GEA Newsletter - Special 51

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Subject: GEA Newsletter - Special 51

News

and Updates

Special #51 - July 14, 2020

Articles and Updates Today

- Constangy.com Podcast: News & Analysis - I’ll be watching you: The ins and outs of employee monitoring

Susan Bassford Wilson & Cherie Silberman

7.14.20

- Constangy.com Blog: Sexual orientation and gender identity in the workplace quiz!

BY ROBIN SHEA ON 7.10.20

- HRDive Article: Compliance questions remain after the high court's LGBTQ ruling

AUTHOR Ryan Golden @RyanTGolden
PUBLISHED July 13, 2020

- HRDive BRIEF : Employer didn't interfere with worker's FMLA leave after his 'informal' request

AUTHOR Lisa Burden
PUBLISHED July 13, 2020

- ¶47,127 CDC updates address COVID-19 testing for employers — PRACTICE TIP,

Written by Pamela Wolf, J.D.
July 14, 2020

- ¶47,128 Proposed regulations would allow grandfathered plans to make some cost-sharing changes without losing status — AGENCY REGULATION,

July 14, 2020

- Georgia Department of Public Health COVID-19 Daily Status Report

https://dph.georgia.gov/covid-19-daily-status-report

- List of GEA's Live upcoming Webinars- Mark your Calenders Registration starts soon

Cost $49.00 a Webinar

- Update on our 2020 Annual Conference at The Westin Harbor Golf Resort and Spa

Constangy.com Podcast: News & Analysis - I’ll be watching you: The ins and outs of employee monitoring

7.14.20

What happens if an employee drives the company car to a strip club for lunch? In the age of COVID-19, what privacy concerns does contact tracing raise? What do employers need to think about before implementing an employee monitoring, whether its via GPS chip or video surveillance? This episode delves into the where, when, why, and how of employee tracking and surveillance.

This podcast is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This podcast should not be used as a substitute for competent legal advice from a licensed attorney in your state.

Listen to Podcast ›

Constangy.com Blog: Sexual orientation and gender identity in the workplace quiz!
BY ROBIN SHEA ON 7.10.20
POSTED IN DISCRIMINATION, FIRST AMENDMENT, GENDER IDENTITY DISCRIMINATION, HARASSMENT, SEXUAL ORIENTATION

Read online>>

Test your knowledge!

How much do you know about the rights of LGBT employees? Take our quiz and find out! As always, the answers will appear after each question, so you can cheat all you want, and we'll never know. At the end there will be a special prize, selected especially for you!

Ready? Here we go!

No. 1: The U.S. Supreme Court recently decided in Bostock v. Clayton County that Title VII, which prohibits discrimination because of "sex," applies to discrimination based on sexual orientation and gender identity. What was the basis for the Court's decision?

A. Ya gotta roll with the times. Even though "sex" used to mean only biological men and women, it obviously means a lot more today.

B. When Congress enacted Title VII in 1964, everyone understood "sex" to include sexual orientation and gender identity.

C. There is no need to change or expand the meaning of "sex." If an employer treats an employee of one sex differently than a similarly situated employee of another sex, then it is discriminating on the basis of "sex" in the traditional sense. Therefore, if an employer takes action against a male employee because he is attracted to men or presents as a female but takes no action against a female employee because she is attracted to men or presents was a female, then the employer is discriminating on the basis of "sex." In the old-fashioned way.

D. Neil Gorsuch and John Roberts are a couple of dirty dogs.

ANSWER: C. The Court majority -- Justice Neil Gorsuch, who wrote the opinion, and Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor -- went with this "conservative" argument made by those who argued in favor of Title VII coverage for LGBT rights. (In my opinion, it was a brilliant choice by the lawyers and probably helped to bring Gorsuch and Roberts over to their side.)

No. 2: You're the Vice President of Human Resources for a company based in New York City. How much impact will the Bostock decision have on your company and your job?

A. Virtually none.

B. A ton!

ANSWER: A. The Supreme Court decision applies to Title VII only. If you're in New York City, you are already used to state laws and city ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Assuming you were already complying with those laws (and I have no doubt that you were), then the Court's decision about Title VII shouldn't affect you or your company much at all.

