Category: Labor & Employment

Time Is Money: A Quick Wage-Hour Tip on … Tracking Employee Working Time

I had planned to focus this month’s installment of “Time Is Money” on the practice of rounding timeclock entries, addressing the history behind the practice as well as factors that make rounding today a riskier proposition than it used to be.  Then, while reviewing our previous writings on the subject, I came across my colleague Mike Kun’s treatment of the topic in our July 2019 installment, where he already said pretty much everything I had to say.

Back at the drawing board, it occurred to me that rounding is part of a broader challenge that businesses face: how best to record employee working time.  Nearly every large case we handle involving non-exempt employees includes allegations that the employer hasn’t compensated workers fully for their time. Sometimes the claim is unfair rounding, other times exclusion of potentially compensable pre-shift or post-shift activity, and recently we see more employers concerned about recordkeeping in the context of remote work.

These concerns all have a common thread:  there is no risk-free way to record employee working time.  Every timekeeping system yet invented has pros and cons, with varying opportunities for cost savings or budget-breaking overruns, employee evasion, manipulation by wayward supervisors and managers, and exposure to claims in litigation that are increasingly likely to wind up as certified class or collective actions.

As with many aspects of employment law compliance, options that tend to reduce the risk of litigation also tend to cost more.  In timekeeping, that means potentially overpaying employees for their work.  And while overpaying employees can be expensive, paying lawyers—including plaintiffs’ lawyers—to address these issues in litigation can often be even more expensive.

So what’s a well-meaning, compliance-minded employer to do? Are the only choices overpaying your employees, which in many industries can put a company out of business rather quickly, or blindly trusting your employees and your supervisory staff to handle timekeeping properly, which can put an employer on a fast track to litigation?

While there are no perfect solutions, some practices have emerged that many employers see as striking an appropriate balance between cost and litigation risk:

  1. Consider eliminating rounding.

Our 2019 post covered this topic well, and we won’t restate it all here. But increasingly, employers are moving away from rounding in order to save themselves the inconvenience and expense of litigation it tends to invite.

  1. Give more thought to the number and placement of timeclocks.

Many employers with physically large workspaces, such as factories, casinos, and hotels, have employees clock in at a central location before walking several minutes to their work area.  These employees then finish their shifts and walk several minutes to clock out for the day. Several minutes a day, every day, for hundreds or thousands of workers quickly adds up to a lot of money in wages for unproductive and potentially noncompensable time.

What if the employees had the ability to clock in much closer to their work area?  Depending on the employer’s timekeeping system, this may require purchasing more time clocks, but the potential savings from not having to pay for unproductive walking time at the start and end of shifts could quickly pay for the additional time clocks.  If employees engage in compensable donning or doffing away from their work area, placing time clocks by their changing areas serve the same goal: paying for all time the law regards as compensable, while not paying for lengthy pre-shift or post-shift walking to and from the time clock.

In work environments like call centers, where the employees are normally unable to perform compensable work away from their workstation and issues arise regarding time spent booting up, logging in, and loading applications, many employers have moved toward having employees clock in and out as they enter or leave the call center floor.  That approach may result in paying employees for an extra two or three minutes on either end of the shift, but it spares employers the common allegation in lawsuits that it took employees five, ten, or even more minutes to get their computer ready at the start of the shift or to close out at the end of the day.

There is no single correct answer that fits all workplaces, but by giving some thought to how many time clocks an employer has and where to place them, there may be opportunities to make time records more accurately reflect the compensable activity the workers perform.

  1. Provide employees an avenue for reporting time worked outside of the normal routine.

Things happen that render employee time records inaccurate or incomplete. Employees forget to clock in or out. Situations arise after hours. Employees may interact with their supervisors before or after shifts. The key to achieving compliance is to be sure that the employees have—and know about—a way to correct errors or to record working time not already reflected in the timekeeping system. These corrections may involve the supervisor in the first instance, or the employee may have the ability to make changes or to include new or additional time entries directly. If your timekeeping system recognizes only those activities that occur between in-punches and out-punches, you may be failing to capture the full scope of your employees’ compensable working time.

  1. Consider requiring creation of an auditable record whenever a supervisor or manager changes an employee’s time entry.

Time shaving by supervisors and managers continues to be a common claim in litigation, often tied to the assertion that these individuals alter their workers’ time records in order to reduce or to eliminate overtime.  One important way to prevent time shaving and reduce the likelihood of such claims is to require the timekeeping system to record the identity of any person who changes a time record, along with a short statement of the reason for each change. In addition, periodic auditing of changes to time records can help identify patterns of abnormal adjustments by certain supervisors or managers.

