Category: COVID-19

CDC updates COVID-19 guidance; eliminates 5-day isolation period

By Anita Byer, Setnor Byer Insurance & Risk

The latest recommendations from the Centers for Disease Control and Prevention suggest that we have entered a new phase of the COVID-19 pandemic. On March 1, 2024, the CDC officially eliminated the five-day isolation period for people with COVID-19. The CDC also adopted a unified approach to addressing risks from a range of common respiratory viral illnesses, such as COVID-19, flu, and RSV. According to the CDC, the updated recommendations reflect “the progress we have made in protecting against severe illness from COVID-19.”

While COVID-19 remains a public health threat, it is no longer the emergency that it once was. According to the CDC, there are fewer hospitalizations, complications, and deaths due to COVID-19. And, in addition to vaccines and treatments being widely available, there is a high degree of population immunity against COVID-19. The CDC estimates that 98 percent of people aged 16 years and above have antibodies against COVID-19 (14% from vaccination alone, 26% from infection alone, and 58% from both). These factors contributed to the CDC’s decision to eliminate the 5-day isolation period for people with COVID-19.

The previous COVID-19 guidance recommended a minimum isolation period of 5 days, plus a period of post-isolation precautions. The updated guidance recommends that people stay home and away from others until at least 24 hours after both their symptoms are getting better overall, and they have not had a fever (and are not using fever-reducing medication). Symptoms may include chest discomfort, chills, cough, decrease in appetite, diarrhea, fatigue (tiredness), fever or feeling feverish, headache, muscle or body aches, new loss of taste or smell, runny or stuffy nose, sneezing, sore throat, vomiting, weakness, wheezing.

Since a residual risk of COVID-19 transmission remains after the period in which people are recommended to stay home and away from others, upon resuming normal activities, people are encouraged to take enhanced precautions for the next 5 days to curb disease spread (masking, social distancing, etc.). These enhanced precautions are important to protect those most at risk for severe illness, including older adults, young children, and people with weakened immune systems (diabetics, pregnant, recently pregnant, etc.).

It is important to note that the updated guidance states that testing is an option during the 5 days of additional precautions following the “stay home” period. CDC guidance throughout the pandemic recognized that repeated testing through the course of illness is not practical for many people.

For a summary of the updated recommendations, check out the CDC’s Respiratory Virus Guidance Snapshot.

Please contact us to learn more about insuring against pandemic-related risks.

COVID national emergency ends, COBRA says what?

By Anita Byer, Setnor Byer Insurance & Risk

The COVID national emergency is officially over. On April 10, 2023, House Joint Resolution 7 was signed into law, ending the national emergency declared back in March 2020 due to the COVID-19 pandemic. (The COVID public health emergency, which was declared separately, is scheduled to end May 11, 2023.) The end of the national emergency will have significant implications for employer-provided group health plans, particularly when it comes to dealing with the Consolidated Omnibus Budget Reconciliation Act a/k/a COBRA.

COBRA generally requires covered group health plans to provide a temporary continuation of group health coverage that would otherwise be lost due to the occurrence of certain qualifying events, like termination of employment. To give individuals more time to elect and pay for COBRA coverage during the pandemic, the Department of Labor (DOL), IRS and other federal agencies issued multiple notices stating that the following time periods and dates must be disregarded when determining COBRA deadlines:

  • the 60-day period to elect COBRA continuation coverage;
  • the 45-day period to make the initial COBRA premium payment;
  • the 30-day grace period to make monthly COBRA premium payments;
  • the date for individuals to notify the plan of a qualifying event; and
  • the date for plans to provide COBRA election notices to qualified beneficiaries.

The disregarded periods, which cannot exceed one year, are scheduled to end sixty days after the announced end of the COVID national emergency (the “Outbreak Period”). In other words, the COBRA time periods and dates were extended until one year from the date a participant or beneficiary was first eligible for relief, or the last day of the Outbreak Period, whichever is earlier. All COBRA extensions will end as of the last day of the Outbreak Period, but unfortunately, the actual date on which this is supposed to happen remains uncertain.

