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Employers should consider how they will navigate the legal and operational challenges related to required vaccination and testing, such as vaccination tracking and management; health and religious accommodations; and wage and hour implications.
On the heels of the FDA’s full approval of the Pfizer vaccine, several major U.S. cities are requiring vaccines for entry to restaurants, shops, and entertainment facilities – and some businesses are instituting their own vaccine requirements for guests. Those restaurants, hotels, and other businesses being forced to comply with another law have questions about how to best handle this potentially touchy situation, but even those businesses introducing their own guest vaccine mandate on their own need guidance in this area. This article provides businesses tips on how to comply with or roll out vaccinated-only mandates and avoid some legal pitfalls in doing so.
Tip No. 1: Understand the Law in Your Local Jurisdiction
While some U.S. cities like New York City, San Francisco, New Orleans and Honolulu require proof of vaccination to enter indoor dining, fitness, or entertainment venues, other states like Florida have prohibited business owners from implementing vaccinated-only policies and excluding unvaccinated patrons. It is key that you review and understand the law in the locality where you operate so you can comply.
For example, in New York, guests over the age of 12 must show proof of having received at least one dose of a COVID-19 vaccine, and businesses will be required to hang specific posters describing the mandate near entrances. Businesses that don’t comply can look forward to fines as enforcement begins on Sept. 13. In San Francisco, on the other hand, guests over the age of 12 must be fully vaccinated to go inside the same kind of establishments. Some cities, like New Orleans, will provide businesses with greater flexibility by permitting evidence of a negative COVID-19 PCR test taken no more than 72 hours before entry in lieu of proof of vaccination. Because these rules are rapidly changing month over month, companies operating in multiple states should consult a local Fisher Phillips attorney to determine how best to navigate their particular situation.
Tip No. 2: Prepare for the Public Pushback
Operating any business during a global pandemic is difficult. Add various (and everchanging) legal mandates directed at requiring compliance from a politically polarized public and it may start to seem impossible. But it is possible; here are some tips:
- Train Your Staff
Your staff and public-facing employees will be handling compliance with the mandates. It is crucial to train your employees on how to politely inform patrons of the requirements in your jurisdiction (either proof of vaccination and/or proof of a negative PCR test) if they wish to enter your premises.
Prepare staff to alert a designated manager to handle non-compliant patrons and ensure that a designated manager is prepared to calmly and effectively deescalate the situation.
- Provide Notice to Patrons
While you may assume everyone knows of any government-required mandate or your businesses’ own requirement, it is important for you to provide as much notice as possible to customers concerning the local vaccination mandate prior to their arrival. Doing so can help reduce confusion and prevent an uncomfortable situation. Personal service providers (such as spas and salons) and hospitality businesses (such as hotels and restaurants) should provide notice of the policy when confirming reservations. A simple message to visitors and guests is best, not only confirming the reservation but highlighting your efforts to keep them and your staff safe by sharing your policy of requiring proof of vaccination for indoor entry.
You can also post notices on your public-facing website, apps, and social media platforms to notify visitors of the vaccination mandate ahead of time. Another common strategy is posting conspicuous signs in prominent places at your entrances. The notices should include a statement that you have the right to refuse entry or service to anyone not complying with your new vaccination policy for indoor activities, particularly where required by local law.
- Communicate Clearly and Calmly to Non-Compliant Patrons
Your establishment is bound to encounter non-compliant guests as so many people have strong feelings regarding vaccination mandates. The first step in such an unfortunate situation is to ensure that staff have a prepared in advance, scripted request for patrons who do not comply. If the patron does not respond positively, the employee should notify the designated manager to handle the situation.
The designated manager should share either the legal requirements of the jurisdiction and/or your businesses’ policies. The manager should then inform the guest that they will not be permitted indoors if they continue to refuse to comply. Consider offering to-go or outdoor dining service if possible. If the guest does not cooperate, the manager should inform them that they are welcome to return if they comply with the policy or when the need for proof of vaccination is gone. Where possible, your manager should offer to reschedule an appointment or reservation.
If the situation escalates, the manager should know to call on the business’ security personnel or local authorities in the same manner you would handle a trespassing situation. Regardless of how the situation concludes, the manager should immediately document the incident in objective, non-emotional terms. They should be instructed to provide the documentation to key personnel (human resources, legal, etc.) as soon as possible, and your business should retain the report in the event you are required to later demonstrate what happened.
