Benefit & COVID-19 Updates, Week Ending May 10th

Return to Work Plans Following the COVID-19 Pandemic May 5, 2020 – McGriff Insurance Services Excerpt: “Echoing the sentiments of public health officials, a return to normalcy won’t be like flipping a switch, but rather a gradual effort. In preparation for reopening your business and asking employees to come back to work, it’s imperative that your company thoughtfully constructs a return to work plan for its employees to keep everyone healthy and safe following the COVID-19 pandemic.” Getting The Workforce Back to Work May 5, 2020 – McGriff Insurance Services Excerpt: “A McGriff COVID-19 Reopening Best Practice Advisory” Dependent Care Benefits and COVID-19 Outbreak May 5, 2020 – McGriff Insurance Services Excerpt: “A dependent care assistance program (DCAP) allows employees to pay for qualifying dependent care expenses, such as day care expenses, on a tax-free basis, up to certain limits. With many schools and day care facilities closing due to the COVID-19 outbreak, employees may want to change the amount of their DCAP contributions. Also, employees may be concerned about not being able to use all of their DCAP funds this year due to changing child care needs and availability.” EEOC Updated Employer Guidance on Coronavirus and the ADA May 7, 2020 – McGriff Insurance Services Excerpt: “On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) issued additional answers to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic. The new FAQs were added to guidance that the EEOC previously issued on March 18, 2020, and updated on April 9, 17 and 23, 2020.”

Families First Coronavirus Response Act: Questions and Answers May 7, 2020 – The U.S. Department of Labor Excerpt: ‘New Questions 89-93’   New Employee Retention Credit helps employers keep employees on payroll May 7, 2020 – The Internal Revenue Service Excerpt: “The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) encourages businesses to keep employees on their payroll by providing them an Employee Retention Credit. It also helps to make sure workers aren't forced to choose between their paychecks and the public health measures needed to combat the coronavirus. Eligible employers can claim this credit for wages paid after March 12, 2020, and before January 1, 2021.” Are PCOR Fees Still Required for Our Company’s Self-Insured Health Plan? May 7, 2020 – Thomson Reuters Excerpt: “However, budget legislation passed in December 2019 reinstated the PCOR provision and continued the fee requirements through plan years ending before October 1, 2029.” New COVID-19 Lawsuit Sends Warning To Employers Too Large To Be Covered By FFCRA May 6, 2020 – Fisher Phillips LLP Excerpt: “The case, filed in federal court in the Northern District of Indiana, is one of the first of many anticipated lawsuits as the country begins to emerge from the worldwide pandemic. What can all employers – especially those who believed they were well outside the reach of the FFCRA – learn from this claim?” DOL Releases New Model COBRA Notices Amid Continued Wave of Litigation May 5, 2020 – Littler Mendelson P.C. Excerpt: “Employers are not required to follow the model notices, so there is no specific “effective date” for implementing the changes recommended in the model notices. Employers that follow the model notices, however, will be deemed to have complied with COBRA’s notice requirements.” Chronicle of Late Election Foretold: Mandatory Extension of Certain Benefit Plan Deadlines May 4, 2020 – Poyner Spruill LLP Excerpt: “The Employee Benefits Security Administration and the Internal Revenue Service have provided relief to certain plan participants, which plan sponsors and administrators will be required to implement. Essentially, the plan must disregard the coronavirus "Outbreak Period" when it is calculating certain plan deadlines.” IRS Clarifies Availability of Employee Retention Tax Credit May 4, 2020 – Baker & Hostetler LLP Excerpt: “The IRS has issued extensive FAQs addressing application of the employee retention tax credit (ERTC), including employer eligibility and determination of qualified wages. Enacted as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to incentivize employers to maintain their payrolls, the ERTC allows eligible employers to claim a credit equal to 50% of qualified wages paid between March 13, 2020, and Dec. 31, 2020, up to a maximum credit of $5,000 per employee.” San Francisco Employees With Medical Reimbursement Accounts Can Now Access Funds for Necessities During COVID-19 May 1, 2020 – Davis Wright Tremaine LLP Excerpt: “More than 100,000 San Francisco employees can now access funds contributed by their employers under the San Francisco Health Care Security Ordinance (HCSO) to pay for necessary expenses during COVID-19, including food, rent, mortgage payments, and utilities…Thus far, there is no requirement that employers notify employees of this opportunity. The SF City Option program will be reaching out to eligible employees to inform them of their right to request a one-time disbursement of funds in their accounts.” FP BEYOND THE CURVE: Back-to-Business Checklist May 2020 – Fisher & Phillips LLP Excerpt: “As we look toward life after the worst of the COVID-19 coronavirus pandemic has passed, business recovery will be paramount. This includes assessing business operations, bringing employees back to work, and ensuring a safe workplace.”

