OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) – Temporarily Blocked

As part of President Biden’s “Path Out of the Pandemic” COVID-19 plan, the Biden Administration instructed the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to promulgate an Emergency Temporary Standard (the “ETS”) regarding mandatory vaccinations or weekly testing for large employers. On November 5, 2021, the ETS on vaccinations and testing was officially published in the Office of the Federal Register. During this past weekend, the Fifth Circuit Court of Appeals suspended the ETS, opining that the rule presents constitutional issues. However, there is ongoing litigation in that regard, and the ETS may still be upheld by the courts and go into effect soon. Therefore, while that litigation is pending, employers are well advised to take steps to prepare for the ETS’ implementation so they are ready to comply with it immediately if/when the rule is upheld by the courts. We will continue to monitor the progress of that litigation and publish further updates, as needed.

The new ETS (Federal Register :: Public Inspection: COVID-19 Vaccination and Testing; Emergency Temporary Standard) establishes requirements for vaccinations, vaccination verification, face coverings, and weekly testing to address the grave danger of COVID-19 in the workplace.

Who is Covered by the ETS? 

The ETS applies to employers in all workplaces under OSHA’s authority and jurisdiction that have a total of at least100 employees, at any time while the ETS is in effect, regardless of fluctuation in size. The 100-employee threshold factors in the number of total employees working for the organization, including employees working in separate locations.

Employees who do not report to a workplace where other individuals (e.g., co-workers or customers) are present, employees working remotely, and employees working entirely outdoors are not covered by the ETS. Additionally, the ETS does not apply to workplaces covered under (a) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or (b) settings subject to the Emergency Temporary Standard for healthcare employers (Subpart U – 29 CFR §1910.502).

Since federal OSHA does not have jurisdiction over public employees in states without OSHA-approved State Plans, and Massachusetts does not have such a State Plan, the ETS does not currently cover public employers in Massachusetts. However, given Governor Baker’s Administration’s position on mandatory vaccinations for state employees, the ETS could be adopted in Massachusetts at a later time and subject to enforcement by the Massachusetts Department of Labor.

What Does the ETS Require? 

Employer Policy on Vaccination, Testing, and Face coverings. Under the ETS, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy OR enforce weekly COVID-19 testing and facemask requirements for unvaccinated employees. The ETS does not require employers to pay for any costs associated with testing. However, employers may be required to pay for testing under other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. In addition, the ETS does not prohibit employers from voluntarily assuming the costs associated with testing if they wish to do so.

Determination of employee vaccination status. Employers also must determine each employee’s vaccination status, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. 

Employer support for employee vaccination. Covered employers are required to provide paid time off (up to four (4) hours for each dose) for their employees to receive vaccinations. Employers are required to provide reasonable time and paid sick leave to employees to recover from side effects experienced following each primary vaccination dose (i.e., not including booster doses), but the ETS does not specify the amount of paid sick leave that the employer is required to provide for that purpose. Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable. Massachusetts employees could use any available COVID-19 sick pay for time off needed to recover from vaccine side effects. 

Information provided to employees and reporting requirements. The ETS further requires covered employers to provide employees: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines (cdc.gov)”; (3) information about OSHA prohibitions against retaliation and discrimination for reporting workplace illnesses or injuries and OSHA Whistleblower protections; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. Lastly, covered employers must report work-related COVID-19 fatalities to OSHA within eight hours of their learning about them. Such employers must also report work-related COVID-19 in-patient hospitalizations within 24 hours of the employer’s learning about the hospitalization.

It is noteworthy that nothing in the ETS prevents employers from implementing vaccination policies that are more stringent than those provided by the ETS, subject to legitimate medical and religious exemptions. Likewise, employers with fewer than 100 employees are free to mandate vaccinations and mask wearing requirements.

When Do Employers Need to Comply? 

As discussed above, while the ETS has been put on hold, employers should still be aware of the compliance dates if/when the ETS goes into effect. Thus, assuming that the courts clear the way for implementation of the rule and do not extend the deadlines, covered employers must begin providing paid-time off for employees to get vaccinated and ensure that unvaccinated employees are properly wearing facemasks by December 5, 2021, and all such employers must ensure that their employees are fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022. After that date, covered employers must ensure that any employees who have not received a vaccine begin producing verified negative tests to their employers on at least a weekly basis. Employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider.

Assuming that the ETS goes into effect, covered employers will be well advised to strictly adhere to its requirements. Failure to do so could result in employers receiving citations from OSHA and facing fines of up to $13,653 for each violation. Furthermore, any employer who deliberately disregards the mandate, could face a fine as high as $136,532.

