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Back to Work: Employer Documents

The return of the workforce brings a renewed set of documentation requirements for employers, particularly those employers with fewer than 500 employees and any companies who received PPP funds. Back in March, employers needed a COVID-19 Leave Form and a Remote Work Policy, but things have changed. 

With the ever-increasing rules, orders, interpretations, employee questions, and customer expectations, it is imperative that businesses have the necessary documents in place. 

What are the necessary documents? Companies will want to have policies and forms in place to minimize the risk of liabilities and to best manage the workforce. Because of the uncertainties around the spread of COVID-19 and its testing and treatment, companies are more at risk for an extension of liability or a regulatory intervention. 

What do we specifically need? And why? Keeping in mind the volatility of the laws, rules, and regulations, the safest practice is a Back to Work set of forms and policies to include: 

  • Return to Work Notice and Form
    With furloughs, terminations, PPP loans, and expansive unemployment, employers must track which employees are refusing to return to work, as a best practice, and to extinguish any continuing obligation to the employees. Additionally, under PPP forgiveness exception rules, businesses must maintain a written record if an employee rejects a good faith return to work, the employee was fired for cause, the employee voluntarily resigned, or the employee voluntarily requested a reduction of hours. 
  • Waiver of Liability
    The state orders regarding workforce and workplace requirements can create additional duties owed to business invitees. A Waiver of Liability for customers, while not foolproof, will provide an important line of defense to frivolous lawsuits alleging COVID-19 exposure at your business. 
  • COVID-19 Testing Consent Form
    As an established precautionary measure, employers will want to engage in some testing or results review for their employees to prevent an outbreak in the workplace. For healthcare providers, this is a recommended best practice with respect to obtaining patient consent and informing patients of the risks associated with COVID-19 when seeking treatment. A Consent Form will set out the necessary parameters for testing by both employers and healthcare providers. 
  • Childcare Leave (Summer Vacation) Form
    Under the FFCRA, employees may be eligible for Emergency Paid Childcare Leave.  However, that leave is only applicable to school and care closures due to COVID-19. It does not apply to school closures due to Summer Vacations. During the summer months, employees will need to provide supplemental information regarding their requests for Childcare Leave. 

  • Workplace Policy on COVID-19 Safety and PPE
    A top question we receive from employers is “What do we do if an employee refuses to wear a mask, wash hands, keep distance, etc.?” The Workplace Policy will address the mandatory requirements and the potential for disciplinary actions.

  •  OSHA Standards Policy
    More and more groups are calling on OSHA to implement COVID-19 safety standards beyond the General Duty Clause. As OSHA introduces federal requirements, employers must be able to implement and adapt through an OSHA Standards Policy. 
  • Internal COVID-19 Reporting Form
    When two or more employees raise a concern about workplace safety, they are arguably engaging in a “protected concerted activity” protected by the NLRA. The number of retaliation, whistleblower, and public policy claims are on the rise. It is prudent and imperative for employers to have reporting policies and procedures in place, document and investigate any COVID-19 concerns of the employees and prevent retaliation to avoid the potential claims. 
  • Away from Workplace COVID-19 Policy
    This is another major concern for employers. Even if employees are monitored at work, what can stop them from engaging in risky behaviors away from work? An off-duty conduct policy isn’t fail-safe, but it will help set expectations for employees’ actions away from work that may affect the workplace. If employees travel to hot-spot areas, or party with large groups of people, that creates risk for the employer and coworkers, and this Policy announces the employer’s right to restrict the employee from returning to work until safe from exposure.

If you need assistance with any or all of these recommended Back to Work Policies and Forms, please contact Jeffrey C. Miller at 216.658.2323 or jcmiller@bmdllc.com or Amanda L. Waesch at 330.253.9185 or alwaesch@bmdllc.com or your attorneys with Brennan Manna & Diamond. A Back to Work package will be offered to existing L+E Advisory and Healthcare Advisory clients.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.