Looking More Like COVID-19 Will Reduce Employer Medical Claims in 2020

From SHRM:    

The coronavirus may end up lowering health care costs for self-insured employers this year, as medical treatment for noninfected patients declines during the pandemic, according to new reports. Health care actuaries who in April predicted a spike in group health plan costs now have reservations about those earlier forecasts, and they are uncertain about the outlook for plan premiums in 2021. ... 

COVID-19 could reduce employer health care costs for self-insured employers by as much as 4 percent in 2020, according to a May study ... that analyzed estimates of infection levels in the U.S. In April, a similar study conducted ... projected that costs for large employers could rise by as much as 7 percent due to COVID-19 testing and treatment, echoing forecasts by other consultancies and health industry groups. 

In a self-funded (or self-insured) group health plan, the employer assumes the financial risk of paying for employees' health care claims under the cost-sharing terms of the plan. ... 

Looking ahead to 2021, 'additional financial risks come from the potential adverse consequences from missed wellness visits, immunizations and services that otherwise would have been delivered,' [one expert] said. 'It is not unreasonable to assume that we'll see an increase in case complexity due to these missed services, and though the extent is debatable, it will likely be dependent on how long people continue to avoid care.' ...

Accommodating At-risk Employees Under the ADA Amid a Global Pandemic

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees who need it. These accommodations can be straightforward and may include installing a wheelchair ramp, adding text-to-voice software on a computer or making some alterations to the height of a desk. When employers are fortunate, the accommodation needed for an employee to perform their job is fairly obvious. 

But what happens when the return to work potentially prevents employees from safely accomplishing their work? For employees who have a greater risk of contracting the coronavirus disease COVID-19, this is could be grim. 

This post compiles some guidance from the Equal Employment Opportunity Commission (EEOC) to help employers during the coronavirus pandemic. The guidance focuses on ADA accommodations as they pertain to “at-risk” employees. 

Question 1: What does an employee need to do in order to request reasonable accommodation from their employer because they one of the medical conditions that the CDC says may put them at higher risk for severe illness from COVID-19?

Answer 1: An employee—or a third party, such as an employee’s doctor—must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

Question 2: The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

Answer 2: First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee—or take any other adverse action—solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area, the employee’s own health (for example, whether the employee’s disability is well-controlled) and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the coronavirus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. 

Question 3: What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

Answer 3: Accommodations may include additional or enhanced protective gowns, masks, gloves or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and co-workers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with co-workers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

HSA/HDHP Limits Increase for 2021

On May 20, 2020, the IRS released Revenue Procedure 2020-32 to provide the inflation-adjusted limits for health savings accounts (HSAs) and high deductible health plans (HDHPs) for 2021. The IRS is required to publish these limits by June 1 of each year. 

These limits include:

• The maximum HSA contribution limit;
• The minimum deductible amount for HDHPs; and
• The maximum out-of-pocket expense limit for HDHPs.

These limits vary based on whether an individual has self-only or family coverage under an HDHP.

Eligible individuals with self-only HDHP coverage will be able to contribute $3,600 to their HSAs for 2021, up from $3,550 for 2020. Eligible individuals with family HDHP coverage will be able to contribute $7,200 to their HSAs for 2021, up from $7,100 for 2020. Individuals who are age 55 or older are permitted to make an additional $1,000 “catch-up” contribution to their HSAs.  

The minimum deductible amount for HDHPs remains the same for 2021 plan years ($1,400 for self-only coverage and $2,800 for family coverage). However, the HDHP maximum out-of-pocket expense limit increases to $7,000 for self-only coverage and $14,000 for family coverage.

 

HSA/HDHP Limits

The following chart shows the HSA and HDHP limits for 2021 as compared to 2020. It also includes the catch-up contribution limit that applies to HSA-eligible individuals who are age 55 or older, which is not adjusted for inflation and stays the same from year to year.