COVID-19 Updates: Most Antibody Tests Useless; Weeks of a Lingering Flu; Autopsy Results & Gain-of-Function Testing

With all of the news that the Coronavirus was widely spread in the United States long before we originally thought and the news that much higher percentages of the population may have already been infected with COVID-19, we are all eager to get an antibody test to see if we might be immune (at least for some period of time) to the dreaded disease.  Unfortunately, it is probably most prudent to wait a little longer before finding that antibody test.  I was on a conference call with a major medical group and insurer yesterday.  They flatly told me, there are no antibody tests they recommend yet.  They are just too unreliable.  And then there is this, from the Verge: 

Several labs ... are now doing independent validation of antibody tests. Already, there are some early results: a manuscript that hasn’t yet been peer-reviewed or published from a group of scientists led by the University of California San Francisco and the University of California, Berkeley. Only three of the 14 tests the group evaluated were reliable. Four of the tests had false positive rates that ranged from 11 to 16 percent. “Those numbers are just unacceptable,” Scott Hensley, a microbiologist at the University of Pennsylvania, told The New York Times. “If your kit has 14 percent false positive, it’s useless.”

I've had a family member suffering from COVID-19 for just about five weeks now, I wanted to share this as Bill Mitchell's experience is very similar to what we've seen in our family.

The conclusion to this story is a good one as Bill posted yesterday: 

It is important to know, this thing can absolutely linger on for weeks and weeks.  In some patients it appears to ebb and flow; weakening at times and then worsening.  Bloomberg reported on this here: 

It had been over a month since Mirabai Nicholson-McKellar was infected with the coronavirus, and the 35-year-old filmmaker thought she was on her way to recovery. Then the shortness of breath came back, followed by chest pains. 

A visit to the emergency room and a second test for Covid-19 gave another positive result. Just three days earlier, she’d been cleared by health authorities in Australia’s New South Wales state, and was allowed to end her home quarantine after going 72 hours without symptoms.  

And from NBC: 

Kate Porter has had a fever nearly every day for 50 days. She can't shake the extreme exhaustion that hit when she became infected with the coronavirus nearly two months ago. 

The longevity of her symptoms are unlike anything she's ever experienced. "I know it sounds crazy," Porter said, "but is this permanent?" 

Since her diagnosis, Porter, 35, has been in her Beverly, Massachusetts, home with her 12-year-old daughter, Adria, who also had symptoms of COVID-19. 

Neither has underlying health conditions that would suggest a complicated or drawn-out recovery from the virus, and neither has had to be hospitalized.

And from Fox 5 in New York: 

Since March 19th, Christian Bermea has been battling coronavirus COVID-19 from his Houston-area apartment. 

According to the 26-year-old, he tested positive for COVID-19 again on April 13th and May 1st. While he doesn’t feel as sick as he originally did more than 50 days ago, Bermea says he does still have some symptoms.