If you have any questions about the ETS or any other COVID-19 or vaccination related issues, please do not hesitate to contact any member of our Firm’s Labor, Employment and Employee Benefits Group.

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Massachusetts COVID-19 Emergency Paid Sick Leave – Benefits Extended

As employers know, in May 2021, Massachusetts passed a law, “An Act providing for Massachusetts COVID-19 emergency paid sick leave,” which requires employers to provide employees up to 40 hours of paid leave for reasons related to the effects of the COVID-19 pandemic. On September 29, 2021, on the eve of its expiration, the law was amended to extend the time period for the entitlement to benefits and to add a category for which employees may take leave.

Under the law, employees are entitled to use up to a total of 40 hours of leave in order to quarantine/isolate, obtain a diagnosis or treatment, or obtain or recover from a vaccine due to COVID-19, for themselves or in order to care for a family member for these reasons. This leave is paid, but with a cap of $850, and employers can apply for reimbursement of these sums from a fund established by the Commonwealth.

The amendments to the law do not provide any additional leave for employees, so employees remain entitled to a total of 40 hours beginning May 28, 2021.

Extension of Time Period for Leave Benefit

Under the law, the requirement for employers to provide leave to employees was set to expire on September 30, 2021, or earlier if the $75 million fund designated for reimbursement of the leave was exhausted. The law has been amended to permit employees the ability to use COVID-19 emergency paid sick leave until April 1, 2022, or until the fund is exhausted. It appears that no additional money has been allocated to the fund, so the benefit will end when the original fund is exhausted.

According to guidance from the Commonwealth, if the fund is expected to become depleted prior to April 1, 2022, employers will be notified with 15 days’ advance notice.

Family Immunization Leave

The amendment also expands a category for which employees may use COVID-19 emergency paid sick leave. Previously, leave could be used by an employee to obtain a vaccination against COVID-19 or to recover from a vaccination, but the law did not permit leave for an employee to care for a family member for the same reasons. With the amendment, employees are now permitted leave to care for a family member who is obtaining an immunization related to COVID-19 or is recovering from an injury, disability, illness or condition related to an immunization. This amendment resolves a disparity in the law’s reasons for which leave is permitted for the employee’s own needs versus those to care for an employee’s family member. Now, employees are entitled to leave for the same reasons for themselves and their family members.

Therefore, in addition to permitting leave for an employee to receive or recover from a COVID-19 vaccine, employers must permit leave for an employee to care for or assist a family member in obtaining or recovering from side effects of a COVID-19 vaccine.

The Commonwealth has updated its website in accordance with the amendments to the law. As a reminder, the website includes additional information, form notices, and frequently asked questions regarding the law, and can be found here.

If you have any questions regarding this law or other employee leave issues, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.

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EEOC Recognizes “Long COVID” as a Disability

Last week, the United States Equal Employment Opportunity Commission (the “EEOC”) formally recognized that “long COVID” may be a disability under the Americans with Disabilities Act.

“Long COVID” occurs when an individual had COVID-19 and continues to suffer from a range of new or recurring symptoms of COVID-19 that can last weeks or months after the individual is first infected with the virus, and the symptoms can worsen with physical or mental activity. 

The United States Department of Health and Human Services (“HHS”) describes common symptoms of long COVID as: tiredness, difficulty thinking/concentrating (“brain fog”), heart palpitations, chest pain, fever, depression or anxiety, joint or muscle pain, headache, and damage to organs including the heart, lungs, kidneys, skin, and brain.  That is not an exhaustive of list of symptoms, and there is no specific number or combination of symptoms that must appear for an individual to be diagnosed with long COVID.

With the EEOC’s recognition of long COVID as a disability, employers must alert to their obligations to reasonably accommodate and engage in the interactive process with employees suffering from long COVID.  Not all individuals suffering from long COVID will necessarily meet the legal standard of “qualified individual with a disability” that triggers such protections; however, in the absence of clear guidance and standards, employers should consult with counsel prior to denying an accommodation to (or taking an adverse action against) an employee with long COVID.

The EEOC is expected to issue technical assistance regarding long COVID in the coming weeks, and we will keep you updated.

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What Employers Need to Know About President Biden’s “Path Out of the Pandemic” COVID-19 Action Plan

Last Thursday, President Biden announced a broad sweeping, 6-part COVID-19 Action Plan entitled, “Path Out of the Pandemic” (President Biden’s COVID-19 Plan | The White House) aimed at combatting the spread of COVID-19 and its variants. Below are a few of the key elements of the President’s COVID-19 Plan. 

