Governor Andrew M. Cuomo announced a new directive by the State Department of Financial Services requiring New York health insurers to waive cost-sharing associated with testing for novel coronavirus (COVID-19) including emergency room, urgent care, and office visits. 
The Governor also announced New Yorkers receiving Medicaid coverage will not be expected to pay a co-pay for any testing related to COVID-19. These actions will help ensure that cost does not serve as a barrier to access to COVID-19 testing for any New Yorker. Currently, all COVID-19 tests being conducted at the State’s Wadsworth Lab are fully covered. 

State & Federal Responses to COVID-19

Below is a summary of recent legislation and responses to COVID-19. This information is subject to updates and will be revised as necessary.

To view and download a full copy of State and Federal responses, click the link below:

Emergency COVID-19 Paid Sick Leave (New York State Law)

Effective retroactively to January 1, 2020 and will become secondary to the Federal Families First Coronavirus Response Act (below) when it takes effect on April 1, 2020

-Applies to ALL employers in New York State
-Applies specifically to employees who are subject to an order of mandatory or precautionary quarantine issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order due to COVID-19
-Does NOT apply to non-essential workers required by the State to stop working – this is defined differently than a quarantine order
-Does NOT apply to employees that are voluntarily quarantined based solely on their own discretion
-Does NOT apply to employees that are able (or healthy enough) to work remotely or by other means
-Employers cannot require employees to use PTO or other employer provided sick leave before taking this benefit
-Additional resources from New York State: https://paidfamilyleave.ny.gov/covid19

Families First Coronavirus Response Act (Federal Law)

Effective April 1, 2020 – December 31, 2020

-Applies to ALL employers with under 500 employees*
*There is an exemption for employers under 50 if compliance with the law will impact the viability of the business. The Secretary of Labor will issue additional guidance for who will fall under this exemption.
-Applies to ALL employees, regardless of how long they have worked for the employer (no waiting period for new employees)
-Does NOT apply to employees able (or healthy enough) to work remotely
-Does NOT apply to health care professionals and emergency responders
-Amounts paid by the employer pursuant to this act will be reimbursable by the IRS in the form of a tax credit
-Employer contributions to health insurance premiums will also be reimbursable under this Act
-Additional resources from the IRS: https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus
-Q&A from the DOL: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

FAQs on COVID-19

Does the Family and Medical Leave Act (FMLA) leave apply for employees or immediate family members who may contract coronavirus?

Yes, assuming that the FMLA applies to the employer, coronavirus would qualify as a “serious health condition” under FMLA, allowing an employee to take FMLA leave if either the employee or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well. State Paid Family Leave law may provide additional leave benefits.  This would only apply in the case of actually contracting the disease, not a preventive quarantine or office closure.

President Trump has recently signed the Federal FMLA expansion bill.

Under this bill, employers must offer:

Two weeks (10 days) of paid sick leave

 for COVID-19-related reasons for eligible full-time employees. 100% of employer costs are offset for providing this mandated paid sick leave. Under the paid sick leave provision, employees who are unable to work (or telework) may take leave if they:

-are subject to a Federal, State, or local quarantine or isolation order related to COVID-19 (100% of pay capped at $511 per day).

-have been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (100% of pay capped at $511 per day).

-are experiencing symptoms of COVID-19 and seeking a medical diagnosis (100% of pay capped at $511 per day).

-are caring for an individual who is subject to a quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (2/3 pay capped at $200 per day).

-are caring for a son or daughter if the school or place of care for the child has been closed, or childcare provider is unavailable due to COVID-19 precautions (2/3 pay capped at $200 per day).

-or are experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services (2/3 pay capped at $200 per day).

Under the sick leave provision, individuals who are working part-time or hourly are also eligible for paid sick leave which is to equal the number of hours the employee works on average over a two-week period.

Ten weeks of paid family leave (12 weeks total)

 for an employee with a minor child who is unable to work (or telework) in the event of the closure of the child’s school or place of care due to COVID-19 precautions. 100% of employer costs are offset for providing this mandated paid family leave. Under the expanded paid family leave provision, the benefits are as follows:

-The first 10 days are unpaid, but the employee can use the 10 days of paid sick leave during this time.

-The benefit must replace at least two-thirds of the employee’s wages up to a maximum of $200 per day (and $10,000 in aggregate) and reflect the number of hours an employee would otherwise be normally scheduled to work.

-This 12 week period does not extend any time under the FMLA act, it simply adds another reason for leave and specifies payment.