In yesterday's daily coronavirus update video, Dr. Chris Martenson covered recent autopsy results on COVID-19 from Switzerland.  These autopsies provide more evidence that COVID-19 is probably not a lung disease, but instead a blood clotting disorder.  Dr. Martenson covers it here beginning at the 8:12 timestamp:

Discussing Watson, reporting in Switzerland, "Coronavirus: Basel pathologist explains what the victims have in common":

They have gained important insights from the autopsy of the deceased. “The disease takes place in the smallest vessels in the lungs and in other organs. If these vessels can no longer function properly, clots form, »explains Tzankov. Because it is actually their job to keep the blood liquid. Due to the blockage of the bloodstream, the blood is now practically still. "If the patient is now ventilated, the oxygen gets into the blood, but is no longer distributed in the body," says Tzankov. This ultimately leads to death - as happened with the 21 patients who the pathologists from the region examined after their death. However, only a few would have shown signs of pneumonia.

The bulk of Dr. Martenson's video yesterday focused on whether COVID-19 was likely to have occured in nature or to have been edited and augmented in a lab.  He delves into a deep scientific discussion of that point beginning at the 23:14 timestamp in his video.  I wouldn't say it is easy for a non-scientist to follow, but it is certainly more accessible for we laymen than I remember of my college science courses.  I'll sum up that discussion by saying that there will undoubtedly be much more on this topic over the upcoming months and years as the media and the public become aware that the United States has been funding gain-of-function research on bat coronaviruses in Wuhan, China.  Newsweek reported on this expertly here, saying: 

In 2019, with the backing of NIAID, the National Institutes of Health committed $3.7 million over six years for research that included some gain-of-function work. The program followed another $3.7 million, 5-year project for collecting and studying bat coronaviruses, which ended in 2019, bringing the total to $7.4 million. 

Many scientists have criticized gain of function research, which involves manipulating viruses in the lab to explore their potential for infecting humans, because it creates a risk of starting a pandemic from accidental release.

SARS-CoV-2 , the virus now causing a global pandemic, is believed to have originated in bats. U.S. intelligence, after originally asserting that the coronavirus had occurred naturally, conceded last month that the pandemic may have originated in a leak from the Wuhan lab. (At this point most scientists say it's possible—but not likely—that the pandemic virus was engineered or manipulated.) ...

According to Richard Ebright, an infectious disease expert at Rutgers University, the project description refers to experiments that would enhance the ability of bat coronavirus to infect human cells and laboratory animals using techniques of genetic engineering. In the wake of the pandemic, that is a noteworthy detail. 

Ebright, along with many other scientists, has been a vocal opponent of gain-of-function research because of the risk it presents of creating a pandemic through accidental release from a lab.

What is "gain-of-function" research you might be asking yourself, this is from National Center for Biotechnology Information, U.S. National Library of Medicine: 

Gain-of-function (GOF) research involves experimentation that aims or is expected to (and/or, perhaps, actually does) increase the transmissibility and/or virulence of pathogens. Such research, when conducted by responsible scientists, usually aims to improve understanding of disease causing agents, their interaction with human hosts, and/or their potential to cause pandemics. The ultimate objective of such research is to better inform public health and preparedness efforts and/or development of medical countermeasures. Despite these important potential benefits, GOF research (GOFR) can pose risks regarding biosecurity and biosafety.

COVID-19 Repeat Infections Look to Be False Positives; Seasonal Flu Death Counts Dubious at Best; Is COVID a Blood Clotting Disease?

Dr. Chris Martenson at Peak Prosperity has been posting videos on COVID-19 just about every day for 98 days now.  Dr. Martenson's PhD is in Pathology from Duke University.  He has consistently been weeks ahead of the vast majority of the media on the Coronavirus. More importantly, he's been far more accurate.  

Family, friends and I are all really starting to hit the COVID wall.  The burnout is real.  So, I've started trying to boil the info in his videos down to what I think are the few most interesting parts and sending out timestamps for those who are just not going to consume 45 minutes but still want the data.  Here is the best of yesterday:     

1) Repeat infections now appear to be false positives starts here at 2:45;

2) Comparing COVID-19 deaths to the flu is like comparing apples to fishing rods. Those flu numbers we have seen over the years aren't even close to real numbers. They are all projections based on modeling whereas we are trying to use actual counts on COVID-19. Watch this here at 17:30;

3) It's starting to look more like COVID-19 is not necessarily a respiratory disease but a blood clotting disease that happens to attack the lungs most noticeably and first. This would help to explain why we're all hearing stories as to how it is also severely impacting kidneys, hearts, arteries, and brains in some patients.  That is here at 22:06. 

