AAG’s 2022 Educational Seminar Recording Available

The recorded presentation of AAG’s 2022 Education Seminar held on April 7, 2022 is now available for viewing.

Guest Speaker and Attorney Keith Hammond, of Hammond Law Center, focuses on changes in employment law that have occurred over the past year. Some of the topics addressed include new regulations under the Biden administration, as well as how the new DOL Secretary Marty Walsh and Democratic controlled NLRB could impact your business. 

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

Should Employers Rescind Their Mask Mandates? A Pros and Cons List to Consider Before Dropping Your Pandemic Policies

As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month. As of today, only 10 states require masks – and many of those requirements apply only in certain limited settings, such as in the healthcare context, shelters, residential care facilities, and schools. The lifting of these governmental mask mandates raises the question of whether employers should continue to require masks in the workplace as a matter of internal policy. There’s no “one size fits all” answer to this question. Rather, each business should weigh the pros and cons of requiring masks in their workplace and decide what’s best for their particular locations and circumstances. 

What Does the Law Say?

Importantly, the CDC still recommends that masks be worn in places of high transmission. As of today, that covers only about 15% of the country and that number has been decreasing.  Employers who don’t follow the recommendations of the CDC (and applicable state and local health departments) do so at their own peril. That’s because OSHA or a state OSHA agency can – and often does – cite employers under the “General Duty Clause,” using the failure to follow recommended safety measures (i.e. CDC recommendations) as the basis for the alleged violation.

The General Duty Clause of the OSH Act broadly requires that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This clause has served as OSHA’s COVID-19 workhorse, as the agency has not successfully issued new specific pandemic-related standards applicable to most employers but repeatedly cited employers under the General Duty Clause for failures related to masking.

While OSHA looks to CDC recommendations in issuing its own guidance documents for employers related to COVID-19 and workplace safety, it has not yet updated them to reflect the CDC’s recent relaxation of masking recommendations.

It is therefore prudent for employers to continue to require masks, regardless of vaccination status, in places of high transmission and to continue to track the CDC Date on Community Transmission Levels to make sure your workplaces are not in a place of high transmission. In places of “medium” or “low” transmission, the CDC does not currently recommend masks (except in areas designated as “medium,” where it recommends that those who are immunocompromised or at high risk for severe illness should confer with their doctor about whether to wear a mask). That means in these areas it is up for the employers to decide what to do.

Finally, before brainstorming about possible next steps, make sure you understand the lay of the land in your own state. 

Pros and Cons of Lifting Mask Requirements

Once you understand the lay of the land, you’re ready to consider the various pros and cons associated with removing mask requirements at your business.

Pros:

• Many employees are ready to stop wearing masks and have begun doing so when not at work.
• As other employers lift their mask mandates, not doing so could hurt efforts to attract and retain talent. In today’s competitive labor market, this is a particularly relevant concern.
• Mask mandates are difficult to enforce, especially if the requirement is based on vaccination status.
• Mask mandates may create resentment from and between employees, especially if based on vaccination status.

Cons:

• As noted, it is prudent to keep masks in place at least in areas of high transmission. For national employers, this may mean different policies in different locations which can create logistical and communication issues.
• Recognize that you could open yourself up to an OSHA inspection (which you can track here) or a General Duty Clause citation if you drop your mask mandate too quickly or in an inopportune setting.
• While COVID-19 cases have been decreasing steadily, this was also the case in mid-2021. While we hope not to endure another dramatic spike in cases (reminiscent of the Delta and Omicron variants), one certainly could arise. So employers who lift their mask mandates need to accept the risk that they may have to reinstate them at some point (at least in some areas). As we’ve seen with stay-at-home recommendations, for example, putting the genie back in the bottle is not easy.
• While not everyone agrees on the degree of protection, masks clearly help in preventing transmission of COVID-19. As such, not requiring masks increases the chances of employees getting the virus, which could place stress on your workforce (and, in some locations, require you to provide paid leave).

 

Leadership Seminar Recording Available

The recorded presentation of AAG’s Mental Health First Aid for Supervisors held on March 10, 2022 is now available for viewing.

Guest speaker Joyce Marter is a licensed psychotherapist, entrepreneur, national public speaker, and a mental health thought leader.