No. 3: You're the VP of HR for a company based in North Carolina -- which has no state-law LGBT protections -- but you have voluntarily adopted a company policy prohibiting discrimination and harassment based on LGBT status. How much impact will the SCOTUS decision have on your company and your job?

A. Virtually none.

B. A ton!

C. Maybe a teensy bit . . .

ANSWER: C. If you already have a policy prohibiting LGBT discrimination and harassment (and assuming you follow it, and I have no doubt that you do), you shouldn't be affected much by the Supreme Court decision. But you have lost a legal defense that could have resulted in dismissal of a wrongful termination lawsuit at the earliest stages.

(That defense goes like this: "Even if we did discriminate -- which we deny -- LGBT discrimination isn't against the law, so the court has to throw out this lawsuit right off the bat!" Your lawyers won't be able to do that any more because LGBT discrimination is now a valid legal claim. That isn't to say you might not be able to win your case at some later point -- for example, if you are able to prove that the employee was actually terminated for poor performance or another legitimate non-discriminatory reason.)

No. 4: You are VP of HR in a state that has no LGBT protections, and you don't have a policy prohibiting discrimination or harassment based on sexual orientation or gender identity. Now that federal law has changed, what should you do?

A. Update your EEO policy to include sexual orientation and gender identity.

B. Include in your harassment training some discussion and examples of harassment based on sexual orientation and gender identity.

C. Conduct a phony "reduction in force" and terminate all of your LGBT employees.

D. A and B.

E. All of the above.

ANSWER: D. If you have not been protecting your gay and transgender employees as a matter of policy and practice, and if LGBT discrimination has not been prohibited in your jurisdiction, then you will need to get yourself and your employees up to speed quickly. Amend your EEO and harassment policies now. And this topic should be included in any training you provide to members of management as well as your rank-and-file employees.

No. 5: You are VP of HR for a company where gay and lesbian employees are in the majority. One of your employees is straight, and he is being harassed about it by his co-workers. If he gets fed up and goes to the EEOC, could he have a valid Title VII "sexual orientation" charge against the company?

A. Yes

B. No

ANSWER: A. The new interpretation of Title VII would presumably also apply to employees who are discriminated against or harassed for being straight (or cisgender). The victim is still being harassed based on sexual orientation (or gender identity), which is now prohibited by Title VII.

No. 6: You are VP of HR for the staff at St. Conservative Traditional Values School. Your teachers are not ordained ministers, but they lead their classes in an opening prayer and a closing prayer, do the readings at weekly services, and provide an hour each school day teaching the Conservative Traditional Values faith to the children. Their contracts also provide that they will uphold Conservative Traditional Values . . . er, values. You have just learned that one of your teachers eloped last weekend with someone of the same sex. The Conservative Traditional Values Church is fine with same-sex marriage, but teaches that it's a sin to elope. Can you still terminate the employee after the Supreme Court's decision?

A. No! What are you, crazy?

B. Yes, you almost surely can.

C. No, but you can try eliminating this employee in a phony "RIF." You'll just have to wait at least a year to backfill the position -- otherwise, everyone will know it was phony.

ANSWER: B. The Supreme Court resolved that issue this week in another decision, in which it ruled that the First Amendment protects the right of religious organizations to make employment decisions without judicial interference. The Court's decision doesn't apply only to employees who violate the tenets of their employers' faith -- it applies to all employment decisions pertaining to "ministerial" employees. Because your teachers help to instruct the children in the faith, they would almost certainly be considered "ministerial" even though they are not ordained and may not even be "lay ministers." If they're "ministerial," they would not be able to bring claims against your school for any kind of discrimination under federal law -- including but not limited to LGBT discrimination.

HOW'DJA DO?

4-6 correct: Fantastic! Your heart must be swelling with pride!

2-3 correct: Fair to middlin'. (Not that there's anything wrong with that.)

0-1 correct: Oh, crap!

Just kidding! You all did great!

And now here is that special prize that I promised you: You won the pot of gold at the end of the rainbow! You are awesome!

