at jobs for other employers with different hazard levels;
  • Individual risk factors due to underlying conditions, to the extent permitted by law;
  • Controls needed to address the foregoing risks; and
  • Contingency plans for issues that may arise during an outbreak, such as increased absenteeism and interrupted supply chains.

A template plan is available here.

Discrimination/retaliation

The ETS prohibits employers from discharging or otherwise discriminating against employees who exercise their rights provided under the ETS, including the right to wear the employee’s own PPE (such as a respirator, face shield, gloves, or face covering) if such equipment is not provided by the employer and does not create a greater hazard for the employee or a serious hazard for other employees.  Retaliation is also prohibited against employees who raise “a reasonable concern about infection control” related to the virus or COVID-19 to the employer, co-workers, a government agency, or to the public either in print or online, including on social media.

Enforcement and penalties  

The ETS will be enforceable by VOSH, which can inspect workplaces and impose financial penalties for violation, including up to $130,463 for each willful or repeated violation (with smaller penalties for lesser violations), as well as criminal penalties in certain circumstances.

Furthermore, the ETS requires employers to continue to follow any applicable Virginia executive or public health orders. Accordingly, employers in the Commonwealth will need to consult multiple authorities in order to protect workers and avoid criminal and/or civil penalties.

Takeaways for employers

The ETS will remain in effect until the earlier of six months from its effective date, expiration of the Governor’s State of Emergency, or adoption of a permanent standard.  Because these requirements may require substantial effort for many employers to comply, all Virginia employers should take immediate steps to come into compliance, beginning with conducting the required hazard assessment. To assist employers with their compliance efforts, VOSH has begun issuing guidance and training materials, some of which are linked above, and all of which are available here.

For more information regarding Virginia’s COVID-19 workplace safety standards or other COVID-19 issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

On July 8, 2020, the United States Supreme Court decided two cases addressing employers’ religious freedoms in very different contexts: one concerning whether religious school teachers could challenge adverse employment decisions in court, and one concerning rules permitting employers to assert religious and conscientious objections to a federal mandate to include contraceptive coverage in their group health plans.

First, in Our Lady of Guadalupe School v. Morrisey-Berru, the Court held by a vote of 7-2 that the so-called “ministerial exception” foreclosed federal employment discrimination claims brought by two religious school teachers against their former employers. The Court explained that the ministerial exception is rooted in the Religion Clauses of the First Amendment and serves the purpose of protecting religious institutions’ “autonomy with respect to internal management decisions that are essential to the institution’s mission,” including “the selection of the individuals who play certain key roles.” The Court first recognized the ministerial exception in the 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. There, the Court held that the ministerial exception applied to a teacher at a religious school based on the teacher’s religious training, her responsibility to teach religion and participate in religious activities with her students, and the fact that she held the title of, and held herself out to be, a “minister.” In Our Lady of Guadalupe, the Court clarified that the factors that informed its decision in Hosanna-Tabor did not establish a rigid “checklist” for determining when the ministerial exception applies. Rather, application of the exception depends on all of the circumstances relevant to the “fundamental purpose” of the exception. The Court held that the exception applied to both teachers in the cases before it, Catholic elementary school teachers who were in part responsible for “educating their students in the faith” and guiding them “toward the goal of living their lives in accordance with that faith.”

Second, in another 7-2 decision the Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania upheld a regulatory exemption for employers with religious and conscientious objections to the Affordable Care Act (ACA) “contraceptive mandate.” The contraceptive mandate is itself a regulation under the ACA that requires employers to provide contraceptive coverage to their employees through their group health plans. At issue in the case were two rules jointly promulgated by the Departments of Health and Human Services, Labor, and Treasury (Departments). The first rule established a broad “religious exemption” from the contraceptive mandate for any employer that “objects . . . based on its sincerely held religious beliefs” to “establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.” The second rule added a “moral exemption” for employers with “sincerely held moral objections” to providing some or all forms of contraceptive coverage. Two states challenged the rules, arguing they lacked statutory authority and were procedurally invalid under the Administrative Procedure Act. The Court rejected these challenges, holding that the exemptions were within the Departments’ discretion to create under the ACA and were not procedurally infirm. The Court also concluded that the Departments did not err in looking to the Religious Freedom Restoration Act as a guide when crafting the religions exemption, observing that “[i]t is clear . . . that the contraceptive mandate is capable of violating RFRA.”