Devoting some time and attention to these timekeeping issues can go a long way toward reducing the likelihood that you will face litigation down the road.  Once you establish practices that work best for your business, you will want to follow up with periodic training so that your non-exempt employees and their supervisors and managers clearly understand your policies and expectations.  Your compliance will very likely improve, and you will probably save money in the long run.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Paul DeCamp of Epstein Becker & Green, P.C.
For more articles on tracking employee time, visit the NLR Labor & Employment section.

It’s Time Again for Employers to Ensure Handbook Compliance

It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.

Confidentiality Policies

Confidentiality policies can serve many purposes but primarily are in place as a means of protecting sensitive and proprietary information from disclosure to competitors and the general public. However, a primary function of the NLRA is to provide employees the right to disclose the terms and conditions of their employment with each other and third parties, including unions. Protected disclosures can include wage and benefit information, disciplinary history, and progress reports—information that often finds itself within the ambit of a confidentiality policy. As recent ALJ decisions have confirmed, confidentiality policies can interfere with employee rights under the NLRA when they are not sufficiently limited in scope and do not exclude from coverage employee communications and disclosures for protected purposes.

Social Media Policies

Social media policies can be useful tools to establish an employer’s expectations regarding employees’ public statements and help protect the employer’s reputation. However, the NLRA generally prohibits employers from restricting or attempting to control the content of employees’ public statements, unless such restrictions or controls tend to require adherence to basic standards of civility or serve legitimate business justifications. This year the NLRB has found that an employer’s business justifications are served by a social media policy that prohibits the sharing of general confidential information, speaking on behalf of the employer, and making disparaging statements. However, it is unclear whether the NLRB will hold course in the new political climate. As such, employers should consider adopting narrowly tailored social media policies—such as policies that prohibit unlawful conduct like discriminatory statements, defamation, and the disclosure of confidential information (defined to exclude information concerning the terms and conditions of employment)—to mitigate the risk that their policies interfere with employees’ rights under the NLRA.

Solicitation/Distribution Policies

Solicitation/distribution policies can promote employee safety and protect productivity by establishing parameters on when and where employees can solicit fellow employees for non-work related purposes or distribute non-work related literature. While these policies can reduce on-the-job distractions and contentious employee interactions, they must be carefully drafted to ensure they do not interfere with employees’ rights to engage in concerted activity protected by the NLRA.

While the NLRA does not require employers to allow employees to solicit other employees or make distributions during working time, or in active work areas, it does require employers to allow employees to engage in certain solicitations/distributions when employees are not working (for example, during break times) and in areas where work is not being performed (for example, in lunch rooms). Accordingly, employers should avoid introducing broad solicitation/distribution policies that prohibit non-work related solicitations/distributions generally, and should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions during non-work time and in non-work areas. Further, employers should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions in work areas when such are not active work areas.

Employee handbook policies are important tools to establish the expectations of the employer-employee relationship. However, these tools can often be used against employers if they are not carefully prepared to ensure compliance with the NLRA and the many other federal, state, and local laws that affect the employment relationship. Accordingly, employers should consider revisiting their employee handbooks with the assistance of labor and employment counsel to mitigate the risk that their employment policies conflict with applicable laws.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.
For more articles on handbook compliance, visit the NLR Labor & Employment section.

COVID-19: An Employer’s Role in Vaccination

As cases of the 2019 novel coronavirus (COVID-19) decrease and availability of the COVID-19 vaccine becomes more prevalent, employers face the daunting task of creating safe return to work plans. These plans often involve encouraging COVID-19 vaccination and, in some cases, mandating vaccination before employees may return to in-person work.

EMPLOYERS CAN MANDATE A COVID-19 VACCINE

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying that employers are lawfully permitted to require employees to be vaccinated before returning to work, subject to several exceptions.

These exceptions include:

1. Disability considerations

EEOC guidance reiterates an employer’s obligation to accommodate employees who have disabilities that would otherwise interfere with an employee receiving the COVID-19 vaccination. Under these circumstances, an employer may have to exempt such an employee from the vaccine mandate. Examples of such disabilities could include a history of allergic reaction to vaccine ingredients, or an employee who is pregnant or nursing and has been advised against vaccination by a doctor.