Tags: Bostock v. Clayton County, First Amendment, Gender Identity, Harvey Fierstein, Independence Day, LGBT Discrimination, Our Lady of Guadalupe School v. Morrissey-Berru, Religion, SCOTUS, Seinfeld, Sexual Orientation, Supreme Court

HRDIVE Article: Compliance questions remain after the high court's LGBTQ ruling

AUTHOR Ryan Golden @RyanTGolden
PUBLISHED July 13, 2020

Read Online>>

The U.S. Supreme Court last month settled one of the biggest questions in employment law in recent years, ruling that Title VII of the 1964 Civil Right Act prohibits employment discrimination on the basis of both sexual orientation and gender identity.

The decision in Bostock v. Clayton County, Georgia, was a historic moment for individuals in the LGBTQ community and for their employers. While some workplace policies are certain to change in the coming months, sources who spoke to HR Dive emphasized that many of the ruling's outcomes may not be known for some time.

"It opens up a bunch of interesting things," David Flugman, partner at Selendy & Gay PLLC whose public interest practice is focused in part on advancing LGBTQ rights, told HR Dive in an interview. Title VII's mandate prohibiting employers from taking adverse employment actions or conditions of employment against an employee on the basis of protected characteristics is broad, Flugman said, which means the high court's order could impact any of several conditions of employment. "A lot of things could potentially fall under that ruling."

Likely points of discussion for HR

Some organizational policies are more likely than others to require attention in light of Bostock, however. Employers operating in cities and states that do not already have local protections against sexual orientation- and gender identity-based employment discrimination will need to ensure their policies and practices include such protections clearly, Jason Habinsky, partner at Haynes and Boone, told HR Dive in an email. "It follows that employers must also take all steps to enforce these protections, including updated training for supervisors and employees, as well as promptly investigating and soundly disciplining any violations on these bases," Habinsky added.

As far as specific policy updates, employers that did not prohibit discrimination on the basis of sexual orientation and gender identity in the past should clarify that their policies now prohibit such actions, Chai Feldblum, Morgan Lewis partner and former U.S. Equal Employment Opportunity Commission (EEOC) commissioner, told HR Dive in an email. "The employers should then also apply the same approach for internal investigations of sexual harassment and discrimination claims to claims based on sex, sexual orientation and gender identity," she said.

Beyond explicit claims of harassment and discrimination because of LGBTQ status, employers must also pay attention to more subtle complaints related to how covered employees are treated, Randy Coffey, partner at Fisher Phillips, said in an email. He added that the list of potential claims may include:

Allegations of differential treatment from others regarding work assignments, promotions and other consequential activities.
Religious references or comments from other employees.
Slights such as those related to bathroom preferences.
Exclusion of spouses and significant others for LGBTQ relationships at company events (when those individuals are included for other relationships).
Incorrect pronoun use.
"Employers will need to carefully consider whether employee complaints from LGBT employees potentially implicate concerns that might be considered harassment or contribute to a hostile work environment," Coffey said.

Implications for employee benefits

Employers may also be required to make, or may need to consider making, certain changes to employee benefits plans.

For example, employers that exclude same-sex spouses or domestic partners from plan coverage that would otherwise cover opposite-sex spouses or domestic partners may need to consider changing this. "In light of [Bostock], plans making differential coverage available on the basis of same-sex spouses would open themselves to Title VII sex discrimination claims," Coffey said. He added that many state laws regulating insured plan coverage require extension to same-sex spouses for any coverage based on marital status.

Additionally, employers may need to check for exclusions in group health plans or EAPs of services for transgender-specific needs including, but not limited to, services related to gender dysphoria and gender-affirmation surgeries as well as restrictions on mental health services relating to gender dysphoria. Similar changes may need to be made to restrictions on services for sex-specific care based on an individual's sex assigned at birth, gender identity or recorded gender, Coffey said.

"Employers will want to carefully review their medical coverage for these and similar differences that previously may have been acceptable, but which may now subject them to sex discrimination claims under Title VII," he added.