Mandatory Vaccinations or At Least Weekly Testing for Employers with 100 or More Employees 

Included in the President’s plan is a requirement that all employers with 100 or more employees must require their employees to be fully vaccinated or to produce on at least a weekly basis a negative COVID-19 test result before they may come to work. The Biden administration has tasked the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) with promulgating a rule, also known as an Emergency Temporary Standards (ETS), to implement these requirements.  

OSHA’s ETS will also require employers to grant paid time off for employees to get vaccinated and to recover from any side effects of the vaccine. While the ETS has not yet been published, we anticipate that the requirement for leave may be the same or similar to the present OSHA vaccination leave requirements that are in place for certain workers in the healthcare field under a previous ETS, 29 C.F.R. § 1910.502(m). For applicable employees, this rule requires paid leave for a reasonable time (which is not defined, but OSHA has provided guidance on time periods presumed to be in compliance) in order to get a vaccination or to recover from side effects. The rule does not require additional leave time, but permits employers to satisfy the requirement of paid leave through the use of paid sick time or other forms of leave already accrued and/or available to the employee. 

Note that, in Massachusetts, employees are presently entitled to paid time off to get the vaccine and to recover from any side effects from it pursuant to Chapter 16 of the Acts of 2021, An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave. While leave under this law is capped at $850 per week, we anticipate that the OSHA ETS will require paid leave at an employee’s full rate, which certain employees may not receive under the Massachusetts law, depending on their rate of pay and the circumstances of their use of leave. However, the Massachusetts COVID-19 Emergency Paid Sick Leave law is set to expire on or before September 30, 2021, so employers with 100 or more employees should be prepared to permit employees who have not yet been vaccinated to take other paid leave, or provide additional leave, in order for employees to obtain a vaccination and to recover. We will provide an update on the specific details of the leave requirement when available. Please note that although Massachusetts is covered by OSHA’s Safety Standards, not all of OSHA’s regulations necessarily apply to Massachusetts’ public sector employers or their employees. If OSHA’s ETS COVID-19 rules amend an existing standard that has been expressly incorporated into the state’s program, it will apply. If the ETS COVID-19 rule is a new standard, however, the Massachusetts Department of Labor Standards may need to amend its regulations to incorporate the new OSHA standard. We are closely monitoring the issue and will send an update as soon as more details are available. 

Expansion of Mandatory Vaccinations for Healthcare Employers and Their Employees 

President Biden’s COVID-19 Action Plan also calls on the Centers for Medicare and Medicaid Services (CMS) to require COVID-19 vaccinations for workers in most healthcare settings that receive either Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, home health agencies, and ambulatory surgical settings. CMS had previously mandated vaccinations for nursing home staff. The President’s Plan now expands the mandatory vaccine requirement to staff in hospitals and other CMS-regulated settings, including clinical staff, volunteers, individuals providing services under arrangements with the healthcare facilities, and staff who are not involved in direct patient, resident, or client care. CMS’ mandate will create consistent standards across the U.S. 

President Biden’s Executive Orders Requiring Vaccinations for All Executive Branch Employees and Employees of Some Federal Contractors 

President Biden has also issued two executive orders mandating vaccinations for all executive branch employees and for employees of some federal contractors. 

The President’s Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to all employees of the executive branch of the Federal government. 

With regard to the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force will issue guidance by September 24, 2021 laying out the requirements for federal contractors. This Executive Order will apply to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  

Neither of President Biden’s Executive Orders for executive branch employees and employees of federal contractors permit testing as an alternative to being vaccinated, unless an employee is exempted from being vaccinated under either the Americans with Disabilities Act (ADA) due to a disability or Title VII of the Civil Rights Act of 1964 on the basis of a sincerely held religious belief.  

The above are just a few elements of President Biden’s Path Out of the Pandemic Action Plan. We will continue to keep close watch on OSHA’s ETS rule, the CMS mandate, and the Safer Federal Workforce Task Force’s guidance and will publish an update as soon as more information becomes available. In the meantime, if you have any questions, please do not hesitate to contact any member of our Firm’s Labor, Employment and Employee Benefits Group.

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COVID-19 and Masks: Updated Guidance from OSHA and Massachusetts

On the heels of the U.S. Centers for Disease Control and Prevention’s (“CDC”) revised guidance that fully-vaccinated people no longer need to wear masks in many indoor or outdoor settings, the Occupational Safety and Health Administration (“OSHA”) announced May 17th that it was reviewing the CDC’s guidance and would be updating its own materials accordingly.  Notably, OSHA advised that, until it updates its materials, employers should follow the CDC’s guidance for information “on appropriate measures to protect fully-vaccinated workers.”  In other words, as we predicted, OSHA is telling employers to follow the CDC’s mask guidance.