Notably, the EEOC acknowledged that under these circumstances an employer may deny a disability-related accommodation where there is no available alternative that would alleviate the “direct threat” posed by an unvaccinated employee. A direct threat is one that poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers must conduct an individualized assessment to determine whether a direct threat exists, taking into consideration:

  1. The duration of the risk
  2. The nature and severity of the potential harm
  3. The likelihood that the potential harm will occur
  4. The imminence of the potential harm

If such a threat is deemed to exist, the employer may be able to exclude the employee from the workplace but may need to provide an alternative accommodation, such as a remote work arrangement. Furthermore, because current guidance from the Centers for Disease Control and Prevention (CDC), recommends the ongoing use of personal protective equipment, health checks, masks and social distancing, employers may be able to accommodate unvaccinated employees within the workplace. As requirements for masking and distancing are lifted, the “direct threat” assessment will evolve.

2. Religious accommodations

Employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy. Like medical accommodations, an employer who knows that a sincerely held religious belief, practice or observance prevents the employee from receiving a vaccination must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer. Notably, having an “anti-vax” belief alone is not sufficient. The belief must be grounded in religion to qualify for protection.

Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.

The EEOC sagely advises that managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability or sincerely held religious belief and know to whom the request should be referred for consideration.

3. Mandatory vaccination policies trigger additional obligations under the ADA and other laws

The Americans with Disabilities Act (ADA) generally restricts employers’ ability to conduct medical examinations and request medical information from employees. However, the EEOC has specific guidance that clarifies that the COVID-19 vaccination itself is not a medical examination. Employers must use caution, though, as the EEOC also states that an employer’s use of pre-screening questions that ask whether the employee has been vaccinated may inadvertently constitute a disability-related inquiry. The guidance notes that employers can avoid any issues regarding disability-related inquiries if they require employees to be vaccinated by their own medical providers or encourage, but do not require, employees to be vaccinated.

If vaccination is mandated, federal law requires that employees be paid for the time spent waiting for and receiving the vaccine. Unionized employers may also consider their collective bargaining agreements when establishing a mandatory vaccination policy.

ENCOURAGING BUT NOT REQUIRING VACCINATION

Many employers are currently encouraging but not requiring vaccinations. This is especially the case in jurisdictions where vaccinations are not available to all adults. A policy of encouragement relieves the employer of the obligation to conduct disability and religious related accommodation analyses. Nevertheless, if employers offer incentives to employees to get vaccinated, like additional paid time off, gift cards, etc., accommodations may need to be made for those employees who are not eligible for the incentive due to a disability or religious belief that prevents them for receiving the vaccine.

Notably, an employer can ask or require employees to show proof of receipt of a COVID-19 vaccination. The EEOC has clearly stated this such a request is not a disability-related inquiry subject to the ADA’s restrictions. There are many reasons why employers would seek this information as they plan for return to “normal” business practices, including re-instituting in-person meetings, travel requirements, etc. In the meantime, such information will also assist employers in addressing quarantine requirements in the case of a workplace exposure. Interim CDC guidance from March 8, 2021, makes clear that vaccinated, asymptomatic employees do not have to quarantine or test after a known exposure.

PLANNING FOR A RETURN TO IN-PERSON WORK

Whether or not an employer elects to mandate vaccines now, it is advisable for employers to communicate with their workforce on their proposed strategy and expectations with respect to vaccinations. Employers should also keep in mind that they can change their vaccination policy in the future, converting from a non-mandatory policy to a mandatory one if warranted for the particular workforce.

Copyright © 2020 Godfrey & Kahn S.C.

ARTICLE BY Margaret R. Kurlinski of Godfrey & Kahn S.C.
For more articles on COVID-19 vaccinations, visit the NLR Coronavirus News section.

NLRB Paves the Way for Graduate Student Unions

The March 15, 2021 Federal Register contained an unwelcome surprise for private colleges and universities. The National Labor Relations Board (NLRB) announced that it is withdrawing a proposed rule published last September that, if adopted, would have classified graduate students who are compensated in connection with their studies as non-employees.

The history behind the Board’s proposed “graduate student rule” is well-known. In a 2016 case captioned Columbia University, 346 NLRB No. 90, the Board ruled that graduate students are employees and therefore have the right to organize and bargain collectively. Obviously, this was a case of great significance in the higher education community.