Transgender people should not be treated differently than cisgender people, Feldblum said: "The best practice for employers is to realize that a transgender woman is not partially or half a woman — she is a woman. The same goes for a transgender man — he is a man."

The unknowns

Other points are less clear. In a guidance document issued June 30, the EEOC noted that the Supreme Court's ruling does not address related issues under Title VII such as dress codes, bathroom access or locker room access. "The Court also noted that its decision did not address various religious liberty issues, such as the First Amendment, Religious Freedom Restoration Act, and exemptions Title VII provides for religious employers," EEOC said.

Pronoun policies are another area that may lack clarity, said Flugman, who said he isn't sure whether Bostock mandates such policies: "We'll only find out when we see courts address the issue." Some companies may opt to limit their liability as much as possible and draft policies, but each organization will likely make its own judgment of the risks involved before doing so, he said.

But employers should still educate themselves on the ways in which LGBTQ employees might feel marginalized or potentially harassed in the workplace, Feldblum said, including conventions around pronoun use.

"If a co-worker or a manager slips up by mistake and calls the person the wrong name or pronoun, employers should work to create a safe and inclusive workplace culture in which the transgender employee or a fellow co-worker feels comfortable and safe correcting the person, or a supervisor who hears the misuse of the name or pronoun would intervene," Feldblum said. "But if a coworker or a manager consistently and intentionally uses the wrong name or pronoun to create a hostile work environment for the transgender employee, and nothing is done to stop that, the employer is putting itself at legal risk."

Though the high court left areas like pronoun use open, employers may not receive a definitive answer on such issues "for quite some time," Coffey said. "The safest approach at this point is for employers to tread carefully and to protect themselves by having policies and approaches that are as broad and as inclusive of LGBT employees as the company is comfortable with, and giving consideration to how subjects that now-protected LGBT employees may find offensive should be addressed so that there this is consistency in that regard," he added.

The outcomes of future court decisions are one thing, but an employer's approach to diversity and inclusion is another. "I think that companies should be thinking about ways to innovate their employees' experience," Flugman said. "D&I is important to getting the best performance from people … it's good for business to be inclusive and remove obstacles."

Follow Ryan Golden on Twitter

HRDive BRIEF : Employer didn't interfere with worker's FMLA leave after his 'informal' request

AUTHOR Lisa Burden
PUBLISHED July 13, 2020

Read Online>>

Dive Brief:

An employee was fired for performance issues, not his requests for leave for his wife's pregnancy, the 2nd U.S. Circuit Court of Appeals ruled (Kelly v. Hartford Financial Services Group, Inc., No. 19-2865 (2nd Cir. July 1, 2020)).

Bryan Kelly sued Hartford Financial Services Group for interference and retaliation under the Family and Medical Leave Act (FMLA). Kelly said he "informally and verbally" notified his managers of his wife's second pregnancy and his intent to take FMLA leave about eight months later. But he "never once" applied for leave in the six months between his notifying his managers and his termination, the court noted.

The district court ruled for the employer on summary judgment. The appeals court affirmed the lower court's decision for "substantially the same reasons" — Kelly's "well-documented and long-running behavioral and performance issues," which began before any FMLA request or leave.

Dive Insight:

The FMLA makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of, or the attempt to exercise" the rights provided by the FMLA, meaning that employers can't discriminate or retaliate against employees who take or attempt to take FMLA leave. Employees generally must be permitted to take FMLA leave when they are entitled to do so.

Generally, once an employer is aware that an employee needs leave for a reason that might be covered by the FMLA, it has five days to give the employee an eligibility determination and a notice of rights and responsibilities. The U.S. Department of Labor's (DOL) Form WH-381 can satisfy this requirement.

DOL has warned employers not to delay FMLA designation. In a Sept. 10, 2019, opinion letter, the federal agency said employers may not delay designating leave as FMLA leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed. Last month, General Motors Co. paid $12,265 to settle charges that it improperly disciplined an employee for absences protected by the FMLA. An investigation by DOL's Wage and Hour Division determined that GM's delay in approving FMLA leave for the employee caused the worker to be suspended for missing work.