The uncertainty stems from the fact that the national emergency ended a month earlier than expected. The planned end date was May 11, 2023, which would have made July 10 the last day of the Outbreak Period (60 days from May 11), but things did not go according to plan. And while determining the actual end of the Outbreak Period should be simple (60 days from April 10), somehow it isn’t. You see, the DOL relied on the original plan when preparing a series of FAQs and examples to help the public navigate the end of the COBRA extensions, all of which assumed that the Outbreak Period would end July 10. Despite not being technically correct, the DOL has hinted that it plans to keep using July 10 as the last day of the Outbreak Period. Hopefully, additional guidance will be provided soon.

While the last day of our ‘COBRA extension adventure’ has yet to be determined, it is coming up fast. Affected employers should prepare in advance to avoid missteps along the way. The DOL’s FAQs are a good place to start, though some employers may require professional guidance to ensure compliance. Employers should also carry Employment Practices Liability Insurance to protect against mistakes that always seems to accompany significant legal and regulatory changes.

No one should expect the process of unwinding three years of COBRA extensions to be simple or seamless, but there is simple and obvious silver lining. Once the Outbreak Period ends, so do all the COBRA extensions. Please contact us to learn more about EPLI coverage.

New EEOC guidance limits employers’ ability to test employees for COVID-19

By Anita Byer, Setnor Byer Insurance & Risk

New guidance from the Equal Employment Opportunity Commission may limit an employer’s ability to test employees for COVID-19 going forward. This is a particularly significant development as COVID-19 transmission rates surge nationwide. On July 12, 2022, the EEOC updated a number of its Technical Assistance Questions and Answers, including those addressing reasonable accommodation, personal protective equipment and vaccinations. But what seems to be getting special attention is the EEOC’s new position regarding an employer’s ability to administer COVID-19 tests in the workplace under the Americans with Disabilities Act.

The EEOC addressed whether the ADA permits employers to administer a viral test (to detect the presence of COVID-19) when evaluating an employee’s presence in the workplace. Recall that the EEOC’s position at the outset of the pandemic was that the ADA standard for conducting medical examinations was always met for employers to conduct worksite COVID-19 viral testing. Today, the EEOC’s position is slightly different.

According to the EEOC, employers may still administer COVID-19 viral tests in the workplace, but only if the employer can show it is job-related and consistent with business necessity. Employers no longer have an absolute right to administer COVID-19 viral tests in the workplace. So, how does an employer establish business necessity?

Per the EEOC, employers use of viral testing will meet the business necessity standard when it is consistent with current guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration or state/local public health authorities. According to the EEOC, possible considerations in making the business necessity assessment may include:

  • the level of community transmission,
  • the vaccination status of employees,
  • the accuracy and speed of processing for different types of COVID-19 viral tests,
  • the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations,
  • the ease of transmissibility of the current variant(s),
  • the possible severity of illness from the current variant,
  • what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and
  • the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC also addressed antibody (serology) tests, which are used to determine prior infections. Unlike viral testing, the process for determining whether antibody testing is permissible in the workplace is much simpler. They aren’t.

According to the CDC, antibody testing may not show whether an employee has a current infection or has immunity from a prior infection or vaccination. Given these deficiencies, the EEOC has taken the position that antibody testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

The EEOC’s updated business necessity assessment for viral testing introduces a new process for employers to follow. Those wanting to commence or continue viral testing of employees in the workplace should review their current policies and procedures to ensure compliance with the EEOC’s updated guidance. To reduce the likelihood of a testing-related ADA claim, employers should proceed cautiously and consult legal counsel if necessary. Employers should also carry Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct.

Please contact us for additional information about protecting your business against employment-related claims.

Florida Issues Updated COVID-19 Guidance for Child Care Facilities

By Anita Byer, Setnor Byer Insurance & Risk

The Florida Department of Health made significant changes to its COVID-19 guidance for child care facilities. On February 24, 2022, Florida’s Governor and State Surgeon General jointly announced the new guidance as part of their “Buck the CDC” initiative. Perhaps the most notable change to Florida’s COVID-19 guidance involves the wearing of face masks.

Unlike guidance issued by the Centers for Disease Control and Prevention, Florida is no longer relying on the wearing of facial coverings in community settings, including child care facilities. According to Florida’s Department of Health, “there is not strong evidence that facial coverings reduce the transmission of respiratory viruses.” As a result, the new guidance states that the decision to wear masks inside a child care facility should be left to each child’s parent or legal guardian.

The updated guidance also includes the following COVID-19 isolation recommendations.