By proposing the “graduate student rule” in September 2020, the Board sought to give blanket protection to private colleges and universities. Had the rule been adopted, these institutions could still have voluntarily recognized and bargained with graduate student unions. But, since the graduate students would have been non-employees, the colleges and universities would not have had a duty to recognize and bargain with graduate student unions.

With the rule withdrawal, the stage is set for graduate student unions

It is reasonable to expect that the withdrawal of the “graduate student rule” will reinvigorate the movement among graduate students to unionize. Indeed, graduate students at Northwestern University have already issued a statement that they expect this development to bolster their organizing efforts.

The consequences of this shift in the Board’s approach regarding higher education are potentially far-reaching. Where the duty to bargain exists, the right to strike also exists (unless the union bargains that right away at the table). The prospect of the “graduate student rule” being adopted acted like a brake on graduate students’ bargaining expectations.  Now they can be much more confident. For instance, graduate students at Columbia University who are planning to strike have lauded the decision to withdraw the “graduate student rule” and commented that it could not have come at a more opportune time.

Prepare now

Lastly, the withdrawal of the “graduate student rule” is expected to be just the first of many changes, both regulatory and legislative, aimed at strengthening unions’ ability to organize. Whether or not they are aware of this, many colleges and universities have an urgent need to assess management policies and practices, as well as campus culture, in order to prepare for possible organizing efforts.

© Steptoe & Johnson PLLC. All Rights Reserved.

ARTICLE BY John R. Merinar, Jr. of Steptoe & Johnson PLLC
For more articles on the NLRB, visit the NLR Labor & Employment section.

American Rescue Plan Act of 2021: COBRA Subsidy, Pension Funding, and Other Employee Benefit Changes

The American Rescue Plan Act of 2021 (ARPA) is the latest federal COVID-19 relief bill, which the President signed into law March 11, 2021. ARPA includes new COBRA continuation coverage election, notice, and subsidy requirements; pension plan funding relief; and some cost-saving benefit opportunities employees may be able to leverage.  Some of these changes are required and could take effect as early as April 1, 2021, requiring immediate action by employers (or their insurers or administrators).  Other provisions are optional, enabling employers to weigh the costs and benefits in considering their implementation.   This is the first of a series of articles addressing the important employee benefit changes under ARPA, including employer tax credits, executive compensation changes, and multiemployer funding relief.

COBRA Premium Subsidies:  Fulfilling a commitment of the Biden Administration, ARPA includes COBRA subsidy provisions aimed at making health insurance coverage accessible and affordable.  Bearing a striking resemblance to the American Recovery and Reinvestment Act of 2009, ARPA creates a 6-month subsidy period (April 1 to September 30, 2021) during which certain “assistance eligible individuals” (AEI) may qualify for a 100% subsidy for COBRA coverage.  Qualifying AEI would pay no cost for monthly COBRA premiums for medical, dental, or vision coverage if the individual is eligible for COBRA coverage during the subsidy period.  The subsidy period does not extend the maximum COBRA coverage period.  ARPA simply suspends the AEI’s obligation to make COBRA premium payments for up to 6 months.

These rules are not optional for employer sponsored group health plans.  All group health plans subject to COBRA, except health flexible spending accounts (FSA), must provide this subsidized coverage.

The employer, plan (in the case of a multiemployer plan), or insurer (for fully insured coverage), has an obligation to provide subsidized COBRA coverage and pay or incur the AEI’s COBRA premium cost.  But that entity may recover the cost of the coverage from the federal government by claiming a credit against its quarterly Medicare payroll tax liability.  The credit can be advanced and is refundable, meaning the entity could claim a refund if the subsidy paid exceeds the taxes due.

Only those qualified beneficiaries who trigger COBRA continuation coverage because of an involuntary termination of employment or a reduction in hours and whose current COBRA continuation coverage period would cover some or all of the subsidy period are considered AEI, but only if they elect COBRA coverage.  Individuals who qualify for COBRA because of voluntary termination, retirement, or death would not be considered AEI.

ARPA also creates an extended COBRA election period for AEI so even AEI who previously declined COBRA coverage, or whose coverage was terminated because of nonpayment of premiums, may enroll and receive the subsidized coverage for the length of the subsidy period.  This provision in particular will require careful administration to ensure compliance, given the previous COBRA deadline extensions and the recent re-starting of the clock, which we discuss here and here. ARPA does not change the fact that COBRA continuation coverage still can end because of other group health coverage, Medicare eligibility, and other circumstances.

