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Dealing with COVID Vaccination Status Friction Points with Employees

The controversy over COVID-19 vaccine mandates in the workplace continues growing and human resources are sounding the alarm on how employers should approach the matter.

While the Equal Employment Opportunity Commission and impending OSHA regulations will provide some cover to employers who want their employees to get vaccinated, they need to make sure that they follow certain steps in dealing with those who refuse to have a jab, won’t say if they are vaccinated or are claiming a religious or medical exemption from getting inoculated.

The California employment law firm of Shaw Law Group LLC. recently held a webinar on a number of friction points that could get employers in hot water. Here are some tips to avoid getting sued:

  • If you require your staff to disclose their vaccination status, treat those who refuse to divulge their status as unvaccinated. There is no point in continuing to hound someone about giving the information if they don’t want to. Just assume they are unvaccinated for the purposes of your office rules.
  • If you have set rules requiring your workers to be vaccinated, do not automatically put someone who won’t get vaccinated on a leave of absence if that is your policy. Instead, treat it like an Americans with Disabilities Act request and enter into a meaningful discussion if they request accommodation.
    During this time, you have to consider alternative accommodations, such as requiring them to always wear a mask at work and submit to weekly testing.
  • If you are going to accommodate workers who don’t get vaccinated, you as the employer are obligated to cover the costs of such accommodations (like those in the above bullet point). That also applies to employees who refused to get vaccinated on religious or medical grounds.
  • Have a process in place for handling requests for accommodations. A request for religious accommodation can put the employer in a quandary since they don’t want to require proof of what part of the person’s religion requires them not to get vaccinated. Shaw Law Group warns: “And, do not question the sincerity of an employee’s stated religious belief, unless you have an ‘objective’ reason to do so.”
  • There are no laws or regulations requiring employers to provide a “reasonable accommodation” for political, social or secular personal beliefs that may affect why an employee refuses to get vaccinated.
  • If you have an employee who refuses to participate in the accommodation process and provide documentation backing up their religious or medical exemption request, deny the request.

HIPAA Privacy Rule considerations

Meanwhile, the Department of Health and Human Services’ Office for Civil Rights has issued guidance regarding how the HIPAA Privacy Rule affects employees’ disclosures of their COVID-19 vaccination status.

Employers can require employees to disclose whether they have received the COVID-19 vaccine, according to the guidance. That includes requiring them to disclose their status to a client or another third party like a vendor.

Why is this? HIPAA’s Privacy Rule does not regulate the health information an employer can request from its employees as part of the terms and conditions of employment.

Employers who require staff to provide proof of vaccination status are required to keep all documentation or confirmation of vaccination status confidential, under this rule. Any such documentation must not be stored in the employees’ personnel files and must be kept separately.

Finally, your employees are free to disclose their vaccination status to other employees, customers, vendors or trade partners, as the Privacy Rule does not apply to such circumstances.

The takeaway

As more Americans get vaccinated, there is also a significant portion of them that will continue refusing to get inoculated for a number of reasons.

To avoid being sued for overstepping your authority as an employer, if you are requiring vaccinations, make sure you put in place procedures for handling requests for religious or medical accommodation.

You’ll also need to decide how to handle employees who won’t divulge their vaccination status or are refusing vaccination on grounds other than religious or medical reasons.

Finally, if you decide not to require staff to get vaccinated, decide how you will accommodate unvaccinated workers in the workplace, such as requiring full-time masking and weekly COVID-19 testing.

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Helping Your Employees Find the Right Plan for Them

Studies have found that nine out of 10 employees opt for the same benefits every year and that around a third of workers don’t fully understand the group health plan benefits they are enrolled for.

Staying in the same plan after year can be a waste of money if someone is in the wrong plan for them. And not understanding benefits can lead to wasted money as well, as workers often skip necessary appointments, check-ups and treatment regimens for chronic conditions, which in turn puts their health at risk.

As coverage has grown in complexity over the past decade, it’s important that you provide the resources for your employees to choose the health plan that is best for them. Here are three tips that will help them get the most out of their benefits.

Don’t skimp on explaining

While some employees’ eyes are bound to gloss over while someone is explaining the various plan options, their networks, their copays, deductibles and more, it pays to take the time to explain them step by step.

That means breaking the benefits down to the basics in language anyone can understand. Avoid getting bogged down in health insurance jargon and keep it simple. The simpler the better.

Don’t think of it as talking down to your employees, because there’s a good chance some of them are not familiar with how health coverage works. Encourage questions, by telling them there are no stupid questions. Invite employees to speak one-on-one with your benefits point person if they have questions they’d rather ask privately.

Make benefits communications all year long

When the new year starts and open enrollment is in the mirror, most employers don’t reach out to staff until a few weeks before the next year’s enrollment period starts.

Plan now for regular benefits communications throughout next year. Send them e-mails and materials during the course of the year that remind them to consider how their current coverage is measuring up to their needs.

This is especially important if someone’s health situation changes. They may be looking to make a change during the next open enrollment, and feeding them periodic memos about their coverage can help them educate themselves and prepare.