  

Midweek Compliance & Benefit Updates | COVID-19, Workplace Reopening & How a Med Group CEO Deals with Surprise Medical Bills

Templates and Tools

• Workplace Reopening Decision Tool
• Guidance on Interpreting COVID-19 Test Results (CDC Matrix)
• Coronavirus Testing Basics (FDA Matrix)

Compliance Updates

Question: Some of our employees have said they don't feel safe returning to work. Can we just permanently replace them? We recommend extreme caution when deciding to replace an employee who refuses to work because of concerns about COVID-19. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. However, under the current circumstances, where COVID-19 continues to be a threat across the country, we think it would be difficult to show that employees have no reason to fear coming in to work... read our full answer here. And for another view on this topic see SHRM's summary in the next story-

Fear of Coronavirus Isn’t Covered by FFCRA - "If an employee chooses to self-quarantine out of fear, the worker would not be entitled to FFCRA benefits, even if the employer permits the employee to self-quarantine ... An employee who is experiencing COVID‑19 symptoms is entitled to leave under the FFCRA only if the employee seeks a medical diagnosis or if a health care provider directs or advises the employee to stay home."

Legislative Watch, New California Bill Would Mandate Up to 10 Days of Bereavement Leave - "Assembly Bill (AB) 2999 was introduced to mandate bereavement leave as a new form of protective leave in California. The bill would require employers in California to provide employees with “up to 10 business days of unpaid bereavement leave,” and to refrain from interfering with or restraining employees from taking such leave. The days of leave would not need to be consecutive; however, the leave must be completed within three months following the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Under the current draft, AB 2999 would apply to all employers, regardless of size."

Question: Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer: No. As an exercise of the Administrator’s and the Secretary’s authority under Section

1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of reemployment may forfeit eligibility for continued unemployment compensation. For more information, visit SBA.gov.

California Expands Workers’ Compensation Eligibility for COVID-19 - California Gov. Gavin Newsom issued Executive Order N-62-20, declaring that a COVID-19-related illness of an employee shall be presumed to have occurred in the place of the employment for purposes of awarding workers’ compensation benefits, but only if specific requirements are satisfied. The order eases employee access to workers’ compensation benefits by shifting the burden of proof to employers who, in order to avoid a claim, must prove employees did not contract COVID-19 at work. 

Benefit News

Here is How Medical Group Presidents Deal with Surprise Out of Network Emergency Room Bills - "When Stacey Richter’s husband recently landed in a New Jersey emergency room, fearing a heart attack, she had an additional reason for alarm: a potential big bill from the hospital if the E.R. wasn’t in his insurer’s network.

So she took an unusual step. Instead of simply signing the hospital’s financial and treatment consent form, Ms. Richter first crossed out sections calling for her to pay whatever amount the hospital charged. She wrote in her own payment rate of a 'maximum of two times' what the federal government would pay under Medicare, which is in the ballpark, experts said, of what hospitals might consider an acceptable rate.

'And then I signed it, took a picture of it and handed it back to them,' said Ms. Richter, co-president of the consultancy Aventria Health Group. ...legal scholars question the premise that hospitals’ financial consent forms are themselves valid contracts. That’s because contract law requires 'mutual assent,' which Barak Richman, who studies contract law and teaches at Duke University Law School, said patients can’t really give because they are seldom told the true price of care upfront, before signing....

'If patients alter the wording with their own terms — so long as they agree to pay what is considered a reasonable amount — then judges may also look to that added language,' said Mr. Richman."

At Least for a While, It Pays Better to Be Unemployed (MAP) - Massachusetts generous unemployment policies combined with the stimulus means all workers making under $73,996 would receive more a week unemployed than they do from working. Many of these salaries outstrip the state's median income, meaning the majority of workers would receive more from an unemployment check than a paycheck.

Top 1% of Spenders Account for 22% of Health Care Expenses - "15 percent of the U.S. civilian noninstitutionalized population had no health care expenditures in 2016, and only 5 percent of the population accounted for half of health care spending. This includes all sources of payment for medical care, including private insurance payments, Medicare, Medicaid, out-of-pocket spending, and other sources....The bottom 50 percent accounted for only 2.8 percent of total health care expenditures. Persons in this group spent less than $971 during the year."