1) If a staff member or a child at your child care facility tests positive for COVID-19 and is symptomatic:

  • The staff member or child should stay at home and away from others for five days from the date the symptoms began (if the staff member or child is experiencing symptoms).
  • The staff member or child can return to the child care facility on day six if they have been fever-free for 24 hours and symptoms, if any, are improving.

2) If a staff member or a child at your child care facility tests positive for COVID-19 and is asymptomatic:

  • The staff member or child should stay at home and away from others for five days from the date of the COVID-19 positive test.
  • The asymptomatic staff member or child can return to the child care facility on day six.

3) If a staff member or a child at your child care facility is exposed (within 6 feet for more than 15 minutes within 24 hours) to someone with COVID-19:

  • If symptoms of COVID-19 develop, stay home.
  • If asymptomatic, the staff member or child does not need to quarantine, however, continue to monitor for symptoms for 10 days after exposure.
  • Follow the guidance in section 1 if the staff member or child tests positive for or has symptoms of the virus that causes COVID-19.

Early Learning Centers and other child care facilities should review the updated guidance carefully to determine whether or to what extent Florida’s new guidelines may affect their current COVID-19 safety protocols. Please contact us for additional information about protecting your Early Learning Center during the COVID-19 pandemic.

CDC Shortens COVID Isolation and Quarantine Periods for General Population

By Anita Byer, Setnor Byer Insurance & Risk

The Centers for Disease Control and Prevention (CDC) has shortened the recommended isolation and quarantine periods for anyone in the general public who is exposed to COVID-19. This change was motivated by data that shows most transmission occurs early in the course of illness, generally 1-2 days prior to the onset of symptoms and 2-3 days after. As a result, the recommended isolation and quarantine periods have been significantly reduced for some and eliminated for others.

Quarantine. The CDC recommends quarantine when you have been in close contact with someone who has COVID-19. Close contact occurs when you are less than 6 feet away from an infected person for a cumulative total of 15 minutes or more over a 24-hour period. Under the CDC’s new guidelines, if you were exposed to COVID-19 and are NOT up-to-date on your vaccination, you should:

  • Quarantine for at least 5 full days. (The date of exposure is considered Day Zero. Day 1 is the first full day after your last contact with a person who has had COVID-19.)
  • Wear a well-fitted mask if you must be around others in your home.
  • Get tested at least 5 days after you last had close contact with someone with COVID-19.

After quarantine, watch for symptoms until 10 days after you last had close contact with someone with COVID-19. If you develop symptoms, isolate immediately and get tested. The CDC also recommends taking precautions until day 10, such as wearing a mask when around others, avoiding travel and staying away from people who are at high risk.

If you are up-to-date with COVID-19 vaccinations or had confirmed COVID-19 within the past 90 days, you do NOT need to quarantine unless you develop symptoms. Watch for symptoms until 10 days after you last had close contact with someone with COVID-19 and take precautions. Even if you don’t develop symptoms, the CDC recommends getting tested at least 5 days after you last had close contact with someone with COVID-19.

Isolation. Under the CDC’s new guidance, anyone who tests positive or has symptoms should isolate for 5 full days, regardless of vaccination status. Isolation may end after five days if you are fever-free for 24 hours (without the use of fever-reducing medication) and your symptoms are improving. The CDC recommends taking precautions (mask, avoiding travel, etc.) until day 10.

It’s important to note that this guidance applies to the general population in the community, including workplaces and K-12 schools. Separate guidance applies to healthcare settings, correctional institutions and homeless shelters. It’s also important to remain current because the CDC is continually updating its guidance and recommendations based on new data and recent developments.

EEOC Updates COVID Guidance to Address Pandemic-Related Workplace Retaliation

By Anita Byer, Setnor Byer Insurance & Risk

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to address retaliation in pandemic-related employment situations. This was prompted in part by the fact that retaliation has been the most frequently alleged form of discrimination for many years. According to EEOC Chair Charlotte Burrows, the update “provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.”

The anti-retaliation updates apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Though the laws remain the same, the updated technical assistance communicates the EEOC’s position when it comes to COVID-related retaliation claims. The EEOC notes that retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal or temporary. They also apply to job applicants and to former employees (such as when an employer provides a job reference).

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as reporting or resisting EEO violations, filing a charge of discrimination or requesting an accommodation. Depending on the facts, unlawful retaliation can include:

  • denial of promotion or job benefits;
  • non-hire;
  • suspension or discharge;
  • work-related threats or warnings;
  • negative or lowered evaluations; or
  • transfers to less desirable work or work locations.

Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights. However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

The EEOC notes that engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  This would include non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity, like an accommodation request.

To reduce the likelihood of claims, employers should proceed cautiously when presented with any COVID-19-related matter. This may include seeking counsel from a licensed professional. Employers need Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct. Why? The EEOC is watching and offending employers are paying.

Please contact us for additional information about protecting your business during the COVID-19 pandemic.

OSHA Imposes Mandatory COVID-19 Vaccination and Testing Policy on Employers with 100+ Employees

By Anita Byer, Setnor Byer Insurance & Risk

The Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) to reduce the spread of COVID-19 in the workplace. It generally requires private employers with 100 or more employees (covered employers) to develop, implement and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers can adopt a policy requiring employees to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS is effective as of November 5, 2021, but covered employers have thirty days to comply with most of its provisions.

In addition to implementing a COVID-19 vaccination / testing policy, covered employers must:

  • Determine each employee’s vaccination status, obtain proof of vaccination and maintain records (and a roster) of each employee’s vaccination status.
  • Provide reasonable time (up to 4 hours) for employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects.
  • Ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to provide prompt notice of a positive COVID-19 test or diagnosis.
  • Immediately remove any employee, regardless of vaccination status, who received a positive COVID-19 test or diagnosis and keep them out of the workplace until return-to-work criteria are met.
  • Require unvaccinated employees to wear a face covering when indoors or in a vehicle with another person for work purposes.
  • Provide employees with information about: the ETS and its requirements; vaccine efficacy and safety; protections against retaliation and discrimination; and criminal penalties for knowingly supplying false statements or documentation.

The ETS does not require employers to pay for testing, though some may be required to do so to comply with other laws, regulations or collective bargaining agreements. Employers are also not required to pay for face coverings. OSHA posted additional information and resources, including FAQs, policy templates and fact sheets, at COVID-19 Vaccination and Testing ETS.

This is obviously a momentous policy change with far-reaching implications. In the coming days, covered employers nationwide will be digging through the 150-page ETS (triple column, single-spaced) to learn more about its specific requirements because the devil, as always, is in the details. State governors and attorneys general are no doubt doing the same. Some have already announced their intention to oppose the ETS in court. This is just the beginning.

Novelty and uncertainty always increase the likelihood of mistakes and the need for Employment Practices Liability Insurance. Please contact us for additional information about protecting your business during the COVID-19 pandemic.

Can Employers Prevent Unvaccinated Employees from Entering the Workplace?

By Anita Byer, Setnor Byer Insurance & Risk

Many employers are struggling with how to deal with the shrinking, yet substantial number of employees who are not vaccinated for COVID-19. As infection rates increase, employers are once again forced to consider actions to maintain operations while protecting the health, safety and welfare of their employees. Some are considering policies that require all employees physically entering the workplace to be vaccinated for COVID-19. Is this legal?

According to the Equal Employment Opportunity Commission, federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. However, the EEOC stresses that it must be done in a manner that does not violate the reasonable accommodation provisions of Title VII of the Civil Rights Act and the Americans with Disabilities Act.

These laws may require an employer to provide reasonable accommodations for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice or observance. Reasonable accommodations may include requiring an unvaccinated employee entering the workplace to wear a face mask, maintain social distance from others, work a modified shift, get periodic COVID-19 tests or be given the opportunity to telework. A reasonable accommodation, however, is not required if would pose an undue hardship on business operations. Courts define “undue hardship” under Title VII as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which generally requires significant difficulty or expense.

The EEOC cautions that as with any employment policy, employers must ensure that their vaccine requirement does not have a disparate impact on employees based on a protected characteristic (race, color, religion, disability, etc.). Policies that disproportionately impact or exclude employees because of these characteristics are discriminatory and unlawful. The EEOC urges employers to recognize that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others. As a result, some employees may be more likely to be negatively impacted by a vaccination requirement.

Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Employers should also carry Employment Practices Liability Insurance to cover the high cost of defending against claims of unlawful conduct.

Please contact us if you would like to learn more about Employment Practices Liability Insurance.

