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Employers on Hook for Mental Health Parity Despite New Target

The US Department of Labor (DOL) is casting a skeptical guy on health insurance companies’ inconsistent coverage of mental health and substance use disorder benefits. The DOL recently commenced litigation against an insurer to require mental health and substance use disorder coverage be on par with regular physical care.

In an article in Bloomberg Law, McDermott Partner Judith Wethall said employers are usually unaware about these violations. Self-funded employers typically simply accept whatever their third-party administrator (TPA) is offering.

“Sometimes a TPA does things behind the scenes that might violate mental health parity and an employer might not even know it,” Wethall said.

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$4 Billion in Pension Payments Returned

Even though it is the employer’s responsibility to track down former employees and let them know of leftover retirement benefits, it doesn’t always work out that way. In recent years, the US Department of Labor’s Employee Benefits Security Administration has demanded companies improve their methods for finding former workers.

In this article published by the Center for Retirement Research at Boston College, McDermott Partner Jeffrey M. Holdvogt said regulators “put a lot of pressure, in a good sense, on plan administrators to really up their games.” Holdvogt shared his comments in a May webinar hosted by the Pension Action Center at the University of Massachusetts, Boston.

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Just How Many Employers Will Mandate Vaccines?

An August Willis Towers Watson poll found that 52% of 961 surveyed companies intend to implement at least one vaccine mandate by 2021’s fourth quarter. In a poll in May, 72% of respondents said they had no plans to require vaccines.

To encourage vaccination, some employers—like Delta Air Lines—are introducing or considering company healthcare plan surcharges for unvaccinated employees. However, in this article published via Advisory Board, McDermott Partner Judith Wethall said few employers have actually “pulled the trigger” on such a move.

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Red Tape, Legal Risk Douse Fervor for Surcharges on Unvaccinated

Companies curious about a major airline’s unvaccinated healthcare premium surcharge are discovering that it may be too complex to copy. The airline recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. In this Bloomberg Law article, McDermott Partner Judith Wethall said the compliance hurdles are “tricky and kind of dilute the message.”

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OSHA Updates COVID-19 Safety Guidance for All Industries

On August 13, 2021, the US Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance documents for employers in all industries. The new recommendations echo those published by the US Centers for Disease Control and Prevention (CDC) on July 27, 2021, and build upon OSHA’s healthcare industry requirements.

In some of its most powerful language yet (and stopping just short of an absolute requirement), OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects.

Read more here.




Illinois Enacts New Noncompete and Nonsolicit Law

Illinois has enacted a new law governing restrictive covenants: Public Act 102-0358. This law outlines the requirements for valid noncompetition and nonsolicitation agreements, and enforcement of those covenants. It will apply to all agreements entered into on or after January 1, 2022.

According to McDermott’s Brian Mead and Barrick Bollman, the legislation allows an employee to recover costs and reasonable attorney’s fees if the employee prevails in an action seeking to enforce a noncompetition or nonsolicitation agreement. The legislation also requires that employers advise employees, in writing, to consult with counsel before entering into a noncompetition or nonsolicitation agreement, and that employees be afforded 14 days to review the covenant before signing.

Read more here.




Four Things To Know About COVID ‘Long-Haulers’ At Work

Research continues to shed light on COVID-19’s long-term health effects for some people, and these “post-COVID conditions” will create additional challenges for employers.

In this Law360 article, McDermott partner Carole A. Spink says employers should be aware that long-haul COVID symptoms mean additional accommodations for employees.

“As they have done throughout the pandemic, employers should have a plan for addressing potential long-term absences as a result of post-COVID effects. On the practical side, at some point employers may need to determine whether a particular situation has become such that providing a continuing reasonable accommodation would pose an undue burden,” Spink notes.

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What Should Be in a Vaccination Policy?

Employers are facing a myriad of decisions as they consider vaccination requirements for their workforces.

Mandatory vaccine policies, for example, should include rationale for why they are required, McDermott partner Carole A. Spink said in this Society for Human Resource Management article. The scope of any policy should be clearly identified and explain which employees it applies to.

Read more here.




California Requires Vaccines or Regular COVID-19 Testing for Certain Healthcare Workers and State Employees

On July 26, 2021, the California Department of Public Health (CDPH) issued a new Order that impacts healthcare and state employers in California. According to McDermott’s Michelle S. Strowhiro, Ellen M. Bronchetti and Ludia Kwon, the CDPH Order requires that almost all healthcare employers verify the vaccination status of all of their workers.

The Order also requires workers who are not fully vaccinated to go through regular COVID-19 testing at specified intervals. These facilities also must have a plan in place for tracking verified worker vaccination statuses.

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Can Employers Offer COVID-19 Vaccine Incentives for Employees?

Can employers offer incentives for employees to get a COVID-19 vaccine? In short, yes. Incentives may take many forms, such as a one-time bonus, a gift card or a few extra vacation hours. Employers can get creative.

According to McDermott’s Michelle S. Strowhiro, Judith Wethall and Ludia Kwon, there are two issues to consider when implementing a vaccine incentive program for purposes of complying with employment and benefits laws: the concepts of coercion and reasonable accommodation.

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