A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.
“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.
The US Department of Labor (DOL) is casting a skeptical eye on health insurance companies’ inconsistent coverage of mental health and substance use disorder benefits. The DOL recently commenced litigation against an insurer to require mental health and substance use disorder coverage be on par with regular physical care.
In an article in Bloomberg Law, McDermott Partner Judith Wethall said employers are usually unaware about these violations. Self-funded employers typically simply accept whatever their third-party administrator (TPA) is offering.
“Sometimes a TPA does things behind the scenes that might violate mental health parity and an employer might not even know it,” Wethall said.
Many plan administrators expressed bewilderment at the Biden administration’s recent guidance to limit vaccine incentive or surcharge programs for unvaccinated plan participants. According to this SHRM article, which features insight from McDermott Partner Judith Wethall, any premium surcharges must comply with the Health Insurance Portability and Accountability Act’s (HIPPA) nondiscrimination rules. HIPPA nondiscrimination rules allow for participatory and health-contingent permissible wellness programs.
International students will have an easier time obtaining H-1B status after a federal judge ended a Trump administration regulation that made the process more difficult.
According to this Forbes article, Trump administration officials increased H-1B denial rates via memos and policies that were later ruled unlawful. McDermott Partner Paul Hughes—who represented plaintiffs in an complaint for declaratory and injunctive relief—said a Trump administration move to end H-1B via lottery violated the law.
What steps can retirement plan sponsors take to mitigate Employee Retirement Income Security Act of 1974 litigation risks? McDermott Partner Andrew Liazos presented on this topic and shared best practices during the Plan Sponsor Council of America’s National Conference.
While many of the United States’ largest corporations don’t oppose the Biden administration’s vaccine requirements for many employers, those companies say many of their questions about the administration’s rule have gone unanswered. The new rule requires employers with more than 100 employers to mandate COVID-19 vaccinations or require weekly testing of employees.
In an article published in The Hill, McDermott Partner Michelle Strowhiro said some employers may decide to scrap the testing alternative altogether.
“Administratively, it’s going to be quite burdensome for employers, especially large employers with hundreds or thousands of employees, to track weekly the testing results for employees,” Strowhiro said.
On July 19, 2021, US President Joe Biden’s administration released a proposed rule that would increase penalties for hospitals that do not comply with the Hospital Price Transparency Rule, effective January 1, 2022. According to McDermott’s Emily Jane Cook and Steven J. Schnelle, the proposed rule also provides certain potentially burdensome clarifications and requests comment on further rulemaking activity relating to the Hospital Price Transparency Rule.
The Biden administration is giving insurers more time to follow the insurer price transparency rule and the ban on surprise billing. Federal regulators will delay enforcement of machine-readable file provider rates until July 1, rather than the start of 2022. In this article published in Modern Healthcare, McDermott Partner Kate McDonald noted that the initial timeline was “very aggressive.”
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.
Long considered controversial from economic and shareholder perspectives, living wage concepts are receiving more attention in the context of economic policy, social responsibility and ESG investing. As progressive perspectives concerning income equality, and executive and employee compensation, are becoming more mainstream, corporate leaders should prepare for greater engagement in this important conversation.
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