ARPA imposes new notice requirements on group health plans, which provide AEI with the information they need to enroll in subsidized coverage.  There is a required notice of the availability of the subsidy, a notice of the extended election period for COBRA coverage, and a notice of the expiration of the subsidy.  The U.S. Department of Labor will issue model notices that plan administrators may use.

Group health plans may, but are not required to, allow AEI to enroll in different coverage options available from the employer, subject to certain conditions.  If offered, the notices would need to describe this option.

Affordable Care Act Premium Tax Credit Expansion:  Following the coverage theme noted above, ARPA also expands eligibility for Premium Tax Credits (PTCs) under Internal Revenue Code Section 36B.  These PTCs, which are part of the Affordable Care Act (ACA), make securing coverage through the Healthcare Marketplace or other state exchange more affordable.  Generally, the changes temporarily eliminate the phaseout of eligibility for households over 400% of the federal poverty level, reduce the contributions eligible households must make toward the premium cost, suspend the recapture of excess credits previously provided, and consider anyone who receives unemployment compensation during any week in 2021 as eligible.

For employers, this may mean more “full-time” employees claim the PTCs, which correspondingly may lead to greater scrutiny of employers’ ACA compliance by the IRS and a shift in employer group health plan enrollment.  This may increase the pool of individuals who qualify for subsidized coverage, a key trigger for employer shared responsibility penalties under the ACA. We recommend employers review and confirm their ACA compliance and reporting regularly to understand penalty risk and exposure, especially because of this change.

Increase in Dependent Care Assistance:  For the 2021 calendar year only, ARPA increases from $5,000 to $10,500 (from $2,500 to $5,250 in the case of a separate return filed by a married individual) the maximum amount that can be excluded from income under Section 129 of the tax code for qualifying dependent care expenses.  Employers who sponsor dependent care flexible spending arrangements may amend their plans on or before the last day of the plan year to allow their eligible employees to benefit from this increased limit.  Fiscal plan year sponsors will need to consider how to implement the relief given their plan year limits, noting that the increased contribution limit ends on December 31, 2021.  The Consolidated Appropriations Act, 2021, discussed here, permits employers to amend their Section 125 plans to permit mid-year election changes when the same normally would not be permitted.  That relief will need to be implemented in tandem with any increased limits allowed under ARPA.  For employers who decide not to increase the dependent care flexible spending account limit for 2021, employees still may qualify for the child and dependent care tax credit that was substantially enhanced and made refundable for 2021.

Pension Plan Funding Stabilization:  For employers who sponsor single employer defined benefit plans, ARPA provides several avenues to stabilize funding, including implementing 15-year (up from 7) amortization periods, fresh start rules, and an increase in interest rates used for minimum funding determinations.  These changes should reduce the minimum required contribution amounts, but would need to be weighed against the cost of obtaining an updated valuation, among other considerations.  Employers with these plans should consult with their plan actuaries.  As previously discussed, ARPA also includes long-awaited multiemployer funding relief.

If 2020 taught us anything, it is to be flexible and prepared for change.  Just three months into the 2021 calendar year, we now have the second substantial piece of legislation affecting the employee benefits area under our belts, and imminent implementation guidance.  This underscores how substantially the COVID-19 pandemic continues to change the value-proposition for employer provided benefits.

Jackson Lewis P.C. © 2020

ARTICLE BY  Suzanne G. Odom,  Kellie M. Thomas, Joy Napier-Joyce and  Brian M. Johnston of Jackson Lewis P.C.
For more articles on the American Rescue Plan, visit the NLR Labor & Employment section.

Declining a Shot in the Arm: What Employers Should Do When Employees Refuse Vaccines

Even before the pandemic, the Equal Employment Opportunity Commission (EEOC) and courts nationwide recognized that employees – even nurses and CNAs – had a right to refuse to take a vaccine because of a sincerely held religious belief or a medical reason. Those exceptions apply to refusals to take the COVID-19 vaccine, too. Firing or otherwise disciplining employees who have a legitimate religious exemption violates federal civil rights laws; firing or otherwise disciplining employees who have a legitimate medical exemption violates the Americans with Disabilities Act.

Remember that we are still under the vaccines’ Emergency Use Authorization (EUA) period. The EEOC has indicated that employers can require that employees get vaccinated, but the EUA statute contains some language saying that people have a right to refuse any vaccine during the EUA period. Courts have not yet decided the issue. So, there’s some legal risk for employers that choose to mandate that employees get vaccinated.