Millions Of Now-Unemployed Americans Are Making More Money Than They Did When Working

From ZeroHedge:

Social Security Administration numbers show that half of all U.S. workers make less than $33,000 a year.  Of course if you multiply $600 by 52 weeks, you get $31,200.  The provision in the CARES Act that pays this bonus money to unemployed workers is supposed to expire on July 31st, but there is likely going to be a tremendous push to extend these benefits far beyond that date....  

[B]usinesses all over America are not going to be able to “return to normal” if millions upon millions of workers simply do not want to work. 

In fact, a coffee shop owner in Harlan, Kentucky named Sky Marietta just had to close her entire business down because it would cost her former employees “literally hundreds of dollars per week” to be employed. 

Yes, Hospitals Get Paid More For Coronavirus-Coded Patients, Even If They Haven’t Been Tested

From the Daily Wire:

“Hospital administrators might well want to see COVID-19 attached to a discharge summary or a death certificate. Why? Because if it’s a straightforward, garden-variety pneumonia that a person is admitted to the hospital for – if they’re Medicare – typically, the diagnosis-related group lump sum payment would be $5,000,” he added on April 19. “But if it’s COVID-19 pneumonia, then it’s $13,000, and if that COVID-19 pneumonia patient ends up on a ventilator, it goes up to $39,000.” 

Speaking to USA Today, Marty Makary, a surgeon and professor of health policy and management at Johns Hopkins Bloomberg School of Public Health, said via email on April 21, “What Scott Jensen said sounds right to me.”

COVID-19 Could Cut U.S. Healthcare Costs by Half a Trillion Dollars

From BenefitsPro: 

While the testing and treatment of COVID-19 patients is increasing health care costs across the country, these expenses are dwarfed by the cost reductions resulting from the deferral of nearly all elective care and other care that can be delayed.  

Full story. 

America Will Dramatically Change the Way It Provides Health Care by 2030

A benefits specialist looks ahead and sees... something for all. Not Medicare.

By Craig Gottwals | March 25, 2020 at 03:30 AM
Full story at ThinkAdviser

COVID-19 could change things. But I believe that, unless there’s a severe disruption in our economy such as a deep, long-lasting recession, depression or runway inflation, U.S. health care will be largely socialized by 2030.

The 2021 Supreme Court Head Fake

On March 22020, the United States Supreme Court agreed to hear another legal challenge to the Patient Protection and Affordable Care Act (ACA). The case is Texas v. Azar, a lawsuit challenging the constitutionality of the ACA’s individual mandate.

As the third time the Supreme Court decided to hear an ACA case, this generated a multitude of stories over the first few days of March. The case revolves around the legality of the ACA now that penalties (taxes) for violations of the individual mandate have been reduced to $0 under federal law. Texas and nearly half of all states argue that because the Supreme Court previously held that the individual mandate is integral to the function of the ACA, its nullification in December 2017 under the Tax Cuts and Jobs Act necessitates the collapse of the entire law.

Frankly, it is a clever and plausible argument since the Supreme Court already held that the ACA’s individual mandate is not severable to the law’s proper function. Nevertheless, it is an extraneous issue at this point. America’s path on health care is clear and will follow the country’s movement toward more government and socialization. ...

Read the full story here.  

Californians Must Buy Health Insurance or Face a Penalty Unless ... They Don't Want To | 24 Flavors of Exemption

At one point in time, Obamacare was up to 32 exemptions to the individual mandate as politicians (particularly those in favor of government healthcare) realized it was really bad for reelection purposes to go around penalizing the people who were likely to keep them in office.  Finally, federal politicians capitulated and congress eliminated the individual mandate penalty (tax).