HR should ensure supervisors and managers are trained on the FMLA's requirements, including the ability to recognize requests, to know when to escalate them to HR and to avoid any statements or actions that could discourage an employee from taking leave.

¶47,127 CDC updates address COVID-19 testing for employers — PRACTICE TIP,

Written by Pamela Wolf, J.D.

July 14, 2020

On July 2 and 3, the CDC updated its website to provide information related to recommended testing for SARS-CoV-2, the virus that causes COVID-19, for five different categories of populations. The agency also provided information targeted to employers, which should be helpful across the board, whether the employer has remained open throughout the pandemic, recently reopened, or is contemplating reopening with appropriate safety measures in place.

Five testing populations. The CDC identified these five testing categories, describing the populations for which SARS-CoV-2 testing with viral tests (i.e., nucleic acid or antigen tests) is appropriate:

1. Individuals with signs or symptoms consistent with COVID-19;

2. Asymptomatic individuals with recent known or suspected exposure to control transmission;

3. Asymptomatic individuals without known or suspected exposure for early identification in special settings;

4. Individuals being tested to determine resolution of infection (i.e., test-based strategy for Discontinuation of Transmission-based Precautions, HCP Return to Work, and Discontinuation of Home Isolation); and

5. Individuals being tested for purposes of public health surveillance.

Diagnostic testing. The CDC explained that, generally, viral testing for SARS-CoV-2 is "diagnostic" when conducted among individuals with symptoms consistent with COVID-19 or among asymptomatic individuals with known or suspected recent exposure to SARS-CoV-2 to control transmission, or to determine resolution of infection.

Screening and surveillance. On the other hand, viral testing is "screening" when it is conducted among asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification, and "surveillance" when conducted among asymptomatic individuals to detect transmission hot spots or characterize disease trends.

Testing for those with signs and symptoms. As to testing individuals with signs or symptoms consistent with COVID-19, the CDC said that employers may consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) to identify employees with signs or symptoms consistent with COVID-19 before they enter a facility, in accordance with CDC’s General Business FAQs.

Immediate separation. Workers with COVID-19 symptoms should be immediately separated from other employees, customers, and visitors, and sent home or to a healthcare facility, depending on how severe their symptoms are.

Screening should be private. To prevent stigma and discrimination in the workplace, the CDC recommends that employee health screenings be made as private as possible. Consistent with CDC’s recommendations, workers with COVID-19 symptoms should be referred to a healthcare provider for evaluation and potential testing. Preferably, the test results should be received before the worker returns in order to keep potentially infected workers out of the workplace.

Flexible sick leave and supportive policies. The CDC encouraged employers to implement flexible sick leave and supportive policies and practices as part of a comprehensive approach to prevent and reduce transmission among employees. Here the agency pointed to the Families First Coronavirus Response Act and its requirements.

Positive tests. The agency reminded employers that positive test results using a viral test means that the employee has COVID-19 and should not come to work, but instead should isolate at home. Decisions to discontinue home isolation for workers with COVID-19 and allow them to return to work may follow either a symptom-based, time-based, or a test-based strategy.

Asymptomatic with known or suspected exposure. Where a person is asymptomatic but has had recent known or suspected exposure, to control transmission, the case investigation is typically initiated when a health department receives a lab report of a positive viral test result or a healthcare provider report of a patient with a confirmed or probable diagnosis.

Close contacts. The CDC recommends viral testing for all close contacts of persons with COVID-19. Because of the potential for asymptomatic and pre-symptomatic transmission, it is important that individuals exposed to people with known or suspected COVID-19 be quickly identified and quarantined. Here, the CDC encouraged employers to work with public health departments investigating cases of COVID-19 and tracing contacts to help reduce the spread in their workplaces and communities.

Serial testing. The agency noted that because there may be a delay between the time of the person’s exposure and the time that the virus can be detected by testing, early testing after exposure at a single time point may miss many infections. Testing repeated at different points in time (serial testing) may be more likely to detect infection among close contacts of a COVID-19 case than testing done at a single point in time.