Here in the Commonwealth, Governor Baker announced Monday that the mask mandate will be rescinded on May 29th, and that the Department of Public Health will be issuing a new mask advisory consistent with the CDC’s guidance, which can be found here.  The new advisory makes clear that fully-vaccinated individuals may resume “all of the activities [people] engaged in prior to the pandemic without wearing a mask or staying 6 feet apart, except where otherwise required by federal, state or local laws, rules or regulations.”  Masks will still be mandatory for all individuals on public and private transportation systems, healthcare facilities and in other settings hosting vulnerable populations.  A complete list of places where masks will remain mandatory (regardless of vaccination status) can be found here.  Employers that fall under this umbrella should continue to require employees to wear masks.     

The guidance from the Commonwealth advises non-vaccinated individuals to continue wearing masks indoors and when they cannot socially distance.

In light of the updated guidance, here are a few additional considerations for employers in Massachusetts:

  • Can employers still require vaccinated employees to wear masks? Yes. Our answer to this question has not changed from our previous client alert.
  • Can an employer require only unvaccinated individuals to wear masks, as of May 29, 2021? Yes. Per the Commonwealth’s guidance, non-vaccinated individuals are advised to continue wearing masks indoors and when they cannot socially distance. 
  • Anything else we should consider? Yes, if you have not already done so, you should review our prior client alert, which answers important questions such as “What if someone misrepresents their vaccination status?” and “How will an employer know if an employee is fully-vaccinated?”

As we previously indicated, the guidance relating to COVID-19 and the workplace changes rapidly, so do not hesitate to reach out to your counsel if you are presented with any unique or complicated situations.  

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US Department of Labor Withdraws Independent Contractor Rule

On May 6, 2021, President Biden’s administration halted implementation of a rule published under the Trump administration which would have made it easier for businesses to classify workers as independent contractors instead of employees. The Trump regulation was supported by the “gig economy” industry, such as ride-share and delivery companies, who tend to classify their workforce as independent contractors. Treating workers as independent contractors rather than employees can avoid the application of employment laws, including the Fair Labor Standards Act (FLSA), which entitles employees to the payment of minimum wage, overtime pay, and other protections.

This regulation was set to implement a modified test for determining whether a worker is legally classified as an independent contractor. However, the U.S. Department of Labor issued a new rule withdrawing the previously-published regulation before it could take effect. The new rule does not provide a replacement analysis, but instead the Department of Labor will revert to the multi-factor analysis created by court precedent.

Under federal law, the Department of Labor and courts look to a variety of factors to determine whether a worker is an employee or an independent contractor under the totality of the circumstances, based on the “economic reality.” The test can involve a complex analysis to evaluate the nature of the relationship, and no one factor or combination of factors is necessarily determinative. Among the factors considered are the following:

  1. The extent to which the services rendered are an integral part of the employer’s business.
  2. The permanency of the relationship.
  3. The amount of the individual’s investment in facilities and equipment.
  4. The nature and degree of control by the employer.
  5. The individual’s opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the individual.
  7. The degree of independent business organization and operation.

The Trump rule would have modified the analysis, placing primary consideration on two core factors: 1) the nature and degree of control over the work, and 2) the worker’s opportunity for profit or loss. Additionally, the analysis would consider 3) the amount of skill required for the work, 4) the degree of permanence of the working relationship between the worker and the potential employer, and 5) whether the work is part of an integrated unit of production.

It is unknown whether the Department of Labor will propose a new rule in the future, but there have been indications that any new rule issued by the Biden administration is likely to narrow the test to make it harder to classify workers as independent contractors.

Employers in Massachusetts should be mindful that notwithstanding the analysis under federal law, state law provides a stricter test for determining whether a worker is properly classified as an independent contractor for most purposes. In Massachusetts, in order to treat a worker as an independent contractor, the employer must show all three of the following factors:

  1. The individual is free from control and direction in the performance of the work.
  2. The service is performed outside the usual course of the business of the employer.
  3. The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as the work performed.

Misclassification of workers as independent contractors may have significant legal consequences for employers. Should you have any questions regarding the proper classification of your workforce, please contact one of the attorneys in the Labor, Employment and Benefits Practice Group.

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Employer Tax Credits for Employee Paid Leave Due to COVID-19 Applies to Government Entities

The Internal Revenue Service (IRS) recently published guidance defining “Eligible Employer” for purposes of the American Rescue Plan Act of 2021 (ARPA) tax credits.    