Tip No. 3: Prepare for Accommodation Questions
It’s also likely that your business will encounter guests who claim they should be exempt from the government mandate or your business policy because of a medical or religious reason. Be prepared to deal with both situations.
- What happens when a patron claims they cannot be vaccinated because of a disability?
Title III of the Americans With Disabilities Act prohibits places of public accommodation from applying eligibility criteria that screen out or tend to screen out a person with a disability, or any class of people with disabilities, unless they qualify as legitimate safety requirements necessary for the safe operation of the facility. While the Department of Justice has not issued any guidance for vaccination mandates by public accommodations, it is unlikely that a vaccine requirement would qualify as an ADA-eligibility criterion. Furthermore, given the significant data on the effectiveness of the COVID-19 vaccine reducing transmissibility and severe disease, there is a strong argument that unvaccinated individuals pose a significant risk of harm to others indoors.
With that said, businesses are still required under the ADA to make reasonable modifications to procedures to provide individuals with disabilities with access to their goods, services, and facilities, unless such modifications would present a direct threat to the health and safety of others, or fundamentally alter the business. The modifications will vary from business to business and locality to locality. For example, New York recommends offering unvaccinated guests an opportunity to order take-out or join a virtual exercise class. Meanwhile, San Francisco suggests businesses seat unvaccinated customers in an outdoor area or try to connect guests with similar services in the area that host outdoor options. If your businesses can determine workable modifications for unvaccinated guests in advance, it should post details on its website.
- What about patrons who claim they cannot be vaccinated because of their religious beliefs?
Title II of the Civil Rights Act of 1964 prohibits discrimination in public accommodations such as restaurants and hotels on the basis of race, color, religion or national origin. The law is less clear when it comes to vaccine or mask mandates. The current consensus among courts suggests businesses are not unlawfully discriminating by generally enforcing a government-mandated vaccination requirement, and this standard seems likely to also apply to business-created mandates. Further, at least two courts have decided that businesses need not accommodate religious beliefs to comply with Title II. This may change as appeals work their way through the courts, so it is important to be aware of the developing law in your area.
No matter how such appeals turn out, businesses should keep a record of accommodation requests, resolutions, and compliance efforts to show they are doing their best to satisfy the requirements of local and federal laws.
We encourage businesses to consult with a local Fisher Phillips attorney to determine how to limit your exposure in complying with the new rules or rolling out your own vaccine policies for guests. We will monitor these developments and provide updates as necessary. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Hospitality Industry Practice Group.
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Employers that provide prescription drug coverage (Rx Coverage) to their employees must notify all Medicare-eligible employees regarding the Rx Coverage’s creditable or non-creditable status under the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA). Affected employers must provide the required notices before October 15 each year to coordinate with the start of the annual Medicare open enrollment period. The Medicare Part D notice requirement is generally straightforward, but we still see a flurry of questions every year regarding these notices. We have created this guide to help answer some of the most common employer inquiries.
The Medicare Part D rules state that individuals must pay a higher cost for Medicare Part D coverage if they fail to enroll before the end of their initial Medicare enrollment period unless they delay enrollment because they have creditable Rx Coverage. The Centers for Medicare and Medicaid Services (CMS) considers Rx Coverage to be creditable if it is actuarially equivalent or greater than the prescription drug coverage under Medicare Part D. Thus, MMA included the Medicare Part D notice rule to ensure that individuals received the information they need to make an informed choice regarding prescription drug options and avoid higher costs Medicare Part D costs for late enrollment.
All Medicare Part D-eligible individuals who are covered under (or who apply for coverage under) the plan’s Rx Coverage must receive a Medicare Part D notice. Medicare defines this group to include any individual who is entitled to Medicare Part A and/or enrolled in Part B as of the coverage effective date of the Medicare Part D plan, and who lives in the Medicare Part D plan’s service area. Keep in mind that CMS interprets being “entitled” to Medicare Part A to require an individual to have applied for and been granted Part A coverage.
The tricky part is that Medicare Part D-eligible individuals could be active employees, disabled employees, qualified beneficiaries receiving COBRA coverage, and retirees. Additionally, any of their covered spouses and dependents also are Medicare Part D-eligible. Employers typically do not have accurate information on spouse and dependents, so the best practice is to issue notices to all individuals eligible for the Rx Coverage.
Generally, one Medicare Part D notice will suffice for a covered Medicare beneficiary and all their dependents and spouse. But where an employer knows that any Medicare-eligible spouse or dependent resides at a different address, the employer must send separate notice to that last-known address.