Coronavirus will be the largest loss on record for insurers, Lloyd’s of London says - The British insurance and reinsurance market projected that its own Covid-19 casualty and property (C&P) claims could reach up to $4.3 billion as at June 30, and warned that this could rise further if the pandemic continues for another quarter. In a broader economic assessment report on the impact of Covid-19 for the non-life insurance industry, Lloyd’s estimated that the 2020 underwriting losses covered by the industry will hit $107 billion.

How a single insurance company came to dominate Gavin Newsom’s COVID-19 testing team - "As Gov. Gavin Newsom navigates one of his most vexing problems during the pandemic, supplying the state with enough tests for COVID-19, he has relied heavily on a single company: insurance giant Blue Shield of California, a generous campaign contributor and supporter. Nearly half of the leadership positions on Newsom’s high-priority task force on coronavirus testing are filled with Blue Shield executives. Its CEO, Paul Markovich, is the co-lead, alongside the assistant director of the state Department of Public Health. All told, employees of the insurance company make up 22 percent of the 68-position team."

Health & Wellness

(Finally some good news!) Covid Patients Testing Positive After Recovery Aren’t Infectious, Study Shows - "Researchers are finding evidence that patients who test positive for the coronavirus after recovering aren’t capable of transmitting the infection, and could have the antibodies that prevent them from falling sick again. Scientists from the Korean Centers for Disease Control and Prevention studied 285 Covid-19 survivors who had tested positive for the coronavirus after their illness had apparently resolved, as indicated by a previous negative test result. The so-called re-positive patients weren’t found to have spread any lingering infection, and virus samples collected from them couldn’t be grown in culture, indicating the patients were shedding non-infectious or dead virus particles."

A Doctor's Diary From a COVID ICU (A Mayo Clinic doctor heads to New York for a week on the front lines) - "I arrived last night to find that two of my patients had died during the day. It was expected. My night wasn’t going to get much better from there.

In my first 30 minutes, I had four patients abruptly decompensate and nearly code (where we do chest compressions, give powerful meds, and potentially shock the heart with electricity—“clear!”). I had a team of six so everyone took a patient and I pinballed from one patient to the next, assessing, directing, and working the problems. Codes can actually be quite nice because they are (usually) very formulaic and you work your way through an algorithm. Not so just before a code. In the moments before a code you have a window to alter the care and prevent a code from happening, but the clock is ticking. In my case I had four clocks. Fortunately, the team stepped up; unfortunately, we had some limited resources and we were just getting settled into the night.

One patient threw a massive blood clot into his lungs and we had to push very strong drugs to break it up. Another patient had the opposite—she was bleeding out from her lungs and we had to administer drugs down her breathing tube and through her IV to stop the bleeding."

'Weird as hell’: The Covid-19 Patients Who Have Symptoms for Months - "Days later, he found himself fighting a raging infection. It’s one he likens to being 'abused by somebody' or clubbed over the head with a cricket bat. 'The symptoms were weird as hell,' he says. They included loss of smell, heaviness, malaise, tight chest and racing heart. At one point Garner thought he was about to die. He tried to Google 'fulminating myocarditis' but was too unwell to navigate the screen....He had a muggy head, upset stomach, tinnitus, pins and needles, breathlessness, dizziness and arthritis in the hands. Each time Garner thought he was getting better the illness roared back. It was a sort of virus snakes and ladders. 'It’s deeply frustrating. A lot of people start doubting themselves,' he says."  