What does this mean for employers?

These cases involve discrete issues that may not be directly relevant to many employers. For religious employers, however, Our Lady of Guadalupe reinforces First Amendment protections with respect to personnel decisions for certain types of employees. And Little Sisters expands protections for all employers who invoke religious or moral exemptions to the ACA contraceptive mandate.

Readers with questions about these cases are encouraged to contact the authors of this article or the Hogan Lovells attorney with whom they normally work.[1]

[1]           Celine Dorsainvil, a 2020  Hogan Lovells Summer Associate, contributed to this article.

As explained in greater detail in a prior alert, Virginia has enacted a number of new employment laws that increase employee rights and protections. Most of these new laws took effect on July 1, 2020. One major impact of the laws is that employers are likely to have more discrimination claims adjudicated in Virginia state courts instead of federal courts. Shifting the forum for adjudication in this way may pose a significant disadvantage to employers, as the applicable procedures in Virginia courts can make it more difficult to win before trial. Because of the significant legal expenses incurred in litigating a case through trial, this may significantly increase the legal expense to employers even in cases where their defenses are strong, in some cases above the value of the claim itself. We discuss several considerations relating to this change below, including the benefits and drawbacks of requiring employees to enter into arbitration agreements. Continue Reading Strategic litigation considerations for employers in light of the Virginia Values Act

On July 14, 2020, Colorado Governor Jared Polis signed the Colorado Healthy Families and Workplaces Act (Law). The law has two significant impacts. First, as a temporary measure, it immediately expands leave rights related to COVID-19 by requiring employers of any size (including employers with greater than 500 employees who are exempt from the Families First Coronavirus Response Act (FFCRA)) to provide leave for the reasons and the amounts set forth in the FFCRA to employees through the end of 2020. (For more information and summaries of the FFCRA please see our prior blog posts.)

Second, as a more permanent measure, beginning January 1, 2021, the Law will establish a new statewide paid sick leave law similar to laws enacted in other states. The changes taking effect in 2021 are summarized below.

Which employers and employees are covered? Between January 1, 2021 and December 31, 2021, employers with 16 or more employees must provide paid sick leave as specified in the Law. Effective January 1, 2022, all employers must provide paid sick leave as specified in the Law.

How much sick leave must be provided? Employees will earn at least one hour of paid sick leave for every 30 hours worked by the employee, and employees may earn and use a maximum of 48 hours of paid sick leave each year (unless the employer sets a higher limit). The employer may limit carrying over more than 48 hours of paid leave from year to year, and can also prohibit an employee from using more than 48 hours of sick leave in one year. Employers must provide additional accrued paid sick leave as necessary during public health emergencies for purposes specified in the Law, including but not limited to the need to self-isolate or seek medical care after experiencing symptoms of or being diagnosed with the illness that is the cause of the public health emergency; the need to care for a family member who is self-isolating or needs medical care after experiencing symptoms of or being diagnosed with such an illness; or inability to work due to a health condition that may increase the employee’s susceptibility to the illness.

When do employees begin accruing leave? Employees begin accruing paid sick leave when employment begins and may use the paid sick leave as it is accrued.

For what purposes may sick leave be used? An employee must be permitted to use sick leave where:

  • The employee has a mental or physical illness, injury, or health condition that prevents the employee from working, or needs to care for a family member with a mental or physical illness, injury, or a health condition;
  • The employee or a family member the employee is caring for needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
  • The employee or a family member the employee is caring for needs to obtain preventive care;
  • The employee or a family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention, obtain services from a victim services organization, obtain mental health, seek relocation, or seek legal services; or
  • A public health emergency exists and a public official has ordered closure of the employee’s place of business, the school or place of care of the employee’s child.