What about Obamacare's pay-fors, fiscally responsible citizens might ask.  Don't be so silly.  U.S. political leaders needn't concern themselves with such trivial nuances.  As originally passed, PPACA was slated to cost just under a trillion dollars over ten years.  Now, it will cost just under two trillion.  But really, who cares about a trillion here or there when we are already $23.5 trillion in debt and neither party ever seriously makes any move to address the problem.

California is now following the same path as we in the Golden State have super-charged our version of PPACA.  In California folks can qualify for other people's money to help them buy health insurance so long as they make less than 600% of the federal poverty level (FPL).  That is right, 600 percent or a paltry $154,500 for a family of four.  That is not a typo.  Calunicorinians saw Obamacare's 400% and increased it by 50%.  Because, you know, we are Calitopia! 

In any event, I just stumbled across a fun list.  You see, California's politicians just like Obamacare's original supporters, really want no part of forcing their constituents into buying a health plan that they don't want.

Therefore, in California, you must buy health insurance for you and your family (with other people's money if you make under 600% of the FPL) unless:

1. Your income below the state tax filing threshold.
2. You had a coverage gap of 3 consecutive months or less.
3. Your health coverage is unaffordable, based on actual income reported on your state income tax return when filing taxes.  This means that the cost of the lowest cost Bronze plan through Covered California or the lowest cost employer-sponsored employee-only plan is more than 8.24 percent of income on the tax return.
4. Certain non-citizens who are not lawfully present.
5. Citizens living abroad or residents of another state.
6. Members of a healthcare sharing ministry
7. A member of a recognized religious sect or division who is opposed to acceptance of the benefits of any private or public insurance.
8. A member of a religious sect or division who relies solely on a religious method of healing.
9. American Indians. 
10. Alaska Natives.
11. Incarceration.
12. Enrolled in limited or restricted-scope Medi-Cal or other similar coverage.
13. Experienced homelessness.
14. You were evicted in the past six months or are facing eviction or foreclosure.
15. You received a utility shut off notice in the last year. 
16. You have experienced domestic violence.
17. Death of a close family member.
18. Natural disaster (i.e. fire, flood, or human-caused disaster).
19. Bankruptcy.
20. Medical expenses that resulted in substantial debt.
21. Unexpected increases in necessary expenses or decreases in household income due to divorce/separation, unexpected or sudden disability, or caring for an ill, disabled or aging family member.
22. Appeals decision shows eligibility for enrollment through Covered California when not actually enrolled.
23. Medical support order.
24. Other (granted on a case-by-case basis). The state form for the general hardship application is only 11 pages.  

So how many Californians will actually pay one of these fines?  A quick perusal of the list shows than you can skip paying a utility until the last possible moment to generate a shut off notice for yourself.  Bang!  A get out of Obamacare free card.  

This is nothing more than charade to make it look as if we have an individual mandate without really having one.  And the only folks who will actually end up paying this tax/penalty are those who are totally caught off guard or just not even trying a little bit.   

What will the fine be for those who actually do have to pay?  

The penalty will be the higher of either:

• A flat amount, based on the number of people in the tax household ($695 per adult and $347.50 per child), or
• Pay 2.5% of the amount of gross income that exceeds the filing threshold requirements based on the tax filing status and number of dependents.  

The state has been kind enough to provide you an example of this here.  

California Supreme Court: Time Spent in Security Screenings is Compensable

Overview:

• The Frlekin decision expands the scope of what is considered compensable time under state law.
• The decision is based on the employer’s control of the employee’s time, not on whether the employee was “suffered or permitted to work.”
• The court clarified that, in cases involving onsite employer-controlled activities, courts may and should consider additional relevant factors, including, but not limited to:
• The location of the activity;
• The degree of the employer's control;
• Whether the activity primarily benefits the employee or employer; and
• Whether the activity is enforced through disciplinary measures.

  

---

The California Supreme Court issued a decision in Frlekin v. Apple, Inc. (Frlekin) clarifying that, under state law, compensable time or “hours of work” includes the time an employee spends on the employer’s premises waiting for, and undergoing, mandatory exit searches of bags, packages, or personal technology devices (such as iPhones) that are voluntarily brought to work purely for personal convenience.