Benefit & Employer COVID-19 Updates Week Ending May 16th

New COVID-19 Guidance for Section 125 Mid-year Election Change Rules May 12, 2020 – McGriff Insurance Services Excerpt: “On May 12, 2020, the IRS released Notice 2020-29, which provides temporary flexibility for mid-year election changes under a Section 125 cafeteria plan during calendar year 2020. The changes are designed to allow employers to respond to changes in employee needs as a result of the COVID-19 pandemic. This guidance relates to mid-year elections for self-insured and fully insured employer-sponsored health coverage, health flexible spending arrangements (health FSAs) and dependent care assistance programs (DCAPs).” IRS Provides More Options for Unused Funds in Health FSAs and DCAPs May 12, 2020 – McGriff Insurance Services Excerpt: “On May 12, 2020, the IRS announced more options with respect to unused amounts in health flexible spending accounts (FSAs) and dependent care assistance programs (DCAPs). These options allow employers to permit…”

Businesses That Obtained PPP Loans Under $2M Will Not Be Audited May 14, 2020 – Fisher & Phillips Excerpt: “One long week after the U.S. Treasury announced that it was extending the Paycheck Protection Program Loan “safe harbor” deadline to May 14, the U.S. Treasury announced this morning that borrowers whose loan amount (combined with the loan amount of any affiliates) is less than $2 million is automatically deemed to have made the certification in good faith…Late in the day on May 13, the Treasury Department once again extended the repayment date of the safe harbor from May 14 to May 18 to give borrowers an opportunity to review and consider this announcement.” This Won’t Hurt a Bit: Employee Temperature and Health Screenings – A List of Statewide Orders, as of May 14, 2020 May 14, 2020 – Littler Mendelson P.C. Excerpt: “Some jurisdictions also require employers to screen the health of employees, often as they begin a shift. These health screening steps, including temperature checks, may become more common as states begin to reopen their economies.” Can Employees Change Their Health FSA Elections Midyear If Elective Surgery Is Postponed Due to the COVID-19 Pandemic? May 14, 2020 – Thomson Reuters Excerpt: “However, IRS Notice 2020-29 (see our Checkpoint article) provides increased flexibility regarding midyear elections during calendar year 2020. The notice states that plans may be amended to allow several types of prospective cafeteria plan election changes during 2020, including an election to prospectively decrease a participant’s health FSA contribution amount.” HHS Final Rule Addresses Application of Prescription Drug Copay Coupons to Group Health Plan Out-of-Pocket Limit May 13, 2020 – Vorys, Sater, Seymour and Pease LLP Excerpt: “Under the 2021 Final Rule, a self-funded group health plan has the flexibility to determine whether to include or exclude the amount of drug manufacturer copay coupons regardless of whether a medically appropriate generic equivalent is available. An insured group health plan may also have to comply with any applicable state laws regarding copay coupons…Unless new guidance is issued by the IRS changing its current position that discounts must be disregarded in determining whether a HDHP deductible has been met, it appears that sponsors of HSA-compatible HDHPs must adopt a copay accumulator program in order to preserve participants’ eligibility to make or receive health savings account (HSA) contributions.” Treasury Will Now Allow an Employer Tax Credit for Insured Furloughed Workers May 13, 2020 – Findley  Excerpt: “Employers that are partly or completely prohibited from operating during the shutdowns caused by the coronavirus pandemic but who continue to fund employee health care coverage, may be able to take up to a $10,000 tax credit for each employee, regardless of whether they are paying wages to those employees.” IRS Provides More COVID-19 Relief: This Time for Cafeteria Plans May 13, 2020 – Spencer Fane LLP Excerpt: “Employers should carefully consider whether to adopt some, all or none of the changes permitted under Notice 2020-29, and whether to impose additional conditions or limitations on a participant’s ability to make mid-year election changes or to have additional time to spend unused amounts in their FSAs.” Elections in a Section 125 Plan Just Became Less Irrevocable During 2020 May 12, 2020 – Graydon Head & Ritchey LLP Excerpt: “Several weeks ago, the IRS and DOL issued a joint Final Rule extending a number of deadlines, including COBRA and HIPAA special enrollment deadlines. As part of this relief, a group health plan is required to ignore the period of time from March 1st until 60 days following the end of the national emergency when calculating a participant’s special enrollment window or COBRA qualifying event notice. However, the prior relief did not provide any guidance as it related to mid-year changes under a Section 125/Cafeteria plan. Today the IRS issued a different type of relief for Section 125 plans…Unlike the Final Rule issued last month, this relief is COMPLETELY OPTIONAL.” House Democrats Unveil “Phase 4” COVID-19 Relief Legislation, Including Expansion of Paid Sick and Family Leave, Hazard Pay, and Unemployment Benefits May 12, 2020 – Littler Mendelson P.C. Excerpt: “As expected, the proposal—the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act—includes a number of labor and employment provisions of great significance to employers, including expansion of prior laws, and new proposals aimed at providing relief to workers during the public health emergency. Senate Republicans have yet to unveil their proposal, although their leadership has indicated that providing employers with protection from liability related to COVID-19 lawsuits will be highest on their list of priorities.” Summary Table and In-Depth Analyses of COVID-19 Legislation for Employer-Based Retirement and Welfare Plans May 7, 2020 – Ice Miller Excerpt: “To assist employers and public retirement systems with the myriad of changes, we have catalogued the provisions of the FFCRA and CARES Act that impact employer-sponsored retirement plans, health plans, and other benefits in a table format.”