In what manner may an employee request use of his or her paid leave? An employer must allow an employee to use paid sick leave whether the request is made orally, in writing, electronically, or by any other means acceptable to the employer. Employers may create written policies with reasonable procedures for providing notice for use of paid sick leave when the need for leave is foreseeable, but cannot deny paid sick leave based on noncompliance with such policies where the employee provides otherwise-appropriate notice.

When may an employer require documentation? An employer may require reasonable documentation for paid sick leave of four or more consecutive work days.

What if an employer already has a paid time off or paid sick leave policy? Employers may use existing paid leave policies to satisfy the Colorado requirements so long as the terms are equal to or more generous than the Law requires.

What notices must an employer provide to its employees? Employers must provide notice to their employees, informing them of their right to leave under the Law. The notice must be in the form of written notice to employees and posters containing information about the Law. Employers may use posters and notices that will be published by the Division of Labor Standards and Statistics in the Department of Labor and Employment to satisfy the notice requirements, although they are not yet available. Notice requirements are waived during periods in which a business is closed for a public health emergency.

Are employees entitled to payment for unused sick leave upon termination? The Law does not require employers to pay employees for unused paid sick leave upon termination of the employment relationship. But an employee can recover paid sick leave as a remedy for a retaliatory action that prevented the employee from using the paid sick leave. Additionally, after termination of an employment relationship, if an employer rehires an employee within six months after separation, the employer must reinstate any paid sick leave that the employee accrued but did not use (and was not otherwise compensated for) during the employee’s previous employment.

What are the consequences for failure to comply? Employers who fail to provide leave under the Law may be subject to civil actions, payment of back pay, and additional consequences. Employers who willfully violate the notice provisions under the Law are subject to civil fines of up to $100 per violation.

* * * *

Employers should update or establish paid sick leave or paid time off policies consistent with the Law—immediately implementing the COVID-19 leave requirements and implementing by January 1, 2020 the long-term paid sick leave requirements. As the requirements change during the Law’s phased approach, employers should continue to update and ensure compliance with such policies including properly notifying employees.

For more information about the Law or other workplace policy issues, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

As workplaces continue to reopen, certain companies have begun to require their employees to sign waivers upon reentry to the workplace.  Hogan Lovells employment partner Mike DeLarco recently provided commentary on when (if) such waivers should be used, in an article on the Society for Human Resource Management website, available here.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) permits employees and their dependents to extend health coverage under an employer’s group health plan when coverage would otherwise be lost due to termination of employment or other “qualifying events.” Under COBRA, employees must receive specific notices explaining their COBRA rights. In recent months, there has been an onslaught of class action litigation against employers who are allegedly omitting critical information from their COBRA notices. While seemingly a mere oversight, class action litigation over faulty COBRA notices may involve thousands of participants and beneficiaries of a health plan, and amount to millions of dollars in informational and economic injuries, specifically in the form of lost health insurance and unpaid medical bills. Just last week, a Fortune 500 company settled a class action lawsuit, relating to deficient COBRA election notices, for US$1.6 million dollars.

In addition to informational and economic damages asserted by individuals, the Department of Labor (DOL) and Internal Revenue Service (IRS) have the right to impose civil penalties if COBRA notices are noncompliant. The DOL can impose civil penalties up to US$110 per day per person and the IRS can impose an excise tax of US$100 a day per beneficiary and US$200 a day per family, until employees receive an adequate notice. In the context of class action litigation, employers may face hundreds of thousands of dollars in damages although certain defenses may be available.