Under ARPA, certain employers can claim refundable tax credits that reimburse them for the costs of providing additional paid sick and family leave to employees due to COVID-19. These tax credits are available to employers that pay for sick and family leave between April 1 and September 30, 2021. 

The recent guidance clarified that the tax credits apply to municipalities, school districts, public charter schools, and other government entities.

Specifically, the IRS guidance defines eligible employers to include, “… a governmental employer, other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code.”

In order to claim the tax credit, employers can report their total paid sick and family leave wages for each quarter on their federal employment tax return.  In preparation for receiving the tax credit, employers can keep the federal employment taxes that they otherwise would have deposited. These federal employment taxes include federal income tax withheld from employees, and both the employees’ share and the eligible employer’s share of Medicare taxes up to the maximum amount of credit available. Legally, the tax credit also applies to social security taxes. However, public employers in Massachusetts do not withhold social security taxes because of the State’s mandatory state retirement program.

If an employer does not have enough federal employment taxes set aside to cover the paid sick and family leave wages, employers can request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return for the relevant quarter. 

If you have any questions regarding the ARPA tax credits, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.

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COVID-19 Mandates in the Workplace

As we pass the one year anniversary of the COVID-19 Pandemic, new rules regarding COVID-19 mandates in the workplace are imminent. The Occupational Safety and Health Administration (“OSHA”) is preparing an Emergency Temporary Standard (the “Emergency Standard”) to better protect workers from the virus. The Emergency Standard could be released as early as this week, and take effect soon thereafter. Employers should be aware of the imminent release of the Emergency Standard and know what to expect from it.

Although certain areas of the country are relaxing their mask mandates, the Biden Administration is expected to reinstate masking and other social distancing rules within the workplace. Specifically, employers should anticipate a strict face-covering requirement for indoor workers. The Standard could also include a requirement to make sure employees have free access to the vaccines, by paying for their time and reimbursing their expenses. This requirement would conflict with the current advice from the Equal Employment Opportunity Commission (“EEOC”), so employers should expect the EEOC to clarify its advice following the official release of the standard.

The need for the Emergency Standard resulted from OSHA and its state counterparts receiving over 60,000 complaints about COVID-19 safety issues. Recently, the U.S. Department of Labor cited a Massachusetts employer for neglecting COVID-19 protocol safeguards. An inspection revealed that the owner of a Massachusetts tax preparation service prohibited her employees and customers from wearing masks, did not enforce social distancing, failed to provide adequate ventilation in the workplace, and failed to implement controls such as physical barriers, pre-shift screening of employees, enhanced cleaning, and other methods to reduce transmission of the virus. The business now faces $136,532 in penalties. 

Employers should be aware that, even before the official release of the Emergency Standard, they must comply with state regulations regarding COVID-19 safety in the workplace. OSHA can and will conduct inspections after receiving referrals of employers not following protocols. 

If you have any questions regarding the Emergency Temporary Standard or any other COVID-19 related workplace issues, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.

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American Rescue Plan Act of 2021 and the anticipated Massachusetts COVID-19 Emergency Paid Leave

In lieu of our annual Employment Law Seminar, Mirick O’Connell’s Labor, Employment and Employee Benefits attorneys are hosting a Spring Webinar Series focusing on hot topics in employment law.

Attorney Kim Rozak and I presented the second program in the series last week. We covered the American Rescue Plan Act of 2021 and the anticipated Massachusetts COVID-19 Emergency Paid Leave.

In case you missed the program, or if you would like to watch it again, we are pleased to share the webinar recording.

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DOL Publishes Model Notices for COBRA Subsidies

As we previously reported, on March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (“ARPA”) into law, which includes a COBRA premium assistance program. Pursuant to ARPA, the Department of Labor (DOL) was instructed to issue model notices regarding the six-month subsidy period, the extended election period, the alternative coverage option, and the expiration of premium assistance. On April 7, 2021, the DOL published those notices, as well as a summary and FAQs regarding the COBRA premium assistance program, all of which can be found at COBRA Premium Subsidy | U.S. Department of Labor (dol.gov). Employers should review this information closely. 

Among other things, the FAQs clarify that an employee who experiences any reduction in hours, including via temporary leave or a change from full-time to part-time status, is eligible for the COBRA subsidies. The FAQs also make clear that the subsidy is available for group health insurance coverage under comparable state continuation coverage laws like Massachusetts mini-COBRA, which applies to employers with between 2 to 19 employees.

Employers have until May 31, 2021 to provide these notices to any employee who lost healthcare coverage because of an involuntary termination or reduction in hours on or after November 1, 2019. If you have any questions regarding the new COBRA subsidy or any other COBRA-related issues, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment and Employee Benefits Group.

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