Most health care employers have decided to strongly encourage – but not require – employees to get vaccinated, partly out of concern that mandating the vaccine might lead to staffing shortages if enough employees refuse to get vaccinated and quit or are fired.

Religious Exemptions

A sincerely held religious belief has to be based upon a recognized religion’s tenets – generally, it can’t be based on a religion headed up by your brother-in-law who signed up to become a clergyman online. Employers may ask employees asserting a religious exemption what religion they belong to and other general questions. If the employee’s religion isn’t one that the employer has heard of, and doesn’t have a known opposition to vaccines, then it’s probably time to call an employment lawyer to figure out what to do next.

If it turns out that the religious exemption claim is legitimate, then the employer should talk to the employee about their ability to do everything the job requires despite not being vaccinated. For example, if the employee has been able to keep working by wearing masks and other PPE during the pandemic, then the employee can probably keep doing the job both during the remainder of the pandemic and even after the pandemic is over by continuing to wear masks and other PPE.

Medical Exemptions

A medical exemption from getting vaccinated works in the same way as a request for accommodation under the Americans with Disabilities Act. When an employee refuses to get vaccinated because of a medical reason, an employer can require the employee to have a doctor provide a letter explaining the basis for the medical exemption. Assuming the medical reason is legitimate, then the employer needs to have a talk with the employee about how it can reasonably accommodate the medical exemption from getting vaccinated in a way that allows the employee to do everything the job requires. Again, this will probably require continuing to use masks and other PPE both for the duration of the pandemic and even after the pandemic is over.

Potential Risks of Requiring Vaccines for Employees

If employers choose to require employees to get vaccinated, but employees refuse to get vaccinated for reasons other than a sincerely held religious belief or a medical reason, then employers have some choices to make.

First, there’s the legal risk if we’re still within the EUA period as noted above.

Second, there’s a practical risk. Regardless of whether we’re still in the EUA period, is a doctor actually willing to fire an employee for refusing to get vaccinated? Will enough employees refuse to get vaccinated, resulting in a staffing shortage? Health care employers should think through these issues before implementing a vaccine policy.

Lastly, be aware that some people may have legitimate fears about getting vaccinated due to completely understandable historical reasons. Health care employers are in an ideal position to explain that the vaccine is safe, but sensitivity to employees’ fears is surely called for.

Health care employers have been calling their employees “heroes” for a year now. Remember to treat them as heroes by listening to their concerns, and figuring out legal and practical solutions.

© 2020 Much Shelist, P.C.
For more, visit the NLR Labor & Employment section.

Delays at USCIS Affecting F-1 Students with Work Authorization

With delays at USCIS lockbox and service centers due to COVID-19 and an unprecedented number of applications, those seeking to apply or renew their Employment Authorization Documents (EAD) have experienced issues in commencing or continuing employment.   One class of impacted nonimmigrants is F-1 students, who may apply for work authorization after graduation, called Optional Practical Training (OPT), and if the student has graduated with a STEM degree, may apply for an additional 24 months of STEM OPT.  Below are outlined issues, USCIS responses, and other considerations for both OPT and STEM OPT EAD applications.

Initial OPT period (12 months)

Issue

For students applying for their initial 12 months of OPT, they must complete the 12 months within 14 months of the end of their program.  Due to delays from USCIS because of backlogs, the EAD applications can take several months to receipt, let alone adjudicate.  A student applying for an EAD may apply up to 90 days before, and 60 days after, their program end date, but it now takes more than 90 days to confirm receipt, and then even more time to receive an EAD, which is necessary to begin employment.

USCIS response

USCIS issued an announcement that allows for flexibilities within the 14 month OPT period.  Because of delays, USCIS will now allow the 14 months’ clock to start ticking when the EAD application (Form I-765) has been approved, and not start the clock from the program end date.  If a student receives an EAD that “shorts” them this time, they may request USCIS to issue a new EAD.  In addition, because USCIS allows 60 days after a program end date to apply for an EAD, the announcement also covers rejections of EAD applications, and the ability to refile the application if it was filed after October 1, 2020, and before May 1, 2021.  In addition, the refiles need not contain a new Form I-20.

Other Considerations

What is not addressed are current backlogs at USCIS that is delaying not only the issuance of receipt notices, but also the adjudication of EAD applications.  Even though USCIS is giving the full 12 months of OPT from the time the EAD application is filed, the delays will still affect graduates and their start dates if they cannot start without an EAD in hand.