HR Advisory | New OE Tools, Obesity & COVID-19

I hope everyone's been having a positive and productive week. There is no shortage of activity on many fronts right now from conflicting opinions at the federal level on the biological impact of returning to work, to the proposed 4th phase of governmental assistance. Let’s not forget of course, the varying approaches and stages to re-opening that not only differ by state, but in many cases, differ within a state. It’s enough to make your head spin! Placer county, for example, now permits restaurants to open for dine-in service, but they must comply with this very detailed 12-page list of guidelines. Our world has definitely changed. Despite all of this “noise”, we have some great information that will allow you to stay up to speed on the dizzying amount of activity. 

Tools

Our Benefits Administration and Technology practices have teamed up to develop a Brainshark video on Open Enrollment Considerations Due to Covid-19. If you have not yet seen or used Brainshark, this is an added solution we can employ this year and it is proving to be an outstanding addition to socially distant OEs. This video presentation focuses on three important areas:

1. Best practices for collecting and managing accurate employee contact information (and why now, this is more critical than ever)
2. Benefits Communication Best Practices
3. Benefits Enrollment Considerations

Our Wellness Practice has released a Wellness Advisory entitled Obesity: America’s Covid-19 Achilles Heel. This comprehensive Advisory highlights that obesity is a significant risk factor for severe Covid-19 complications, why obesity impacts the severity, and most importantly, steps Employers can take to help employees.

Proposed Legislation

Pandemic anxiety keeping you up at night? Perhaps we can help with some light nighttime reading – here are 1,815 pages of legislative text of the “Heroes Act” totaling $3 trillion (with a ‘t’!) for the next round of COVID relief proposed today by Speaker Nancy Pelosi and other top Democrats in the House.

Want the cheat sheet? Here is the 90-page summary, and if that is too much for you, here is a solid Bloomberg analysis. Headlines for the employee benefits market include:

• Fully funded private employer insurance premiums for laid-off or furloughed workers between March and next January; and
• Codification of free insurer coverage for COVID patients with no out-of-pocket expenses.

Employers, though, won’t like the bill’s expansion of COBRA benefits for workers through next January—an administrative nightmare for the employers with a retroactive open enrollment window. Kate Jensen, our benefits-law expert at Steptoe & Johnson, notes that even if employers are made whole financially with tax credits, “they could be overwhelmed trying to administer this thing on very short notice.” Hard to keep up with former employees if they don’t want to be kept up with.

We are not engaged in the practice of law, and the foregoing is not intended as legal advice nor is it intended to replace any legal opinion from counsel. We recommend that you consult with your attorney or tax advisor regarding any issues contained herein. The foregoing is not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties.

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.