Behavioral health issues in the workplace cost American employers over $500 billion a year. In this dynamic and interactive workshop, supervisors and leadership were equipped with tools to reduce absenteeism and healthcare costs and increase employee wellness, retention, productivity, and morale. Attendees learned about the current trends in mental health and addiction and learn tools for prevention, early detection, and referral for appropriate levels of care. Participants were taught how to respond to mental health issues in the workplace in a collaborative way that is kind, compassionate, effective, and legally sound. Innovative tools, exercises, and resources are shared that make for excellent ongoing wellness programming.

This seminar is also approved for 1 Professional Development Credits (PDCs) with SHRM for all attendees.

Please contact our office for the link to view the presentation or the Activity ID for the PDCs.

What Businesses and Employers Should Do as CDC Loosens COVID-19 Mask Guidelines

As most states lift their mask mandates, the Centers for Disease Control and Prevention (CDC) announced Friday (2/25/22),  that the agency has adopted new metrics for determining whether to recommend face coverings – a shift that will result in most Americans no longer being advised to wear masks in indoor public settings. By moving away from looking solely at the number of COVID-19 cases in a given area but instead taking into account local hospitalizations and hospital capacity, the updated metrics will create room for businesses and employers to revisit their own approaches to masking policies. What should you know about these changes before making a decision for your organization?

What Changed?

The CDC’s previous guidelines recommended that fully vaccinated individuals residing in communities of substantial or “high” transmission wear a mask in indoor public settings. Given that the standards solely examined the positivity rate of COVID-19 cases in a community, roughly 95% of counties in the United States met the definition of substantial or high transmission.

The metrics used to determine whether to recommend masks will now take a more holistic view of the risk COVID-19 to a community. The number of COVID-19 cases will still but considered, but hospitalizations and local hospital capacity will also be taken into account. 

The CDC adopted “COVID-19 Community Levels” of “Low,” “Medium,” and “High” to help communities decide what recommendations and requirements to put in place. The CDC has provided a “COVID-19 County Check” tool to find the community level in a particular county and the prevention steps recommended for that county.

• Under the updated guidance, only those living in areas of “High” COVID-19 community levels are encouraged to wear a mask indoors in public, regardless of vaccination status. As of the CDC’s announcement, only 37% of counties in the U.S. fall into this category.
• In areas designated “Medium,” the CDC recommends that individuals who are immunocompromised or at high risk for severe illness should talk to their healthcare provider about whether to wear a mask or not. But all others in these areas – amounting to nearly 40% of U.S. counties – are no longer advised to wear a mask in these areas.
• In areas designated “Low,” the CDC leaves the decision of whether to wear a mask or not up to each person individually, based on personal preference and personal level of risk. 23% of counties are currently classified at the low-risk level.

Given the highly transmissible but less severe nature of the omicron variant, masks will no longer be recommended for the vast majority of Americans, including those who remain unvaccinated.

What Should Employers and Businesses Do?          

The CDC’s new guidance provides important considerations for employers who have been considering rescinding their masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. That’s because while OSHA has not yet expressly adopted the most recent CDC guidance, OSHA’s guidance repeatedly refers to CDC guidance.

Employers should review their local and state masking requirements and continue to comply with those requirements. For employers in areas where a mask mandate is no longer in place, they should review the CDC’s latest guidance and utilize the COVID-19 County Check tool to make an informed decision regarding their mask policy.   

Employers who lift their mask mandate should make sure that employees who continue to voluntarily wear a mask do not face illegal mistreatment at the hands of supervisors or coworkers. Make sure your employees know that retaliation, discrimination, and harassment will not be tolerated, and include this prohibition in written policies distributed to all workers.

ACA Reporting Deadline Reminder

• By Feb 28th if filing via paper
• By March 31st if filing electronically

Virtual Mental Health Care Presents Opportunities—and Potential Risks

A sharp rise in the availability of telehealth benefits has opened up new opportunities for mental and behavioral health counseling, as well as challenges for health care providers, employers and employees.

Addressing a ‘Mental Health Crisis’

“The COVID-19 pandemic has created an unprecedented mental health crisis” with increased cases of depression, substance abuse and suicide, said Dennis Urbaniak, executive vice president of digital therapeutics at global pharmaceutical company Orexo. “The ability to receive care regardless of a person’s geographical location or proximity is obviously appealing, particularly when it comes to mental health care, which unfortunately continues to be surrounded by stigma, especially in the workplace,” he pointed out.

