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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.

Workers’ Compensation Claims and COVID-19

Can one of my employees file a workers’ compensation claim if they claim that they contracted coronavirus at work? We get that question a lot. Yes, they can, but you should oppose any application for coverage if you receive one. Generally, the claim will not be granted unless the employee has a job that poses a special hazard or risk of exposure to the virus and the employee can prove that he or she contracted the virus at work.

Ohio State Dental Board Implements Teledentistry Rules

Ohio law defines “teledentistry” as the delivery of dental services through the use of synchronous, real-time communication and the delivery of services of a dental hygienist or expanded function dental auxiliary pursuant to a dentist’s authorization.[1] The law requires a dentist who desires to provide dental services through teledentistry to apply for a teledentistry permit from the Ohio State Dental Board (“OSDB”).[2] Pursuant to the mandate under Ohio Revised Code 4715.436, the OSDB is implementing the following teledentistry permit rules and requirements (to be set forth under Ohio Administrative Code Chapter 4715-23). These regulations, which were subject of a public hearing on February 19, 2020, are effective on May 30, 2020.

HHS Addresses Drug Manufacturer Coupons on Out-of-Pocket Limits

On May 7, 2020, the US Department of Health and Human Services (“HHS”) announced their Notice of Benefit Parameters for 2021 in which HHS addressed the application of prescription drug manufacturer copay coupons towards a patient’s out-of-pocket limit. Under this guidance, HHS will permit, but not require, plans and insurers to count direct support offered to enrollees by drug manufacturers (i.e., coupons) for specific prescription drugs toward the annual limits on cost-sharing, regardless of whether a generic equivalent is available.

Important Updates, Deadlines, and Clarifications for the HHS Provider Relief Funds

On May 20, 2020, HHS made important updates and clarifications regarding the General Distribution payments to providers. Between April 10, 2020 and April 24, 2020, HHS distributed an initial $30 billion to providers based on the provider’s 2019 Medicare fee-for-service receipts. These funds were distributed automatically and providers did not need to submit an application in order to receive these funds. The funds were originally touted as a “no strings attached” stimulus payment reserved for healthcare providers. But HHS issued a 10-page Terms and Conditions and required that providers sign an attestation confirming receipt of the funds and agreeing to the Terms and Conditions.

Reopening & Social Media: Tips for Businesses

As the country starts to reopen, businesses are under great pressure to keep employees and customers safe. Even if a business follows every reopening requirement, there will inevitably be scrutiny from within and outside the organization. And, in this world of social media, perception tends to become reality. Below are a few practical tips to avoid attracting negative press while restarting your business.