-The Act allows an employer of an employee who is a health care provider or an emergency responder to elect out of providing paid family leave to these employees

-The Labor Department will have the authority to exempt from the paid family leave requirement small businesses with fewer than 50 employees if the requirement to provide leave would jeopardize the viability of the business.

Who is eligible for PFL?

To be eligible for Paid Family Leave, the employee must have worked at least thirty calendar days for the employer before they were impacted by COVID-19. All employees of an employer are eligible for paid sick leave.

How carriers treat actively at work at reinstatement

We are seeing some flexibility in regard to defining actively at work.

-For some carriers, a temporary furlough or self-quarantine would allow an employee to still be considered actively at work, and remain covered on their benefits

-Many carriers are planning to relax reinstatement provisions

-Employees who are temporarily laid off and later return to active work will be able to be reinstated without waiting periods or pre-existing condition limitations

-No two carriers are addressing this exactly the same, so please call us with any questions. 

It is important to note, we are seeing flexibility during this time of crisis, so if you have an outcome you want to achieve, make sure we know so that we can push hard for it!

Telehealth

-Potential longer wait times

-Enhanced services, including COVID-19 advisement and expansion of Medicare access to telehealth

The federal government expands Medicare coverage for telehealth during emergencies

Existing Medicare Fee-For-Service Reimbursement

The lack of Medicare reimbursement for telehealth is a key roadblock to the wider adoption of telehealth. For decades, Medicare reimbursement for telehealth services was limited to certain circumstances. A patient receiving telehealth services was required to be at an “eligible originating site,” meaning the patient had to be located in a rural area and in a medical facility. [1] The patient’s home was not considered an eligible originating site. In other words, telehealth services provided to a patient located at home were not reimbursable by Medicare under this framework.

Medicare expanded reimbursement for telehealth services incrementally over the past few years. For example, it allowed reimbursement for (1) brief, patient-initiated communications with a health care practitioner, known as “virtual check-ins” with existing patients and (2) non-face-to-face, patient-initiated communications through an online patient portal, known as “E-Visits.” The most recent appropriations bill removed key restrictions imposed upon virtual care to address the COVID-19 national emergency.

Congressional Expansion of Telehealth to Curb Coronavirus

As part of the federal government’s initial response to the growing pandemic, the bi-partisan Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 appropriated $500M to telehealth reimbursement, opening the door for the Centers for Medicare & Medicaid Services (CMS) to expand telehealth coverage. The new law amended Section 1135 of the Social Security Act by authorizing the Department of Health and Human Services (HHS) to issue waivers that remove traditional limitations for telehealth in an emergency area during an emergency period. Under the statute, the telehealth waiver authority was automatically triggered by the COVID-19 pandemic.

CMS Guidance on “Blanket” Telehealth Waiver Under Section 1135

On March 16, 2020, CMS exercised its newly granted authority under Section 1135 of the Social Security Act (Section 1135 waiver) to expand telehealth services during the COVID-19 emergency. Clinicians can bill immediately for dates of service starting March 6, 2020. The Section 1135 waiver allows for the following:

  • Patient’s homes or another facility can be an originating site. First, the “eligible originating site” requirement no longer needs to be satisfied, meaning that telehealth services may be provided to Medicare beneficiaries regardless of patient location—including at the patient’s home or a physician’s office, hospital, nursing home, or rural health clinic. Under the Section 1135 waiver, Medicare beneficiaries will be able to visit with their doctor from their home, without having to go to a health care facility, and can better avoid putting themselves and others at risk.
  • Smart phones. The Medicare program’s prohibition on telephones was removed for the duration of the outbreak. Current Medicare rules do not permit telephones to be used for telehealth services. Now, so long as the telephone has audio and video capabilities used for two-way, real-time interactive communication, it can be utilized during the COVID-19 pandemic.
  • Wide range of telehealth services available. Notably, the legislation applies to telehealth services during this period without regard to the treatment or diagnosis of the patient. Medicare beneficiaries may receive a range of telehealth services, including typical office visits for evaluation/management, mental health counseling, and preventive health screenings.
  • New patients are likely permissible. On the issue of whether providers can be reimbursed for telehealth services provided to a new patient (i.e., through the emergency department), CMS is asking providers to ignore the statutory language that limits the waiver to current patients. The statutory language requires that there be a pre-existing relationship with the patient receiving telehealth services. CMS assures providers that it will not conduct audits to verify that such a prior relationship existed for claims submitted during this emergency period.

Employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by New York state due to COVID-19 will be provided with job-protected leave following the schedule below:

In addition, for any periods of quarantine or isolation during which the employee is not receiving paid leave from his or her employer, the employee will immediately be eligible for paid family leave and disability benefits under the respective statutes. To this end, the statute will: (1) expand the definition of “disability” for purposes of the workers’ compensation law to include “the inability to do work because of a mandatory or precautionary order of quarantine after the employee has exhausted all paid sick leave,” which will entitle eligible employees to a percentage of their average weekly wages, up to a maximum of $2,043.92 in benefits per week; and (2) expand the definition of “family leave” for purposes of the workers’ compensation law to include (a) leave taken to comply with a mandatory or precautionary order of quarantine or (b) to provide care for the employee’s minor, dependent child who is subject to a mandatory or precautionary order of quarantine, which will entitle eligible employees a percentage of their average weekly wages up to a maximum of $840.70 in benefits per week.

The statutory leave and benefits set forth above will only be available to employees who have been officially quarantined or isolated by the government; they shall not be available to employees who are in voluntary quarantine or isolation, who merely fear they have been infected by the virus, or who object to reporting to work for fear of exposure to the virus. In addition, the law will not be applicable to employees who have been quarantined or isolated, but who are asymptomatic, not yet diagnosed with any medical condition, and are physically able to work remotely. It further does not contemplate any benefits for employees who are home caring for their children due to school closures precipitated by the coronavirus pandemic.

The proposal also expressly excludes from benefits any employee who has traveled to a country for which the Centers for Disease Control and Prevention has a level two or three travel health notice, provided that the travel was not taken as part of the employee’s employment or at the employer’s direction, and provided further that the employee had notice of the CDC warnings and that he or she would be ineligible for benefits under this statute. Any employee denied benefits as a result of such travel, however, they must be permitted to use their existing accrued but unused paid time off balances for this purpose.

The proposed statute is clear that the leave it requires is in addition to any sick leave or paid time off already provided by the employer, and employers are prohibited from charging any employee’s existing balance of accrued paid time off for this purpose.

Would I need to pay workers’ compensation for employees who contract coronavirus?

Perhaps, if the employees contracted the disease in the course of their employment. Does the employees’ work require them to be exposed to persons who are infected? Typically, health care workers fall into this category. If an employee incidentally contracts the disease from a co-worker, there likely will be no workers’ compensation liability. If there is workers’ compensation liability, employers are responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.

Would I need to pay my employee’s disability benefits if they contract the coronavirus?

Yes, if such payments are provided in an employer’s benefit plan. Employers should review the limits of coverage in the benefit plan to ensure they have competent medical resources to administer the program.

Does the Americans with Disabilities Act (ADA) restrict how I interact with my employees due to the coronavirus?

Not if it’s a pandemic. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition. WHO raised its risk assessment of the coronavirus to its highest level on Feb. 28, according to CNBC.

The Equal Employment Opportunity Commission has issued guidance to distribute to the workforce in the event of a global health emergency. In the guidance, it states, “if the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.”

The ADA protects qualified employees with disabilities from discrimination. A disability may be a chronic physical condition, such as difficulty breathing. Employees may be entitled to an “accommodation” such as leave or be allowed to work remotely for a limited period. Employees who have contracted the virus must be treated the same as noninfected employees, as long as the infected employees can perform their essential job functions. If the employee poses a health or safety threat to the workforce, the employer may place the employee on leave.

Has the Occupational Safety and Health Administration (OSHA) provided guidance on how to handle coronavirus?

OSHA has issued a fact sheet regarding protecting workers in the case of a global health emergency. Employers should train employees on the following:

-Differences between seasonal epidemics and worldwide pandemic disease outbreaks.

-Which job activities may put them at risk for exposure to sources of infection.

-What options may be available for working remotely, or how to utilize an employer’s flexible leave policy when employees are sick.

-Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people.

-Good hygiene and appropriate disinfection procedures.

-What personal protective equipment is available, and how to wear, use, clean and store it properly.

-What medical services (e.g., post-exposure medication) may be available to them.

-How supervisors will provide updated pandemic-related communications, and where employees should direct their questions.

For additional questions and updates, feel free to call Bond or check out these helpful links:

https://www.benefitspro.com/2020/02/28/coronavirus-employment-law-and-you-412-94425/?kw=What%20to%20know%20about%20coronavirus%20and%20employment%20law&utm_source=email&utm_medium=enl&utm_campaign=benefitsmanagerpro&utm_content=20200303&utm_term=bpro&slreturn=20200203115653

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-information-and-faqs.aspx

https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html

https://www2.monroecounty.gov/health-coronavirus

***All information by Bond Benefits Consulting on this site is for educational purposes only as well as to provide general information and understanding of the content, not to provide specific legal advice. For legal advice, please contact your attorney.