STEM OPT Extensions

Issue

Students who graduate with a STEM degree may apply for an additional 24 months of STEM OPT.  The application can be filed up to 90 days prior to the expiration of the initial EAD period, and up to the expiration of the card.  EAD applications filed on time (prior to the expiration of the card) will be granted an automatic 180 day work authorization period.  Traditionally, if the card has expired and the 180 day automatic extension has commenced, the student and employer have confirmation the EAD application was filed timely due to the receipt notice issued by USCIS, even if the application is not yet adjudicated.  Due to delays, a student may not receive the receipt notice even after 90 days of sending in the application.

USCIS response

USCIS reminds its stakeholders that a receipt notice is not indicative of an F-1 student’s ability to remain employed.  In fact, the I-9 rules do not use the receipt notice as proof of work authorization, but dictate that the endorsed I-20 issued by the school, as well as the expired EAD, are the necessary documents to confirm work authorization.  In addition, as with the initial OPT EAD filings, USCIS will allow for refiles if the application is rejected with no penalty, if the STEM EAD extension was filed between October 1, 2020 and May 1, 2021, without requiring a new Form I-20.

Additional considerations

There is more flexibility when the application is a STEM OPT extension because of the 180 day automatic extension.  However, due to the issues of receipt issuance and adjudication, the EAD may not be issued within the additional 180 days, and there is currently no solution to that situation.

USCIS continues to show that it will modify its policies to address the ongoing COVID-19 situation and delays with the lockbox.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
For more, visit the NLR Immigration section.

“Uber drivers are workers” says UK Supreme Court

This morning, 19 February 2021, the UK Supreme Court handed down judgment on the case of Uber v Aslam [2021] UKSC 5.

In a unanimous, landmark decision, the Supreme Court agreed that Uber drivers were “workers”, not self-employed contractors, for the purposes of UK employment law. Worker status entitles drivers to (amongst other things) 5.6 weeks of paid annual leave per year and sick pay and, crucially, to be paid at least the statutory minimum wage (which can be backdated).

The Supreme Court further clarified that Uber drivers are entitled to be paid minimum wage for the entirety of the period that they are logged into the app and are ready and willing to accept trips, and not just during the periods that they are driving passengers to their destinations.

The Court emphasised that what is important is the reality of the relationship between the parties, and noted the following:

  • Uber sets the fare for its drivers’ journeys, thereby dictating how much drivers are paid for their work;
  • Uber imposes its own contractual terms on drivers who wish to work through the app;
  • drivers’ choices about whether to accept ride requests are constrained by Uber;
  • Uber exercises significant control over the way in which drivers deliver their services; and
  • Uber restricts communications between its passengers and drivers.

The impact of this decision, to Uber, its drivers and the gig economy at large, cannot be understated. Going forward, and barring legislative intervention, Uber and other businesses operating in the platform or gig economy will need to fundamentally reassess both their labour relationships and the viability of their business models in light of this morning’s judgment. How Parliament and businesses choose to respond is sure to have significant and far-reaching consequences for the shape and future of the UK economy.

© 2020 Vedder Price
For more, visit the NLR Labor & Employment section.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

In light of the COVID-19 pandemic and the urgency to administer vaccines as quickly as possible, hospitals and healthcare facilities are relying on volunteers to assist in organizing vaccine distribution. Employers may want to review their program to ensure volunteers are donating their time in a way that does not run afoul of the FLSA.

Unfortunately, no bright-line rule exists to determine whether an individual is volunteering his or her time or performing compensable work under the FLSA. Instead, this determination hinges, in large part, on the type of work performed by the individual.

If an individual is performing service that relates to commercial activities, he or she will likely be considered an employee under the FLSA, and therefore entitled to wages. For example, an individual who “volunteers” his or her time working at the hospital gift shop may be entitled to compensation under the FLSA. Further, if a volunteer performs tasks on a full-time schedule, is retained for an indefinite period, or displaces a regular employee, it is likely the FLSA would categorize this individual as an employee who should be paid wages for all hours worked.

Recently, some hospitals have been faced with situations in which employees offered to volunteer their time after their shifts to perform the same types of services they are otherwise employed to provide. For example, a nurse employed at a hospital to administer the COVID-19 vaccine to patients during her regular working hours may volunteer to continue vaccinating patients after her assigned shift. Because this is likely impermissible “volunteer” work under the FLSA, the nurse may be entitled to compensation for any hours worked after her shift.