Other preventative measures. Even where close contacts are monitored with serial testing, it is critical that other preventive measures are strictly adhered to, including social distancing, wearing cloth face coverings for source control where the hazard assessment concludes they do not require personal protective equipment, such as a respirator or medical facemask for protection, and practicing hand hygiene.

Collaborating with health department. The CDC also suggested considering testing for possible close contacts of persons diagnosed with COVID-19 in collaboration with the local health department, where resources permit. A risk-based approach to testing possible contacts of a person with confirmed COVID-19 may be applied. This approach would take into consideration the likelihood of exposure, which is affected by the characteristics of the workplace, and the results of contact investigations.

Broader testing. Broader testing (beyond individually identified close contacts to those who are possible close contacts), may be considering in some settings to control workplace transmission, such as targeting workers who worked in the same area and during the same shift. Here, the rationale is that identification of contacts may be imprecise.

High-risk settings. The CDC pointed to high-risk settings that have demonstrated potential for rapid and widespread dissemination of

SARS-CoV-2

Workplaces where employees live in congregate settings (e.g., fishing vessels, offshore oil platforms, farmworker housing, or wildland firefighter camps); and

Workplaces with populations at risk for severe illness if they are infected, such as nursing homes.

Asymptomatic without known or suspected exposure. Turning to testing of individuals who are asymptomatic without known or suspected exposure to the virus, the CDC said that viral testing may be useful to detect COVID-19 early and stop transmission quickly, particularly in areas with moderate to substantial community transmission In those areas, workplace settings for which these approaches may be considered include:

Workplaces where physical distancing is difficult and workers are in close contact (within six feet for 15 minutes or more) with coworkers or the public;

Workplaces in remote settings where medical evaluation or treatment may be delayed;

Workplaces where continuity of operations is a high priority (e.g., critical infrastructure sectors); and

Workplaces providing congregate housing for employees (e.g. fishing vessels, offshore oil platforms, farmworker housing, or wildland firefighter camps).

Testing approaches. Here the approaches may include initial testing of all workersbefore entering a workplace, periodic testing of workers at regular intervals, and/or targeted testing of new workers or those returning from a prolonged absence.

These factors may be helpful in determining the interval for periodic testing:

The availability of testing;
The latency between exposure and development of a positive viral test;
Businesses that fall into one of the workplace categories described above;
The rate or change in rate of people getting infected in the surrounding community;
The number of employees who tested positive during previous rounds of testing; and

Relevant experience with workplace outbreaks

Before testing a large group of asymptomatic workers without known or suspected exposure, employers should have a plan in place for how they will modify operations based on test results and manage a higher risk of false positive results in a low-prevalence population.

Determining resolution of infection. As to testing conducted to determine resolution of infection, the CDC said that the decision to discontinue home isolation and return to work for employees with suspected or confirmed COVID-19 should be made in the context of local circumstances. Options include a symptom-based (time-since-illness-onset and time-since-recovery strategy), time-based, or a test-based strategy. The agency also noted that viral tests have detected viral RNA in some people’s respiratory samples after they have recovered from COVID-19. The determination of which strategy to use should be made in consultation with healthcare providers and public health professionals.

Health provider documentation. The CDC reminded employers that under the ADA, they are permitted to require a healthcare provider’s note to verify that employees are healthy and able to return to work. But, practically speaking, healthcare provider offices and medical facilities may be extremely busy during periods of community transmission and may not be able to provide documentation in a timely manner. In those cases, employers should consider not requiring a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. The agency observed that most people with COVID-19 have mild illness, can recover at home without medical care, and can follow CDC recommendations to determine when to discontinue home isolation and return to work.

Public health surveillance. Turning to public health surveillance, which is conducted to detect transmission hot spots, or to better understand disease trends in a workplace, the CDC said these goals are consistent with employer-based occupational medicine surveillance programs. These programs may use testing to assess:

The burden of SARS-CoV-2 in the workforce;

Assess factors that place employees at risk for workplace acquisition of SARS-CoV-2; or

Evaluate the effectiveness of workplace infection control programs.

The CDC said that surveillance should only be undertaken when the results have a reasonable likelihood of benefiting workers.

Source: Written by Pamela Wolf, J.D.

