Tag: Equal Employment Opportunity Commission (EEOC)

Final Rule for ACA Section 1557

On June 12, 2020, the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) published the long-awaited final rule which significantly changes several of the anti-discrimination provisions of Section 1557 of the Affordable Care Act.  The final rule, which is a departure from the agency’s previous interpretation of the rules which were enacted 2016 during the Obama administration.  Since, the enactment of the 2016 rules, there have been numerous legal challenges to these provisions in federal court.  HHS believes that these final rules will reduce or eliminate provisions that they state were ineffective, unnecessary, and confusing and will save roughly covered entities roughly $2.9 billion in costs.

2016 Section 1557 Requirements

Section 1557 of the ACA were the anti-discrimination provisions geared at ensuring all individuals had access to essential benefits.  When originally released in 2016, the Section 1557 rules prohibited discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, including discrimination on the basis of pregnancy, gender identity, and sex stereotyping.  The 2016 Rule also required that covered entities:

  • Establish a written Grievance Procedure.
  • Identify and maintain a Compliance Coordinator.
  • Publish non-discrimination notices in the top 15 languages spoken in the covered entity’s state.
  • Publish taglines informing individuals of the availability of aides and services in the top 15 languages spoken in the covered entity’s state.
  • Make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.
  • Include the mailing of non-discrimination notices and taglines in every “substantial communication” with individuals.
  • Included non-discrimination protections for individuals “on the basis sex” which was interpreted by OCR to include gender identity, sexual orientation, and termination of pregnancy.

2020 Section 1557 Final Rule

The Final Rule eliminated several key provisions of the 2016 Rule. The provisions that were eliminated included:

  • Discrimination protections for individuals “on the basis of sex”
  • Specific non-discrimination provisions “on the basis of sex”, including gender identity, sexual orientation, and termination of pregnancy.
  • Written Grievance Procedure.
  • Compliance Coordinator.
  • Publishing of non-discrimination notices in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).
  • Publishing of taglines in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).

In addition to eliminating certain provisions, the final rule also relaxed the requirements relative to providing meaningful access to interpreter services for individuals with Limited English Proficiency (LEP).  Under the 2016 rule, the agency assessed compliance with the meaningful access requirement by whether a covered entity established and implemented a Language Access Plan.  This included providing access to interpreter services to individuals with LEP.  The 2020 final rule requires covered entities only make “reasonable efforts” to ensure meaningful access to aides and services for individuals with LEP.  However, the final rule does not change the requirements for meaningful access for individuals with disabilities or communication related disabilities.

The Bottom Line for EMS Providers

When the 2016 Section 1557 rule was enacted, the AAA sought guidance from OCR due to what we perceived to be compliance challenges for mobile-based healthcare providers.  Our concerns were related to how mobile-based healthcare providers can ensure that the public and the patients we serve receive adequate notice of the protections afforded under Section 1557.  As is often the case, when new regulations are enacted, they are enacted for standard “brick and mortar” healthcare providers, not ambulance services.  At the time, our guidance was to post the required notices and taglines on your organization’s website and in the patient signature areas of your patient care report.

From a practical perspective, the enactment of this final rule will have limited impact for ambulance providers.  Presuming an ambulance service’s compliance with the provisions of the 2016 rule, member companies can decide if they wish to eliminate their existing Compliance Coordinator position and Grievance Procedure.  However, OCR still requires a covered entity to have written process for handling discrimination complaints.  Therefore, it may be beneficial to simply maintain the 2016 requirements to ensure you can demonstrate compliance.

One welcome change is the elimination of the need to include the Section 1557 non-discrimination notices and taglines in every “substantial communication” with individuals.  Many members voiced that they incurred a significant expense mailing the nondiscrimination notice and tagline requirements in every invoice or patient communication.  This often added several additional pages to all patient communications which increased printing and postage costs substantially.  Our recommendation is for ambulance providers to continue to make the non-discrimination notices and taglines available on your organizational website and in any electronic communications as these mediums do not significantly increase costs.

Compliance Assistance

OCR has numerous compliance assistance documents on their website.  Additionally, members can contact the AAA for assistance with these regulatory changes.

EEOC Guidance on COVID-19 Antibody Testing

The Equal Employment Opportunity Commission (EEOC) issued updated guidance yesterday titled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws yesterday.  The updated guidance addresses employers who wish to require employees to have a COVID-19 antibody tests prior to re-entering the workplace.  The guidance consists of seventeen pages of Frequently Asked Questions (FAQ) to assist employers as they navigate this truly unprecedented time for employers and employees during a pandemic.

