As the Delta variant continues to spread across the United States, companies are once again having to make tough decisions. In this Forbes article, McDermott partner Michael Peregrine says corporate boards should ask their CEOs how they will respond to the pandemic’s latest development.
“At a time when most businesses were aggressively moving forward with long-stalled resiliency measures, they are countered by the equally aggressive Delta variant,” Peregrine writes.
On July 26, 2021, the California Department of Public Health (CDPH) issued a new Order that impacts healthcare and state employers in California. According to McDermott’s Michelle S. Strowhiro, Ellen M. Bronchetti and Ludia Kwon, the CDPH Order requires that almost all healthcare employers verify the vaccination status of all of their workers.
The Order also requires workers who are not fully vaccinated to go through regular COVID-19 testing at specified intervals. These facilities also must have a plan in place for tracking verified worker vaccination statuses.
Clinical laboratories continue to face challenges to obtain positive coverage decisions by government and private payers for new tests. According to McDermott+Consulting Senior Director Deborah Godes, payers require reasons to establish new coverage assays.
“[The] key to getting a positive coverage decision from payers is making a solid case through good quality evidence,” Godes notes in a recent Dark Report article. “Clinical laboratories need to demonstrate that a particular assay actually works as it is intended and also that it is used by clinicians to make decisions regarding patient care. ”
Not all payers will be persuaded by the same arguments. Each payer has its own coverage determination process, and clinical laboratories should be prepared to deal with each one individually.
“You need to determine what drives that payer’s denials and then present evidence to address those concerns,” Godes says.
Can employers offer incentives for employees to get a COVID-19 vaccine? In short, yes. Incentives may take many forms, such as a one-time bonus, a gift card or a few extra vacation hours. Employers can get creative.
According to McDermott’s Michelle S. Strowhiro, Judith Wethall and Ludia Kwon, there are two issues to consider when implementing a vaccine incentive program for purposes of complying with employment and benefits laws: the concepts of coercion and reasonable accommodation.
As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”
The US Department of Labor (DOL) recently issued guidance concerning a new exemption under the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974 (ERISA) in connection with the provision of investment advice. PTE 2020-02, Improving Investment Advice for Workers & Retirees (the Exemption), became effective on February 16, 2021. On April 13, 2021, the DOL issued additional guidance, in FAQ format, to further explain the Exemption.
In this article, McDermott’s Jennifer D. Hill, Todd A. Solomon and Brian J. Tiemann explain the significance of this new guidance.
President Biden’s July 9, 2021, Executive Order—which seeks to increase competition throughout the American economy—takes aim at prescription drug prices. In this article, published in Law360, McDermott partner Emily Jane Cook says Biden’s focus on drug prices is unsurprising given the “significant public interest and frustration” with drug costs.
As employees begin to return to their offices, human resource teams are being inundated with accommodation requests. The reasons behind these requests include:
McDermott’s Laurie Baddon says in an article published in SHRM that employers should share their policies with their workforces well in advance to give HR and legal teams time to process and assess accommodation requests.
Can employers mandate some employees get the vaccine and not others? Is there an obligation to consider requiring a COVID-19 test before coming back to work? What are the potential workers’ compensation claims relating to possible adverse reactions to a vaccine? Should employers mandate vaccinations?
In this article, McDermott partners Carole Spink, Joseph Mulherin, Kathleen Quinn and Troy Van Dongen answer common employer questions about the COVID-19 vaccine.
A recent ruling from a New Jersey federal district court gives ammunition to providers fighting to stop insurers from engaging in cross-plan offsetting, a common billing practice where health insurers attempt to claw back overpaid claim money from one patient by withholding payment from another patient in a different health plan.
The ruling—which found that the practice violates the Employee Retirement Income Security Act (ERISA)—could lead to more lawsuits and changes to plan documents. McDermott partner Judith Wethall said in a recent Bloomberg Law article the ruling was more significant than the U.S. Court of Appeals for the Eighth Circuit’s 2019 ruling in Peterson v. UnitedHealth Group, Inc.
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