It is every employer’s worst nightmare: an unsuspecting employee receives an email in the early morning from an individual claiming to be his supervisor. The email asks him to follow up on an urgent work assignment that needs his immediate attention. With multiple deadlines fast approaching, he does not think twice. He opens the email and attached file, and prepares to work. Within minutes, the entire system—including all confidential and proprietary data, timekeeping records, and payroll records stored in it—becomes inoperable and shuts down. The attacker delivers a single message to the employer: pay the ransom in exchange for the data or risk losing all the files.
There has never been an ERISA requirement to include elective abortion medical coverage in ERISA group health plans. Even so, many nationwide employers choose to offer it alongside non-elective abortion medical coverage. Among those employer plan sponsors, there is new concern about how plan participants can practically access this covered medical care, if expensive travel to other states becomes necessary. Between concerns raised by the Supreme Court’s ruling in the Dobbs v. Jackson case (holding that the United States Constitution does not confer a right to abortion) and a sharp increase in state legislation restricting abortion care, growing numbers of these employers want to proactively address new geographic gaps in healthcare access. As employers continue to consider design options, they will need to evaluate a number of factors, including:
Background checks are a great idea—unless you fail to do them correctly. Mistakes can be costly. One online retailer paid $5 million to settle a class action filed by 454,000 job applicants alleging violations of the Fair Credit Reporting Act (FCRA), a key federal law governing the conduct of background checks. The number of such lawsuits continues to rise: it doubled between 2009 and 2018, and every year since then has marked a new high. There were 5,406 FCRA lawsuits filed in 2021 alone and, based on the 1,500 filed in the first three months of 2022, this year there will be even more. Accordingly, now is the time to take a careful look at your company’s hiring documents and the way you screen potential employees.
The Biden Administration’s proposed budget for fiscal year 2023 serves as a warning to all plan issuers and administrators that enforcement of the Mental Health Parity and Addiction Equity Act (MHPAEA) is a top priority for the federal government. The proposed budget reflects a substantial and sustained commitment to ramp up enforcement efforts, with specific funding for MHPAEA audit activity, including $275 million for the Department of Labor (DOL) over a 10-year period and $125 million for state grants to support their MHPAEA enforcement efforts. The Biden Administration has also proposed that Congress: (1) grant the DOL the ability to pursue civil monetary penalties against entities that provide administrative services to group health plans and do not comply with the MHPAEA; and (2) amend ERISA to allow participants and beneficiaries to recover losses due to parity violations through private rights of action. Plan issuers and administrators should take heed of these developments to get ahead of enforcement efforts and review their procedures, documents, and activities to ensure they meet the government’s stringent requirements.
The peak of COVID-19 infections may have passed, but the mental health effects of the pandemic continue to be felt, and government agencies are taking note. The U.S. Department of Labor (DOL) issued new guidance during Mental Health Awareness Month in May, reminding employees with mental health issues of their rights under the Family and Medical Leave Act (FMLA). And the Equal Employment Opportunity Commission (EEOC) last December added a section to its COVID-19 Technical Assistance, expressly noting that COVID may qualify as a disability under the Americans with Disabilities Act.
There is plenty of evidence to support their concerns about mental health issues being on the rise. A March 2022 study by the World Health Organization indicated that the pandemic has led to an increase in mental health problems, including widespread depression and anxiety. It also noted that before COVID-19, only a minority of people with mental health problems received treatment, and that the pandemic has further widened the treatment gap. In issuing its May guidance, the DOL also focused on the treatment gap, noting that “many people coping with mental illness may face barriers to treatment including social stigmas, a lack of available services or financial resources.” The DOL cited reports by the National Institute of Health estimating that nearly one in five U.S. adults live with a mental illness, with only about half receiving the help needed.
Government agencies are taking note, and so should employers.
There have been over 240 mass shootings nationwide in 2022 so far – more shootings than days of the year. Many of these shootings involve workplace violence. For instance, four of the victims in the recent Buffalo shooting were employees of the grocery store where the attack occurred, and two teachers were among the victims in the recent school shooting in Texas. These are only the latest; among many others in recent years, there was a shooting in Milwaukee in which a brewery employee killed five people; a shooting in which a railyard employee in Northern California killed nine people; a shooting at the Santa Clara Valley Transportation Authority in which an employee killed nine people and then himself; and a shooting in Texas in which an employee killed one person and wounded five others in a cabinet manufacturing facility.
The rise in workplace violence, and violence in general, should prompt employers to consider what they can and should do to protect their employees, customers, and business. It is especially important to do so now, as more and more employers are requiring their employees to return to work in person following the pandemic.
With the rise of remote work, employers are increasingly considering measures to monitor employee’s work, whether for security purposes, or to monitor productivity. But employers take note: some states are starting to weigh in by passing laws that limit employer monitoring, or require employers to notify employees that they are monitoring them. And recording employee calls is a whole separate issue governed by state law. In some states, only one party need consent to recording the call, while in others all parties must consent.
Last year we warned that the NLRB pendulum was swinging pro-union, but even we could not have predicted just how swiftly the pendulum swing would happen. In the past year alone, General Counsel Jennifer Abruzzo of the National Labor Relations Board (NLRB) has continued to forcibly push the pro-union agenda by revealing the NLRB’s intent to explore doctrinal shifts in numerous key areas of labor law, and opining on numerous issues ranging from her belief that some student-athletes at the collegiate level are “employees,” to urging regional staff to aggressively seek injunctions under Section 10(j) of the National Labor Relations Act. The bottom line is that defending against a 10(j) petition is a costly undertaking for employers, and therefore, employers need to be aware of the consequences of taking actions that could invite a 10(j) petition.
Last year was the deadliest weather year in a decade for the contiguous United States, according to the National Oceanic and Atmospheric Administration, and climatologists predict that 2022 will be the hottest year on record. Employers should pay particular attention as we head into summer. With heat already being the leading cause of death among all weather-related phenomena, climate change only increases the frequency and intensity of extreme heat conditions and the risk of related illness and injury. Employers across industries should already be familiar with their obligations to keep employees safe from heat-related illnesses, injuries, and death in both outdoor and indoor workplaces. The Occupational Safety and Health Administration (OSHA) issued enforcement guidance on this issue last fall, but now an OSHA standard is coming. OSHA standards are mandatory rules that must be followed, whereas guidance offers recommendations for compliance with general workplace safety and training initiatives where standards have not been defined.
Healthcare facilities and other entities receiving federal financial assistance can breathe a little easier after a U.S. Supreme Court decision issued last week barring the recovery of emotional damages for certain discrimination claims. Continue Reading