Employees in small cities that might not have enough local demand for a certain type of group can still get the support and resources they need by connecting with others, who could be located literally around the globe, Urbaniak noted. So it’s no surprise that virtual mental health care options have been on the rise.

At Voya Financial, chief HR officer Kevin Silva said that while telehealth options for acute physical care were already available to employees pre-pandemic, these options have been expanded to include primary care and mental health care. “Telehealth visits spiked for Voya in 2020 and have yet to return to pre-pandemic levels,” Silva shared. “Many employees prefer the convenience of telehealth [for physical and behavioral health visits] and it’s beneficial to employers because appointments are quicker with less impact to productivity.”

Virtual care is also being further automated through artificial intelligence, so that sometimes the “doctor” an employee may be interacting with isn’t a doctor at all. Wysa, an AI- and human-driven digital mental health app, provides counseling and support delivered by both credentialed mental health counselors and an AI chatbot available to employees and other users 24/7. The AI chatbot uses AI-CBT (cognitive behavioral therapy) to help people through their challenges and adapts to their unique situations based on their responses.

Zooming into Group Therapy

Many employees continue to feel isolated and anxious as remote and hybrid work continue. The opportunity to get together virtually to share concerns or participate in group treatment options can help.

Zoom, the popular app for holding online business meetings, is now being used by some mental health services providers as a virtual venue for behavioral group therapy or disease management support. For example, BrightView, an addiction services treatment provider in Cincinnati, facilitates virtual group therapy via Zoom to “help provide a safe environment [for patients] to heal emotionally, connect to others who understand your background, express your ideas, reflect on your experiences, and engage in support,” according to the organization’s website.

Psychotherapist Sean Grover described how during the pandemic he began using Zoom for therapy groups he had formerly held in his New York City office. “I didn’t have high hopes,” he wrote. “I decided not to charge for the first Zoom sessions because I was confident that online therapy groups would be a snoozefest. … I was wrong. From the first session, I could see that group members [were] starved for contact. They were thrilled to see each other.”

Zoom groups provide more flexibility for busy patients, Grover noted. Due to schedule conflicts, illness, child care and other priorities, group members often “would have to miss the session or even drop out of group. Now they call in from home, the office or other locations.”

As the pandemic wanes, Grover continues to offer Zoom sessions for individual and group therapy, as do other therapists, although some have raised concerns over hacking risks (see the discussion of privacy issues, below).

Effective Care

The early evidence suggests that virtual care for mental and behavioral health issues is effective. Virtual care provider Teladoc’s 2021 Mental Health Survey of 2,253 U.S. adults found that:

• Mental health support seekers give nearly identical high ratings to their virtual and in-person mental health care experience.

• 92 percent of virtual mental health support seekers report at least some improvement during the pandemic, with over a third reporting a “breakthrough.”

• 75 percent of those with anxiety reported improvement after the fourth visit, and 76 percent of those with depression reported improvement after the third visit.

Despite the promise of this technology to serve a wide range of needs while improving access and even reducing costs, there are some caveats to be aware of. For instance, the Teladoc survey showed that:

• Almost 70 percent of respondents believe it is too difficult and overwhelming to use multiple websites, mobile apps and virtual care platforms to address their mental health.

• 78 percent said they preferred a single, unified experience for mental and physical health virtual care.

Privacy Issues

Using Zoom for group therapy does pose the potential for privacy risks.

It’s better to hold such group meetings in a specific telemedicine tool, since health tech vendors typically take extra steps to ensure end-to-end security of their customers’ health data in such apps versus Zoom.

Concerns over data privacy were also raised by Dr. Mark Kestner, chief innovation officer with MediGuru, a telehealth services provider.

“The data generated by the virtual visit must be compliant with privacy standards and integrated into the clinical plan to measure the quality and outcome of care,” he said. “While the thought of ‘care anywhere’ is intriguing, there are limitations on the clinical force, such as state licensure and credentialing for the service.”

 

At-Home COVID-19 Testing Options and Alternatives

In fulfillment of President Biden’s promise to make at-home COVID tests more available for all of us, two significant action steps have now occurred:

1. Every U.S. household has access to free at-home COVID-19 tests. As of January 18, 2022, any individual with a residence in the United States may request up to four (4) at-home COVID test kits.  There is no cost to register or for the kits themselves.