¶47,128 Proposed regulations would allow grandfathered plans to make some cost-sharing changes without losing status — AGENCY REGULATION,

July 14, 2020

From GEA's HR answers now

The Departments of the Treasury, Labor, and Health and Human Services have jointly issued proposed amendments to the grandfathered plan status regulations under the Patient Protection and Affordable Care Act (ACA). The changes are designed to provide greater flexibility for grandfathered health plans to make changes to certain types of cost-sharing requirements without causing a loss of grandfather status. There is an unusually short 30-day comment period. The regulations are scheduled to be published in the Federal Register on July 15, 2020.

The amendments would apply to grandfathered group health plans and grandfathered group health insurance coverage beginning 30 days after the publication of any final rules. The changes would apply only to group health plans and coverage, not individual plans.

Grandfathered plans. Grandfathered health plans are subject to certain, but not all, provisions of the ACA for as long as they maintain their status as grandfathered health plans. For example, grandfathered health plans are subject neither to the requirement to cover certain preventive services without cost sharing, nor to the annual limitation on cost sharing. If a plan were to lose its grandfather status, it would be required to comply with both provisions, in addition to several other requirements.

There are six types of changes (measured from March 23, 2010) that will cause a group health plan or health insurance coverage to cease to be grandfathered:

(1) elimination of all or substantially all benefits to diagnose or treat a particular condition;

(2) any increase in a percentage cost-sharing requirement (such as coinsurance);

(3) any increase in a fixed-amount cost-sharing requirement (other than a copayment) (such as a deductible or out-of-pocket maximum) that exceeds certain thresholds;

(4) any increase in a fixed-amount copayment that exceeds certain thresholds;

(5) any decrease in contribution rate by an employer or employee organization toward the cost of coverage by more than five percentage points below the contribution rate for the coverage period that includes March 23, 2010; or

(6) the imposition of annual limits on the dollar value of all benefits for group health plans and insurance coverage that did not impose such a limit prior to March 23, 2010.

The Departments were told to make things easier for employers to keep their grandfathered plans in compliance. The Departments took this seriously, but took care to do things that did not compromise the overall regulatory scheme. So, for example, they did not provide a route to allow grandfathered plans to regain lost their status. They also did not change the rules for the percentage requirements since that is obviously a change.

The Departments instead focused on changes in fixed dollar amounts because it is not obvious there is one way to account for inflation. They also took seriously the concern over high deductible health plans that have to comply with Code Sec. 223 inflation adjustments. Although it has not been a problem, it is reasonable that plans have assurance it will not be in the future.

With respect to fixed-amount cost-sharing requirements other than copayments, a plan or coverage ceases to be a grandfathered health plan if there is an increase, since March 23, 2010, that is greater than the maximum percentage increase. For fixed-amount copayments, a plan or coverage ceases to be a grandfathered health plan if there is an increase, since March 23, 2010, in the copayment that exceeds the greater of (1) the maximum percentage increase or (2) five dollars increased by medical inflation.

Maximum percentage increase. The existing rules define the maximum percentage increase as medical inflation (from March 23, 2010) plus 15 percentage points. For this purpose, medical inflation is defined by reference to the overall medical care component of the Consumer Price Index for All Urban Consumers, unadjusted (CPI-U), published by the Department of Labor using the 1982–1984 base of 100.

Some commenters noted that the methodology used to calculate the "premium adjustment percentage" (as defined in 45 CFR 156.130) would be more appropriate inflation adjuster because it is tied to the increase in premiums for health insurance and, therefore, better reflects the increase in costs for health coverage. Relying on the premium adjustment percentage would also be consistent with the methodology used to adjust the annual limitation on cost sharing that applies to non-grandfathered plans.

The proposed rules include an amended definition of "maximum percentage increase" that provides an alternative standard that relies on the premium adjustment percentage rather than medical inflation (which continues to be defined, for purposes of these rules, as the overall medical care component of the Consumer Price Index for All Urban Consumers, unadjusted), to account for changes in healthcare costs over time.