The specifics of COBRA notices are fairly straightforward. Principally, an employer subject to COBRA is required to notify its group health plan administrator within 30 days after an employee’s termination of employment, or certain other qualifying events. Within 14 days of that notification, the plan administrator is required to notify the individual of his or her COBRA rights. If the employer is also the plan administrator and issues COBRA notices directly, the employer has the entire 44-day period in which to issue a COBRA election notice. COBRA election notices must be written in a manner calculated “to be understood by the average plan participant” and include:

  • The name of the plan and the name, address, and telephone number of the plan’s COBRA administrator;
  • Identification of the qualifying event;
  • Identification of the qualified beneficiaries (by name or by status);
  • An explanation of the qualified beneficiaries’ right to elect continuation coverage;
  • The date coverage will terminate (or has terminated) if continuation coverage is not elected;
  • How to elect continuation coverage;
  • What will happen if continuation coverage isn’t elected or is waived;
  • What continuation coverage is available, for how long, and (if applicable), how it can be extended for disability or second qualifying events;
  • How continuation coverage might terminate early;
  • Premium payment requirements, including due dates and grace periods;
  • A statement of the importance of keeping the plan administrator informed of any new addresses of qualified beneficiaries; and
  • A statement that the election notice does not fully describe COBRA or the plan and that more information is available from the plan administrator and in the summary plan description.

Failure to comply with the details of COBRA notice requirements may have significant consequences if not remedied. A current putative class bringing a lawsuit, for instance, alleges that a Fortune 500 company’s COBRA notices are confusing, misleading, and fail to identify the administrator of the health plan or explain how to enroll in COBRA coverage, instead directing workers to a “catch-all” human resources phone number. Similarly, a class action lawsuit brought against another large employer alleges that its COBRA notices fail to include an address indicating where COBRA payments should be mailed, explain how to enroll in COBRA, and provide information about the COBRA administrator, but merely direct employees to a general human resources phone number. In another COBRA notice class action filed this June, the putative class alleges that COBRA notices are not “written in a manner calculated to be understood by the average plan participant” because the notices fail to sufficiently identify the plan administrator or provide a termination date for COBRA coverage if elected. An airline is facing a class action COBRA notice lawsuit, whereby its employees allege that its COBRA notices were noncompliant in failing to include the date of the qualifying event or the name of the plan and plan administrator. Moreover, the putative class alleges that the company failed to timely provide the notice within the requisite 44-day period.

More than 20 class action lawsuits have been filed in 2020 for alleged COBRA notice deficiencies against companies of all sizes. Employers should be familiar with the content and details of their COBRA notice obligations and review their COBRA notices carefully to ensure that all requisite information is provided. The DOL has provided a model COBRA notice and considers use of the model notice to be good faith compliance with the general notice content requirements of COBRA. Employers who choose not to use the DOL model notice should compare their notices to the model notice to ensure they are sufficiently detailed to comply with COBRA. Moreover, the use of a third party administrator to issue COBRA notices does not mitigate an employer’s risk of noncompliance. Employers should periodically check in with their third party administrators to ensure that they are aware of current legal developments, as well as draft their service agreements to provide for indemnification of the employer for any acts of negligence or contractual breaches with respect to COBRA compliance. We recommend engaging the advice of counsel to review COBRA notices issued by your company or a third party.

The employment and benefits lawyers at Hogan Lovells remain abreast of the requirements of COBRA notices and are prepared to answer any questions that may arise.

After several weeks of discussion, the Virginia Safety and Health Codes Board (Board) on July 15, 2020 adopted the nation’s first workplace safety standards designed to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19. At this time, the text of the Emergency Temporary Standard (ETS) has not been finalized; however, it will take effect immediately upon final publication, which is expected sometime during the week of July 27, 2020. The announcement of the Board’s action is available here. These standards will be enforceable by the Virginia Department of Labor and Industry’s Occupational Safety and Health Program (VOSH), which can inspect workplaces and impose financial penalties for violation, including up to $130,463 for each willful or repeated violation (with smaller penalties for lesser violations), as well as criminal penalties in certain circumstances.