2. At-home COVID-19 testing is available at no cost without a prescription under an employer’s group health plan. On January 10, 2022, the Department of Labor (DOL) released updated guidance and an FAQ that, as of January 15, 2022, now extends an employer’s obligation to cover all types of COVID-19 tests, between those performed or prescribed by a physician or other health care provider,  and for in-home COVID-19 tests provided without a doctor’s order.

Key Points:

All group health plans and insurance carriers must now cover the cost of at-home COVID-19 test kits, passing none of that cost to employees or individuals covered under the plan, and without requiring a medical diagnosis or prescription from a health care provider.

• The plan or insurer need not provide this coverage to employees not covered under the employer’s plan.
• For these purposes, the coverage can be provided through an employer’s medical plan, pharmacy benefit plan/PBM, or both. Employers should discuss the options and costs for administering this arrangement under their particular plan with their brokers and consultants or insurance carriers.
• The guidance allows a plan or insurer to meet this coverage obligation in one of two ways:
  • The plan can work with its insurance carrier or third-party claims administrator (TPA) to create “direct contract” arrangements with retailers (e.g., Walmart, RiteAid, Walgreens, etc.) and other insurance network providers to provide COVID tests to covered individuals at no cost to the individual at the counter; costs are negotiated and paid between the plan/insurer/TPA with the retail service provider directly.
  • Individuals can also purchase COVID tests through any other resource and submit the receipt for reimbursement through the plan or insurer’s established process, either through the insurance carrier, TPA or PBM. The maximum amount to be paid in reimbursement is the lesser of: (a) the actual cost of the COVID test; or (b) $12 per test (note: if the COVID kit comes with two tests, the cost to be reimbursed would be per test or a maximum of $24).  The plan or insurer does not have to reimburse for COVID tests purchased before January 15, 2022.
  • Suppose a plan or issuer is unwilling or unable to satisfy the above criteria in providing the opportunity to receive COVID testing coverage under either of the above criteria. In that case, the plan or issuer must still provide reimbursement of at-home COVID tests without the above cost limitations.
• The plan or insurer can limit the total number of COVID tests to 8 per person per month (or 4 kits if the kit includes two tests). A separate limit applies for each covered family member (e.g., a family of 4 could receive up to 32 tests per month (or 16 kits, if it includes two tests each).  There is no annual maximum limit.
• An individual need not provide proof of medical need, but the plan can require the individual to attest that they are purchasing only for personal use (not for resale).
• Employers are encouraged to communicate to all covered individuals about the alternatives available and processes for seeking reimbursement of purchased tests.
• The obligations for coverage of at-home COVID tests remain in effect for at least the remainder of the Public Health Emergency period, which has now been extended to at least April 15, 2022.
• COVID testing and other related costs provided at a health care provider or other health care facility as part of a medical assessment must still be covered 100 percent by the plan or issuer without being subject to the test or cost limits that apply for over-the-counter COVID tests, under previous guidance under the CARES Act, and the First Families Coronavirus Response Act (FFCRA).

 

ACA Reporting Deadline Reminder

• By Feb 28th if filing via paper
• By March 31st if filing electronically

Supreme Court Blocks Vaccine Mandate for Large Employers

Biden Administration Requires Insurance Companies and Group Health Plans to Cover the Cost of At-Home COVID-19 Tests

The Biden Administration is requiring insurance companies and group health plans to cover the cost of over-the-counter, at-home COVID-19 tests, so people with private health coverage can get them for free starting January 15, 2022. The new coverage requirement means that consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan.

Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover 8 free over-the-counter at-home tests per covered individual per month. That means a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment, and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.

As part of the requirement, the Administration is incentivizing insurers and group health plans to set up programs that allow people to get the over-the-counter tests directly through preferred pharmacies, retailers or other entities with no out-of-pocket costs. Insurers and plans would cover the costs upfront, eliminating the need for consumers to submit a claim for reimbursement. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12). For example, if an individual has a plan that offers direct coverage through their preferred pharmacy but that individual instead purchases tests through an online retailer, the plan is still required to reimburse them up to $12 per individual test. Consumers can find out more information from their plan about how their plan or insurer will cover over-the-counter tests.