The updated guidance alerts employers that they may not require employees to undergo COVID-19 antibody testing as this would constitute an unlawful “medical examination” under the Americans with Disabilities Act (ADA).  Under the ADA, employers are limited in the medical related inquiries that they can make of employees.  Medical related inquiries can be considered a Medical Examination and are strictly regulated under the ADA and the Rehabilitation Act.  Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 29 CFR § 1630.14.  The reason certain medical examinations are prohibited is due to the likelihood that the examination may identify medical conditions that constitute a protected disability under the ADA.

The EEOC has issued previous guidance that permits COVID-19 viral testing in the employment setting.  The distinction between the antibody test and the viral test is the presence of active virus and the obligation of employers to provide a workplace that is free from known hazards.  The viral tests are generally administered prior to the employee entering the workplace and are considered “job related and consistent with business necessity.”  Additionally, employers may take the body temperatures of employees as they enter the workplace and at intervals during their shift.  However, employers must be aware that some individuals with COVID-19 are asymptomatic and may not have an elevated body temperature.  Additionally, the records related to taking employee temperatures are confidential and should be maintained with other employee medical records.

The best practice for employers, have a documented plan.  Ensure that all employees understand their role in controlling the spread of the virus.

Be sure employees:

  1. Monitor their own temperature and COVID-19 symptoms.
  2. Wear a face covering and practice social distancing, even in the workplace to the extent it is possible.
  3. Frequently wash their hands
  4. Stay home if they are sick or display symptoms;
  5. Let their employer know if they have a family member or significant other who has COVID-19 or is displaying symptoms.
  6. Regularly clean and disinfect any equipment they utilize, before, during, and at the conclusion of their workday.

Employers should:

  1. Be sure to provide employees with COVID-19 education.
  2. Place signage in the workplace to remind employees and visitors to wear facial coverings and maintain social distancing.
  3. Provide disposable face coverings for anyone entering the building who does not have a mask.
  4. Maintain a log of all individuals, employees or visitors, who enter the building. The log should include their name, organization, and a method of contact.
  5. Provide all visitors with contact information should they become ill or exhibit symptoms in the 14 days following a visit to your workplace.
  6. Limit meetings or gatherings of employees.
  7. If administering employee temperatures
    1. Communicate the process to employees
    2. Establish what temperature will be considered too high for working (CDC considers a fever to be at least 100.4 F)
    3. Ensure all individuals are wearing face masks and social distancing, to the extent possible
    4. If employer requires temperature taking, be sure that the time employees spend associated with this procedure is tracked and compensated.
    5. As stated previously, maintain records confidentially

If you have questions or your organization needs assistance in determining if you have the appropriate safeguards in place, be sure to reach out to the AAA for help.

EEO-1 Reporting Requirement Update

In February the American Ambulance Association (AAA) alerted members that the Equal Employment Opportunity Commission (EEOC) had announced that it has postponed the opening of EEO-1 data reporting until early March and also extended the deadline for employers to submit their EEO-1 data until May 31, 2019.  Each year, certain federal contractors and employers with 100 or more employees are required to report the EEO-1 Component 1 data which includes information about gender, and race/ethnicity of the employer’s workforce by job type groupings.  This data is used by the EEOC to ensure compliance with the Federal non-discrimination laws.

In 2016, the Obama administration required that covered employers report wage and hour data (Component 2) along with their EEO-1 Component 1 data starting in 2017.  However, the Trump administration suspended the EEO-1 pay and hour reporting (Component 2) requirements stating that they were too burdensome for employers.  ON March 4, 2019, after a lengthy legal proceeding, a federal judge lifted the Trump administration stay on wage and hour reporting stating that there was no reason to delay this reporting the Component 2 data.

Last week, the EEOC announced that it will collect pay and hour data for the 2017 and 2018 calendar years and that the deadline for employers to report this data will be September 30, 2019.  The EEOC will not be ready to start accepting Component 2 data until sometime in July.  However, employers should begin preparing to report the Component 2 data for both 2017 and 2018 no later than the September deadline.   It is important for covered employers to understand that the data they typically report each year (Component 1) is still due on May 31, 2019.

Members who have additional questions or need assistance with determining if they are required to report EEO-1 data can contact the AAA.

 

EEOC Extends EEO-1 Reporting Deadline

The Equal Employment Opportunity Commission (EEOC) had announced that it has postponed the opening of EEO-1 data reporting until early March and also extended the deadline for employers to submit their EEO-1 data until May 31, 2019.  The EEOC has cited that these deadlines have been postponed due to the lapse in funding as a result of government shut down.  The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report.  The EEO-1 Report data includes data about wages, gender, and race/ethnicity of the employer’s workforce by job type groupings.  This data is used by the EEOC to ensure compliance with the Federal non-discrimination laws.  For additional information about filing your organization’s EEO-1 Report, visit the EEOC’s employer resource page or contact the AAA for assistance.