This alternative standard would not supplant the current standard. Rather, it would be available to the extent it yields a greater result than the current standard, and it would apply only with respect to increases in fixed-amount cost-sharing requirements that are made effective on or after the effective date of the final rule.

High deductible health plans (HDHPs). The proposed rules would specify that grandfathered group health plans and grandfathered group health insurance coverage that are HDHPs may make changes to fixed-amount cost-sharing requirements that would otherwise cause a loss of grandfather status without causing a loss of grandfather status, but only to the extent those changes are necessary to comply with the requirements for HDHPs under Code Sec. 223(c)(2).

The proposed regulations include the following example. A group health plan that is a grandfathered health plan and also an HDHP under Code Sec. 223(c)(2) had a $2,400 deductible for family coverage on March 23, 2010. The plan is subsequently amended after the effective date of final rule to increase the deductible limit by the amount necessary to comply with the requirements to qualify as an HDHP, but that exceeds the maximum percentage increase. The increase in the deductible at that time does not cause the plan to cease to be a grandfathered health plan because the increase was necessary for the plan to continue to satisfy the definition of an HDHP.

The preamble notes that the annual cost-of-living adjustment to the required minimum deductible for an HDHP has not yet exceeded the maximum percentage increase that would cause an HDHP to lose grandfather status. Nevertheless, the Departments believe there is value in providing assurance to grandfathered plans that are HDHPs that required increases would not cause the plan or coverage to relinquish its grandfather status.

SOURCE: NPRM, REG-130081-19.

¶47,125 IRS guidance addresses reporting on qualified sick leave and family leave wages — AGENCY GUIDANCE,

July 13, 2020

from GEA's HR answers now

The IRS has released guidance to employers in connection with the requirement to report the amount of qualified sick and family leave wages paid to employees under the Families First Coronavirus Response Act (Families First Act). Employers are required to report these amounts either on Form W-2, Box 14, or on a separate statement. This required reporting provides employees who are also self-employed with information necessary for properly claiming qualified sick leave equivalent or qualified family leave equivalent credits under the Families First Act, the guidance notes.

Reporting qualified sick leave wages. In addition to including qualified sick leave wages in the amount of wages paid to the employee reported in Boxes 1, 3 (up to the social security wage base), and 5 of Form W-2 (or, in the case of compensation subject to the Railroad Retirement Tax Act (RRTA), in the amount of RRTA compensation paid to the employee reported in Boxes 1 and 14 of Form W-2), employers must report to the employee the following type and amount of the wages that were paid, with each amount separately reported either in Box 14 of Form W-2 or on a separate statement:

the total amount of qualified sick leave wages paid for reasons described in paragraphs (1), (2), or (3) of section 5102(a) of the Emergency Paid Sick Leave Act (EPSLA); in labeling this amount, the employer must use the following, or similar, language: "sick leave wages subject to the $511 per day limit;" and

the total amount of qualified sick leave wages paid for reasons described in paragraphs (4), (5), or (6) of section 5102(a) of the EPSLA; in labeling this amount, the employer must use the following or similar language: "sick leave wages subject to the $200 per day limit."

If a separate statement is provided and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 provided to the employee, and if the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.

Reporting qualified family leave wages. In addition to including qualified family leave wages in the amount of wages paid to the employee reported in Boxes 1, 3 (up to the social security wage base), and 5 of Form W-2 (or, in the case of compensation subject to RRTA, in the amount of RRTA compensation paid to the employee reported in Boxes 1 and 14 of Form W-2), employers must separately report to the employee the total amount of qualified family leave wages paid to the employee under the Emergency Family and Medical Leave Expansion Act (EFMLEA) either in Box 14 of Form W-2 or on a separate statement. In labeling this amount, the employer must use the following, or similar, language: "emergency family leave wages". If a separate statement is provided and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 sent to the employee, and if the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.

Reporting by self-employed individual. Self-employed individuals claiming qualified sick leave equivalent or qualified family leave equivalent credits must then report these qualified sick leave and qualified family leave wage amounts on Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals, included with their income tax returns, and reduce (but not below zero) any qualified sick leave or qualified family leave equivalent credits by the amount of these qualified leave wages.