Another similar situation would be when a retired nurse wants to assist with clinical aspects or vaccine administration on a volunteer basis. For the same reasons noted above, this may also be problematic. Employers may want to review each situation on a case-by-case basis and proceed with caution. At a minimum, the employer may want to consider the below recommendations before classifying the returning nurse as a volunteer—who will likely be working alongside paid employees performing the same tasks.

So how can hospitals and similar facilities potentially use volunteers? Some ideas that may be permissible under the FLSA include: organizing the hospital’s vaccine distribution process, including ensuring patients waiting for their vaccine are wearing masks and staying six-feet apart in a line (among other safety recommendations); helping with check-in and other administrative work; and answering questions from patients.

If permitting volunteer work, healthcare employers may want to consider asking volunteers to sign authorization or other written forms that acknowledge the volunteers are knowingly and willingly donating their time to specific tasks and that the duration of the work is temporary. This type of acknowledgment may help to verify that the volunteer and employer are aligned in terms of the work performed, their relative expectations, and the (lack of) compensation provided.

With hospitals and other healthcare distribution facilities maintaining a commitment to administer the vaccine as effectively and efficiently as possible, volunteers are a key part of this mission. Many roles may exist for volunteers that comply with the FLSA and applicable state laws. While employers may want to carefully consider each situation and take precautions, the additional assistance provided by volunteers may be worthwhile to service communities and provide a quick and seamless process to administer vaccinations. At the very least, employers may want to ensure that volunteers are receiving proper recognition and resources for their time, even if it is a simple “thank you.”

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved
ARTICLE BY John B. Brown and Jamie E. Brod of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Bias in Healthcare Algorithms

The application of artificial intelligence technologies to health care delivery, coding and population management may profoundly alter the manner in which clinicians and others interact with patients, and seek reimbursement. While on one hand, AI may promote better treatment decisions and streamline onerous coding and claims submission, there are risks associated with unintended bias that may be lurking in the algorithms. AI is trained on data. To the extent that data encodes historical bias, that bias may cause unintended errors when applied to new patients. This can result in errors in utilization management, coding, billing and healthcare delivery.

The following hypothetical illustrates the problem.

A physician practice management service organization (MSO) adopts a third-party software tool to assist its personnel in make treatment decisions for both the fee-for-service population and a Medicare Advantage population for which the MSO is at financial risk. The tool is used for both pre-authorizations and ICD diagnostic coding for Medicare Advantage patients, without the need of human coders. 

 The MSO’s compliance officer observes two issues:

  1. It appears Native American patients seeking substance abuse treatment are being approved by the MSO’s team far more frequently than other cohorts who are seeking the same care, and
  2. Since the deployment of the software, the MSO is realizing increased risk adjustment revenue attributable to a significant increase in rheumatic condition codes being identified by the AI tool.

Though the compliance officer doesn’t have any independent studies to support it, she is comfortable that the program is making appropriate substance abuse treatment and utilization management recommendations because she believes that there may be a genetic reason why Native Americans are at greater risk than others. With regard to the diagnostic coding, she:

  1. is also comfortable with the vendor’s assurances that their software is more accurate than eyes-on coding;
  2. understands that prevalence data suggests that the elderly population in the United States likely has undiagnosed rheumatic conditions; and,
  3. finds through her own investigation that anecdotally it appears that the software, while perhaps over-inclusive, is catching some diagnoses that could have been missed by the clinician alone. 

 Is the compliance officer’s comfort warranted?

The short answer is, of course, no.

There are two fundamental issues that the compliance officer needs to identify and investigate – both related to possible bias. First, is the tool authorizing unnecessary substance use disorder treatments for Native Americans, (overutilization) and at the same time not approving medically necessary treatments for other ethnicities (underutilization)? Overutilization drives health spend and can result in payment errors, and underutilization can result in improper denials, patient harm and legal exposure. The second issue relates to the AI tool potentially “finding” diagnostic codes that, while statistically supportable based on population data the vendor used in the training set, might not be supported in the MSO’s population. This error can result in submission of unsupported codes that can drive risk adjustment payment, which can carry significant legal and financial exposure.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Bradley Merrill Thompson and
Jason E. Christ of Epstein Becker & Green, P.C.
For more, visit the NLR Health Law & Managed Care section