Do You Offer Equal Paternity Leave?

The Equal Employment Opportunity Commission (EEOC) announced today that Estée Lauder, the beauty product manufacturer, has entered a settlement agreement in the amount of $1.1mm to settle a class action lawsuit filed on behalf of 210 male employees who allege that Estée Lauder discriminated against them on the basis of their gender.  The allegations included that Estée Lauder provided “new fathers less paid leave for bonding with a newborn, or with a newly adopted or fostered child, than it provided new mothers. The parental leave policy at issue was separate from medical leave received by mothers for childbirth and related issues. The EEOC also alleged that the company unlawfully denied new fathers return-to-work benefits provided to new mothers, such as temporary modified work schedules, to ease the transition to work after the arrival of a new child and exhaustion of paid parental leave.”

The EEOC filed suit in U.S. District Court for the Eastern District of Pennsylvania last August alleging unlawful sex discrimination in violation of the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964.  The U.S District Court entered a consent decree July 17, 2018 awarding the male members of the class action $1,100,000 in damages and requires Estée Lauder to administer parental leave and related return-to-work benefits in a manner that ensures equal benefits for male and female employees and utilizes sex-neutral criteria, requirements and processes.

The announcement of this settlement should prompt employers to examine all workplace policies to ensure that they are applied and enforced in a gender neutral manner.  For AAA members who utilize the AAA Human Resources Manual, the current Parental Leave Policy as drafted, would comply with this ruling.  If AAA member companies have questions or are concerned about whether their policies or practices are consistent with current law, they can contact me with questions.

EEO-1 Survey Due March 31

The American Ambulance Association (AAA) wants to remind all employers located United States and the District of Columbia that are required to file their EEO-1 Survey Data annually that the deadline to file is quickly approaching on March 31, 2018.  Employers who have at least 100 employees are required to file EEO-1 survey annually with the EEOC.  Also, employers who are Federal contractors with 50 or more employees and at least $50,000 in contracts must file as well.  The Equal Employment Opportunity Commission (EEOC) has many resources, including an informative reference guide How to File an EEO-1 Report available to assist employers with filing the survey data.  Employers should file on-line at the EEOC’s EEO-1 Survey Portal.  The AAA is always available to assist members with this, or any human resources issue that your organizations might be facing.

2017 EEO Survey

The EEOC announced that it has launched the EEO Survey to report 2017 Workforce Data. Ambulance services who Federal contractors or private employers with 100 or more employees are required to report the Workforce Data by March 31, 2018. To clarify, billing the federal insurance programs does not qualify as being a Federal contractor for the purposes of reporting EEO-1 Data. If you or your agency needs assistance in determining if your organization is required to report EEO Workforce Data, please contact the AAA.

SHRM: 65% of EEOC Cases Resolved Without Cause

If you ask most healthcare attorneys the best way for healthcare providers to avoid being sued is to listen to their patient, communicate clearly, and most importantly, be nice. The same can be said for employment related legal actions.  In a great article released by the Society of Human Resource Management (SHRM), suggests that over 65% of the cases filed with the Equal Employment Opportunity Commission (EEOC) were found to be resolved without “reasonable cause”. Just like with the provision of healthcare, employers can often avoid time consuming and costly employment litigation by making sure that the leadership and management team communicates clearly to employees about performance expectations, listens to employee concerns or feedback, and possibly most importantly, treats their employees nicely regardless of the message they are delivering. The employment relationship is just like any other human relationship. Those where there is mutual respect and appreciation yield the richest experience.

EEOC Fiscal Year Highlights

The Equal Employment Opportunity Commission (EEOC) released its Fiscal Year 2016 Highlights just before the holiday. As discussed in the Human Resources sessions at our Annual Conference, the number of charges received by the agency has increased for several year and continues to rise as the EEOC focuses its efforts on outreach and enforcement. It is more important than ever that employers improve their efforts and education for hiring staff, supervisors, and employees on providing a workplace environment that is free from discrimination and harassment. As always, do not hesitate to contact the AAA for assistance with regards to your workplace compliance efforts.

EEOC: 2017 EEO-1 Reports Must Include Pay Data

Just a reminder that those employers who currently are required to file an EEO-1 Report will be required to start reporting pay data for the 2017 year.  The Equal Employment Opportunity Commission (EEOC) published a Press Release in this past September announcing this change with the goal of more easily identifying pay disparities and reducing discrimination.   The first report being due March, 2018 for pay year 2017.  The EEOC has published several resources, including recorded webinars, on their website to assist employers who are required to comply.  The new requirements can be found on the EEOC’s website.