Medicare enrollment starts annually on October 15. Because the Medicare Part D notice rules require employers to issue notices before that date, employers must be sure they provide notices by October 14.
Employers tend to focus on the October Medicare Part D notices because they relate to a firm, regular deadline. However, Medicare rules also require employers that offer Rx Coverage to issue Medicare Part D Notices at other intervals. For example, Medicare Part D notices must be furnished:
- prior to an individual’s initial enrollment period for Medicare Part D;
- before the Rx Coverage effective date for any Medicare-eligible individual who joins the plan during the year; and
- upon a Medicare Part D-eligible individual’s request.
To avoid missing any of the foregoing deadlines, many plan sponsors include a Medicare Part D notice in their new hire information materials and with other plan enrollment materials. Doing so will help employers be more certain that all Medicare-eligible individuals get timely notice regarding the creditable or non-creditable status of their Rx Coverage.
Finally, employers must provide a Medicare Part D notice whenever they no longer offer Rx Coverage or if the coverage changes so that it is no longer creditable or becomes creditable.
Manner of Delivery
Employers can send Medicare Part D notices separately or include them with other plan materials. Employers can opt to send the notices along with open enrollment materials, but that will work only if the open enrollment period begins before October 15. Further, if an employer chooses to send Medicare Part D notices with other plan materials, CMS mandates that the Medicare Part D notice be the first page of the materials. Alternatively, the employer can place a notice on the first page that references where in the materials individuals can find the required notice. Employers must set off such a reference in a separate, prominent box in a bold face font no smaller than 14-point.
CMS allows employers to send Medicare Part D notices electronically and has stated that employers who follow the general electronic disclosure rules set by the U.S. Department of Labor (DOL) for other group health plan information will be deemed to have met their Medicare Part D Notice obligations. Essentially, this would require either that an intended recipient has access to the employer’s email system as part of their normal job duties or else the employer would need to clear several other hurdles to be reasonably certain that the Medicare Part D notices were received.
Additionally, employers choosing electronic delivery must be sure to:
- prepare and provide electronic materials according to otherwise applicable requirements;
- notify each recipient of the significance of the document; and
- state that a paper version is available on request.
Also, if a plan sponsor opts to issue Medicare Part D notices under DOL electronic disclosure rules, the sponsor must inform plan participants that they must give a copy of the disclosure to their Medicare-eligible dependents covered under the group health plan providing Rx Coverage.
If intended recipients do not have access to an employer’s electronic information system as part of their regular job duties, an employer can still send Medicare Part D notices electronically, but there are more burdensome requirements. Thus, many employers choose to use regular mail to avoid the extra administrative burdens imposed by the electronic disclosure rules.
Keep in mind that the information in the Medicare Part D notice pertains to the upcoming calendar year of coverage not the current year. Thus, a Medicare Part D notice issued in 2021 will describe the Rx Coverage available for 2022. Medicare Part D notices must:
- state that the plan sponsor has deemed the relevant Rx Coverage to be creditable or not;
- explain what it means for coverage to be creditable or non-creditable;
- describe the beneficiary’s right to a notice;
- list the coverage options available to beneficiaries including the option to enroll in Medicare Part D during Medicare’s regular annual enrollment period; and
- provide details as to why creditable coverage is important and how an individual could still be subject to higher Medicare Part D premiums if they later have a break in creditable coverage of 63 or more continuous days before enrolling in a Medicare Part D plan.
CMS has posted model Medicare Part D notices to its website. Employers do not have to use the model notices to fulfill their notice duties, but they must include the above-listed items if they choose to create their own notices. Be aware that employers cannot use the model notices as-is; they will require employer-specific modifications including specifying whether Rx Coverage is creditable or not. We see many Medicare Part D notices that have been issued or included in open enrollment materials without having been appropriately modified.
Employers who offer Rx Coverage must be sure to follow CMS rules to provide Medicare Part D-eligible individuals proper notice of their prescription drug coverage options, including providing all Medicare Part D-eligible individuals notice before October 15. Employers should not confuse this requirement for the additional requirement to annually notify CMS as to the creditable status of Rx Coverage through CMS’s online portal.
We will monitor these developments and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information direct to your inbox. If you have further questions, contact your Fisher Phillips attorney, the author of this Insight, or any attorney in our Employee Benefits and Tax Practice Group.
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