Communications could include explainers about cafeteria plans, health savings accounts, how to use their health benefits wisely, and more.

Know your crew

After open enrollment, run a report looking at what plans your employees are signed up for and see if they are concentrated in certain plans. Many employees when choosing health plans ask their co-workers, which often leads to them choosing a plan that is not optimum for them since there are many factors that may vary, including:

  • Their age.
  • Whether or not they are married.
  • Whether or not they have children.
  • Their health situation.

That’s why it’s important to run some analytics on your employees’ health plan choices. We can work with you to make sure that they are in the right plans and identify what might be a better alternative for them.

For example, in many cases, the younger and healthier someone is, the best choice may be a high-deductible health plan with lower premiums, tied to an HSA. Older employees and those with health conditions — those who are more likely to use medical services and be on medication — may need a plan with a lower deductible.

The takeaway

It benefits both your employees and you if your employees are in the appropriate plan for their life and health situation.

Fortunately, you can ensure that they understand their benefits by understanding their needs and helping them learn about their benefits throughout the year.

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Draft Would Help Policyholders Meet Drug Deductibles, Copays

A model measure would require health plans to include financial assistance that policyholders receive, as well as drug rebates, towards their pharmaceutical deductibles, copays and coinsurance.

Most health plans do not allow rebates and outside financial assistance to count towards a policyholder’s drug deductible, which critics assert penalizes enrollees.

The model measure introduced by the National Council of Insurance Legislators (NCOIL), a bi-partisan organization of state elected officials who specialize in insurance law, would require them to count those outlays towards coinsurance and deductibles.

It’s expected that some NCOIL members will introduce similar legislation in their home states in 2022 or in subsequent years.

If successful, such laws could be a boon for some patients who receive help from drug companies or whose drugs are eligible for rebates

This is a significant move as pharmaceuticals become more expensive and lawmakers and policymakers wrestle with how to make them more affordable and stem steep annual cost increases.

The problem

Health plans’ and PBMs’ drug formularies have different cost-sharing amounts for different tiers of drugs. The lowest amount of cost-sharing is mostly for generic drugs, some of which are even available with no copays.

There are typically at least three tiers of drugs, with the higher reserved for brand-name drugs for which there are not always generic versions available. The top tier is usually reserved for the most expensive, specialty medications.

For expensive pharmaceuticals, some drug makers will sometimes work with patient advocacy groups to fund programs that offer financial support towards out-of-pocket expenses for patients that purchase their drugs.

Drug companies will also provide rebates. But often, pharmacy benefit managers and health insurers will receive those rebates and there have been questions as to how much of them they share. And they don’t count those rebates towards the patient’s out-of-pocket maximum.

The model legislation

The model legislation is just that: a model. NCOIL has put the proposed measure on its agenda for its Nov. 18 meeting.

It’s expected that some NCOIL members — Republican and Democratic lawmakers from all 50 states — will write and help pass similar measures in their home states.

The preamble to the language in the measure states that it aims to address programs that keep cost-sharing assistance payments from counting towards a patient’s annual out-of-pocket spending limit.

That draft’s model language states: “When calculating an enrollee’s overall contribution to any out-of-pocket maximum or any cost-sharing requirement under a health plan, a carrier/insurer/issuer or pharmacy benefit manager shall include any amounts paid by the enrollee or paid on behalf of the enrollee by another person.”

Insurance companies and PBMs say that the measure would be improved if it would limit its scope to only include drugs with no lower-cost or generic alternative. That way, it would keep pharmaceutical companies from steering patients to their more expensive drugs when there are lower-cost alternatives.

Right now, there is no pending legislation at the state level, but this could be the starting point to bring some financial relief to drug plan enrollees that are either high users of prescription drugs or have been prescribed expensive medications.

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COVID-19 Home Test Kits Reimbursable under FSAs, HSAs

Under new guidance issued by the IRS, at-home COVID-19 testing kits will be considered a reimbursable medical expense under the three main health care savings vehicles offered to employees.

This new guidance adds to the list of personal COVID-19-related expenses for which employees can seek reimbursement under:

  • Health savings accounts
  • Health reimbursement arrangements, and
  • Flexible spending accounts.

This is good news as these home tests become more common during this stretch of the pandemic.

The IRS earlier announced that personal protective equipment for use in preventing infection and spread of COVID-19 is also reimbursable by HSAs, FSAs and HRAs. That includes:

  • Masks,
  • Sanitary wipes, and
  • Hand sanitizers.

What to do

If you offer one of the above savings vehicles, you may need to amend your group health plan’s language, unless the plan is drafted to reimburse all IRS-permitted expenses. In that case, you can leave it as is.

If, however, the plan lists all permitted expenses, you’ll need to amend it. If you plan to set the effective date for 2021, say Sept. 15, you should make the amendment no later than Dec. 31, 2021 for it to be effective.

Regardless of whether you have to change the plan or not, you should notify all participating staff of the change so they can take advantage of their plan if they need to.

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