When it becomes effective, the ETS will apply to all employers in the Commonwealth. Under the most recent, but non-final, version of the ETS, employers will need to assess each employee’s exposure risk level (i.e., “very high,” “high,” “medium,” or “lower”) based on the employee’s job tasks and the specific hazards they face at work to determine the applicable safety standard. Accordingly, employers may need to implement several different standards regarding social distancing, personal protective equipment (PPE), face coverings, sanitization/hygiene, health screenings/testing, and other return-to-work protocols.

The VOSH Program is expected to release training and resource materials on the ETS. Once the ETS becomes effective, employers will have 30 days to provide training to employees on the new standards and 60 days to develop and train employees on an infectious disease preparedness and response plan.

Employers should watch closely for further developments. For more information regarding Virginia’s COVID-19 workplace safety standards or other issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

The District of Columbia recently adopted a new version of emergency laws requiring employers to provide both paid and unpaid leave to eligible employees for certain COVID-19 related reasons. The Mayor signed the Coronavirus Support Emergency Amendment Act of 2020 and the Coronavirus Support Clarification Emergency Amendment Act of 2020 (together, CSEA) into law on May 27,2020 and July 7, 2020, respectively. CSEA replaces prior versions of the District’s COVID-19 related emergency leave laws.

In brief, the CSEA:

  • Amends the D.C. Accrued Sick and Safe Leave Act (ASSLA) to require employers with between 50 and 499 employees (other than “health care providers” as defined in the law) to provide eligible employees with up to 2 weeks of paid “public health emergency leave” at full pay for any reason for which paid leave is available under the federal Families First Coronavirus Response Act (FFCRA). We blogged about the reasons for FFCRA leave in a previous post. Employees who have been employed by the employer for at least 15 days prior to the leave request are eligible for D.C. public health emergency leave. The leave may only be used concurrently with or after exhausting other paid leave benefits under the FFCRA or other applicable laws or the employer’s own leave policies. The CSEA contains provisions for coordinating benefits to avoid duplication.
  • Expands the D.C. Family and Medical Leave Act (DCFMLA) to require all employers with one or more employees in D.C. to provide 16 weeks of unpaid, job-protected “COVID-19” leave to eligible employees who are unable to work because (a) a health care provider has recommended “that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19”; (b) the employee is caring for a family or household member who is “under a government or health care provider’s order to quarantine or isolate”; or (c) the employee “need[s] to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.” Employees are eligible for this leave if they have worked for the employer for at least 30 days prior to the leave request.

These leave entitlements apply only for the duration of the public health emergencies declared by the Mayor, which are currently slated to expire on July 24, 2020, but may be extended. The CSEA itself is also a temporary measure, which is currently set to expire August 25, 2020, unless it is extended.

Earlier this month the D.C. Office of Human Rights (OHR), which administers the DCFMLA, issued  enforcement guidance and a workplace poster related to the CSEA’s expansion of the DCFMLA. The poster states that employers “must post and maintain this notice in a conspicuous place and transmit it to remote employees.” The D.C. Department of Employment Services (DOES) Office of Wage-Hour Compliance (OWH), which administers the ASSLA, has not issued guidance or a poster on D.C. public health emergency leave.

For answers to your questions about how the D.C. COVID-19 leave laws or other leave laws impact your workplace, contact one of the authors of the post or another Hogan Lovells lawyer with whom you regularly work.

Recent events across the U.S. have spurred companies to reexamine diversity and inclusion (D&I) policies and efforts in order to better address inequities in the workplace. In this webinar, our Hogan Lovells employment team will discuss the legal and practical considerations of popular initiatives such as hiring quotas, self-identification questionnaires, and pay equity studies so that companies are better equipped to meet their D&I goals while mitigating potential legal risk.

We hope you will join us on July 2 from 12:00pm -1:00pm EDT. To register please click here.