Many employers have adopted security screenings to curb employee theft, particularly in the retail and mercantile industries. In light of the Frlekin decision, California employers will need to pay close attention to the length and scope of their screening procedures and whether they need to account for the time employees wait to go through the screening process.

Hours Worked

In Frlekin, the plaintiffs sued their employer, Apple Inc. (Apple), for unpaid minimum and overtime wages for the time they spent waiting for and undergoing Apple’s exit searches. Apple required its employees to clock out before submitting to thorough security screenings at the end of their work shift and leaving Apple’s premises. The screenings could be lengthy and required employees to wait for extended periods of time.

Under California’s Wage Order 7 (the controlling law in this case), “hours worked” is defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Emphasis added.)

The court in this case concluded that an employer is controlling an employee’s time when it requires the employee to submit to an exit search before exiting the employer’s premises. As a result, the court determined that the time employees spend undergoing exit searches is compensable as “hours worked” under California labor law.

The court also rejected the employer’s argument that compensable time must be tied to an activity that is “required” or “unavoidable,” because this type of language:

• Does not exist in Wage Order 7; and
• Is inconsistent with the history and purpose of Wage Order 7.

Issues for Employers

Even though security screening cases are uncommon under federal law, this court decision seems to contradict the U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, holding that time spent awaiting bag checks was not compensable time under the Fair Labor Standards Act (FLSA). Employers will want to understand the difference between these two cases and determine whether state or federal law applies, based on their specific circumstances.

Finally, the California Supreme Court also indicated that the Frlekin decision applies retroactively, meaning that employers that adjust their security screening and other off-the-clock practices may also need to go back a few years to determine whether they are liable for unpaid wages to their employees.

Emergency Room or Urgent Care?

More than 12% of all emergency room visits are better addressed in either an urgent care facility or a doctor’s office.  Urgent care is commonly one-tenth the cost of an emergency room visit with urgent care costing an average of $100 per visit and emergency room visits costing an average of approximately $1,300. 

If you’re suddenly faced with symptoms of an illness or injury, how can you determine which facility is most appropriate for your condition?

The Emergency Room

Emergency rooms are equipped to handle life-threatening injuries and illnesses and other serious medical conditions. An emergency is a condition that may cause loss of life or permanent or severe disability if not treated immediately. You should go directly to the nearest emergency room if you experience any of the following:

• Chest pain
• Shortness of breath
• Severe abdominal pain following an injury
• Uncontrollable bleeding
• Confusion or loss of consciousness, especially after a head injury
• Poisoning or suspected poisoning
• Serious burns, cuts or infections
• Inability to swallow
• Seizures
• Paralysis
• Broken bones

Patients at the emergency room are sorted, or triaged, according to the seriousness of their condition. For example, a patient with severe injuries from a car accident would likely be seen before a child with an ear infection, even if the child was brought in first. 

Those who go to the emergency room with relatively minor injuries or illnesses often have to wait more than an hour to be seen, depending on the severity of the other patients’ conditions. Often they could have been seen more quickly at an urgent care facility.

Urgent Care

Urgent care centers are usually located in clinics or hospitals, and, like emergency rooms, offer after-hours care. Unlike emergency rooms, they are not equipped to handle life-threatening situations. Rather, they handle conditions that require immediate attention—those where delaying treatment could cause serious problems or discomfort.

Some examples of conditions that require urgent care are these:

• Ear infections
• Controlled bleeding or cuts that require stitches  
• Urinary tract infections
• Vomiting
• High fever
• Flu 
• Minor broken bones like toes or fingers 
• Sprains or strains  
• Urinary tract infections  
• Skin rashes 

Urgent care centers are usually more cost-effective than emergency rooms for these conditions. In addition, the waiting time in urgent care centers is usually much shorter. Choosing the appropriate place of care can not only ensure prompt medical attention but will also help reduce any unnecessary expenses. 

  

Health Savings Account (HSA) Eligibility Rules

2019 Compliance Review

Links to all the articles, publications, and legislative educational resources that we distributed in 2019.