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Summary of Answers at 8 on March 31st

This week’s answers at 8 focused on reviewing:

  • Who makes up Group 4? (Vaccinations for Group 4 begin March 31st and the entire population of NC over the age of 16 will be eligible April 7th.)
  • Leave provisions of ARPA
  • Cobra subsidies under ARPA

Legal Updates:

  • Reminder that NC Executive Order 204 is now in effect, which increases capacity limits for certain industries and removes the alcohol sales limits. Keep in mind that the mask mandate is still in effect and social distancing still should be followed in your workplaces. 
  • Effective March 31st, Vaccines are open to all people in Group 4. Beginning April 7th, the vaccine will be open to all North Carolinians over age 16.
  • The EEOC has announced that it will open its website for EEO-1 component data collection (for 2019 and 2020) on April 26th with a deadline of July 19th.

The American Rescue Plan Leave Provisions (voluntary extensions of FFCRA leave April 1st – September 30th)

Pending further guidance (which has been requested) from the DOL:

  • For employers who choose to continue the emergency paid sick leave, 80 hours must be made available to employees on April 1st. Based on current legal guidance, this bucket must be allowed in its entirety. There is no carryover of EPSL time not previously used.
  • As of now, there is not a new bucket of time under EFML, but that may change if we receive DOL guidance.
  • If you extend EPSL or EFML, legal thoughts are that you need to allow for the entire time frame (full 6 months); however, the DOL has been asked to provide additional guidance.
  • EPSL and EFML can now both be used for the same set of EPSL reasons.
  • Two additional reasons have been added to allow for use of EPSL and EFML: COVID-19 vaccination or recovery from any illness, disability, condition or injury related to the vaccination; or awaiting results of a diagnostic test or medical diagnosis for COVID-19. This includes employer-requested tests and tests due to exposure.
  • All time paid under EFML is at 2/3 pay; some reasons under EPSL are paid at 100%, to include the new ones, and the overall cap has been increased to $12K for EFML.
  • If you extend both the EPSL and EFML, employees can have up to 14 weeks of paid time off.

American Rescue Plan-Cobra Subsidies:

  • For a limited period, the ARPA requires employers to cover 100% of eligible employees’ cost of continuing group health coverage under COBRA for up to six months during the subsidy period (April 1st– September 30th).
  • Eligible employees are those who have lost coverage under their employer’s healthcare plan due to a reduction in hours or involuntary termination (for reasons other than gross misconduct) who elect COBRA continuation. Note that the reason does have to pertain to Covid, as long as it is involuntary.
  • Those eligible to receive the COBRA subsidy include eligible employees and covered dependents who:
  • become eligible during the subsidy period, April 1st to September 30th;
  • are already enrolled in COBRA and it will continue past April 1st;
  • did not elect COBRA when it initially became available to them and would be eligible for COBRA after April 1st otherwise,
  • elected COBRA initially but let the coverage lapse and would be eligible for COBRA after April 1st otherwise.
  • Individuals are not eligible for subsidies if they are either eligible for coverage under another employer’s group health plan or under Medicare. These individuals should notify the plan if they are ineligible for these reasons.
  • The subsidy is provided by the employer who may take a dollar-for-dollar Medicare tax credit. 
  • The subsidy applies to both insured and self-insured plans subject to COBRA, as well as self-funded and insured plans that are not subject to COBRA but are subject to continuation coverage under state law. (Does not apply to federal government).
  • The employer has the option to allow these eligible individuals AND (if one you must provide the other) active employees the opportunity to elect a different coverage option – they have 90 days after notice of the enrollment option is provided to make the election. Must be the same premium (or less). You may not offer this option for alternate coverage that offers only excepted benefits, or QSEHRAs/health FSAs.
  • Certain notifications are required of plan administrators. Check with your COBRA administrator to see if this is their responsibility or yours, especially for past elections:
  • Election notice. For otherwise qualified individuals who (1) previously failed to elect COBRA, (2) discontinued COBRA coverage, or (3) have yet to elect COBRA coverage but still remain eligible to do so under the usual COBRA rules, a COBRA election notice must be sent with specific detailed information about the subsidy within 60 days of April 1, 2021. The DOL should have this out by April 10th – they also say that you can simply amend your current notice by including information about the subsidy.
  • Qualified individuals may elect COBRA between April 1, 2021 and 60 days after getting notification of the extended election period. Coverage will begin with the first monthly (or shorter) period of coverage beginning on or after April 1, 2021.
  • Premium assistance notice. For those entitled to elect COBRA during the subsidy period, a COBRA election notice must be sent with specific detailed information about the subsidy. Model notices are required to be provided by the DOL within 30 days of enactment of the ARPA. 
  • Subsidy termination notice. The plan administrator must provide notice alerting an individual that the subsidy period is ending between 45 and 15 days before it does– unless coverage will terminate otherwise due to the individual’s eligibility for other coverage. Model notices are required to be provided by the DOL within 45 days of enactment of the ARPA.

CDC Guidance:

In the case of testing asymptomatic employees for COVID on a regular basis, which may help slow the spread, particularly in workplaces with increased risk of COVID to the public such as restaurants, retail stores or communities where there is substantial transmission, the CDC recommends:

  • Initial testing of all workers before entering a workplace
  • Periodic testing of workers at regular intervals (weekly is recommended)
  • Targeted testing of new workers or those returning from a prolonged leave of absence

This testing does not replace COVID-19 mitigation measures such as vaccinations, mask-wearing, social distancing, etc. Click here for more information from the CDC.

Employers who require this testing must pay for both the cost of the test as well as the employee’s time spent getting tested.

Quarantine after vaccination (no guidance on time period):

  • Non-healthcare/non-congregant setting: Fully vaccinated people (2 weeks from second or only shot) with no COVID-like symptoms do not need to quarantine or be tested following an exposure to someone with suspected or confirmed COVID-19, but should monitor for symptoms of Covid for 14 days following an exposure. If they experience symptoms, they should isolate themselves from others and be tested.  
  • Healthcare, congregant settings, and “at risk industries” have more stringent rules that are linked to this page.

Quarantine after infection: Similar to non-healthcare settings but must quarantine if past 3 months after

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