This is What Businesses Need to Know About Florida’s COVID-19 ‘Vaccine Passport’ Ban

By Anita Byer, Setnor Byer Insurance & Risk

Florida’s ban on so-called COVID-19 ‘vaccine passports’ begins July 1, 2021. Unlike guidance issued by public health authorities like the Centers for Disease Control and Prevention, Florida’s ban on COVID-19 vaccine passports is mandatory, not voluntary. Those who fail to comply can be fined up to $5,000 per violation. As a result, businesses have a vested interest in knowing what they can and cannot do under Florida’s new COVID-19 vaccine documentation law.

Who is subject to the ban? The law broadly applies to most business entities in Florida, as well as educational institutions and governmental entities. It does not apply to various healthcare-related businesses, which are specifically identified in the statute.

What is a business entity? The law broadly defines business entity to include any business operating in Florida. Unless specifically excluded, any form of corporation, partnership, association, cooperative, joint venture, business trust or sole proprietorship that conducts business in this state must comply with the vaccine passport ban.

What does the law prohibit? Covered business entities “may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state.”

What does the law allow? Covered business entities are allowed to institute screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.

Does the ban extend to employees? No. The law prohibits business entities from requiring “patrons or customers” to provide vaccination documentation. Legislators could have added “employees” to the list, but they didn’t.

The law itself is short and relatively straightforward, but like most things COVID, questions remain. For example, how will potential conflicts between Florida’s ban on vaccine passports and Florida’s COVID-19 Liability Protection law be resolved? Time will tell. In the meantime, since we don’t yet know how this law will be interpreted or enforced, those who are (or may be) covered business entities should proceed with caution.

Please contact us for more information about risk management measures and insurance to protect your business against COVID-19-related liability claims.

This Is What Businesses Need To Know About Florida’s COVID-19 Liability Protection Law

Florida’s COVID-19 liability protection law should help businesses avoid baseless coronavirus-related liability claims. After all, COVID-19 taught us that it’s virtually impossible to avoid a highly-contagious virus in the midst of a global pandemic. Virus-free zones are an illusion. The risk of exposure and infection can be reduced with preventative measures, but not eliminated. Nevertheless, a growing number of businesses are being sued by plaintiffs seeking compensation for personal injuries resulting from alleged exposure to COVID-19. In response, the Florida Legislature enacted a law that provides business establishments heightened legal protections against COVID-related liability.

The law seeks to deter unfounded claims against individuals and business while allowing meritorious cases to proceed. It does this by imposing heightened proof and pleading standards on plaintiffs filing COVID-19-related claims. The statute broadly defines a “COVID-19-related claim” to include civil liability claims against a person or business entity for damages, injury or death that arise from or are related to COVID-19, regardless of how the claim is denominated or presented. (A separate statute generally applies to COVID-19 claims against health care providers.)

Under this new law, COVID-19-related claims must be commenced within one year after the cause of action accrues. If the cause of action accrued prior to March 29, 2021, the plaintiff’s deadline to file a complaint is March 29, 2022. The complaint must be pled with particularity. Specific facts and details, as opposed to general statements and conclusory allegations, are required. The plaintiff must also submit a Florida-licensed physician’s affidavit attesting, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury or death occurred as a result of the defendant’s acts or omissions. If the plaintiff fails to comply with either of these requirements, the case will be dismissed without prejudice, which means they will be given another opportunity to comply.

Once these requirements are satisfied, the court will determine whether the defendant was making a good faith effort to substantially comply with any authoritative or controlling government-issued health standards or guidance at the time of plaintiff’s alleged exposure to COVID-19. This would include guidance issued by the CDC, the Florida Department of Health, counties, cities, etc. If the court finds a good faith effort, the defendant will not be liable for any act or omission associated with the COVID-19-related claim; otherwise, the plaintiff’s case will be allowed to proceed. But to win, the plaintiff must prove by clear and convincing evidence that the defendant’s conduct was grossly negligent, meaning that the likelihood of injury was known by the defendant to be imminent. Otherwise, the plaintiff will lose and the defendant will not be liable.

The broadest protections afforded by this law are reserved for those making a good faith effort to substantially comply with authoritative COVID-19 guidance. This should encourage businesses to implement reasonable and recommended preventative measures to reduce the risk of exposure and infection. Remember, businesses are not immune from COVID-19-related claims. If a plaintiff can satisfy the statute’s heightened pleading requirement (particularity), elevated burden of proof (clear and convincing evidence) and stricter standard or care (gross negligence), your business may be held liable.

Please contact us for more information about risk management measures and insurance to protect your business against COVID-19-related liability claims.