November 17, 2021

Manage Heightened Retaliation Exposures Arising From COVID-19 Safety, Return-To-Work & Other Practices

November 17, 2021

Employers should take care to design and administer their COVID-19 vaccination, testing, masking, accommodation, return-to work, discipline and other safety and employment policies and practices to defend against already high and rising risk that their organization may face charges of illegal retaliation or interference brought by an employee, a federal agency or both.

Already the most frequently frequently alleged form of discrimination for years, Equal Employment Opportunity Commission (“EEOC”) statistics show retaliation claims accounted for a staggering 55.8 percent of all charges filed with the EEOC in 2020, making retaliation the most frequently cited claim in charges filed with the agency above even charges of disability, race and sex.

Fallout from the COVID-19 pandemic promises to add fuel to this trend by requiring already resource challenged employers to assimilate and administer evolving and often controversial or even arguably conflicting leave, safety, and other requirements with respect to an often assertive and in a politically charged and often fearful workforce.

To make matters worse, the EEOC, U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) recently announced a new joint initiative targeting investigation and enforcement of retaliation and interference claims against employers. According to the November 17, 2021 EEOC announcement of its involvement in the new initiative, the agencies see to end retaliation against workers who exercise their protected labor and employment law rights by collaborating among these civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educating the public and engaging with employers, business organizations, labor organizations and civil rights groups in the coming year.

In furtherance of this effort, the EEOC updated its COVID-19 technical assistance to include more information about employer retaliation under the Civil Rights laws the EEOC enforces in pandemic-related employment situations. Key points shared in this new technical guidance include:

Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the EEOC-enforced anti-discrimination laws.
Protected activity can take many forms, including filing a charge of discrimination; complaining to a supervisor about coworker harassment; or requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether the request is granted or denied.
Additionally, the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

While anti-retaliation protections enforced by the EEOC only apply to the exercise of rights under the federal equal employment opportunity (EEO) laws, similar protections also apply under the Family and Medical Leave Act, the Occupational Safety and Health Act, and the Immigration and Nationality Act’s anti-discrimination provisions prohibiting some types of workplace discrimination based on citizenship status, immigration status, or national origin.

For purposes of these and other laws containing antiretaliation provisions, retaliation generallyoccurs when an employer (through a manager, supervisor, or administrator) takes an adverse action against an employee or applicant because the employee or applicant raised a concern, made a complaint or reported a concern about a workplace practice, condition or activity prohibited by the law, reported a suspected violation of law, participated in an investigation, or engaged in other protected activity under the law.

An adverse action is an action that could dissuade or intimidate a reasonable worker from engaging in a protected activity. Because adverse action can be subtle, it may not always be easy to spot. Examples
of adverse action include, but are not limited to:

Firing or laying off
Demoting
Denying overtime or promotion
Disciplining
Denying benefits
Failing to hire or rehire
Intimidation
Making threats
Blacklisting (e.g., notifying other potential employers that an applicant should not be hired or refusing to consider applicants for employment who have reported concerns to previous employers)
Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
Reducing pay or hours
More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance.

Under each of these laws, the antiretaliation prohibitions may protect applicants and employees against adverse job action for in good faith making a complaint, cooperating in an investigation whether the employee or another party makes the complaint, asking for accommodations, asking questions about rights or policies that might impact of protected rights, expressing concerns about the appropriateness of employer practices covered by these laws, or engaging other actions, communications or behaviors relating to protected rights that the employee believes he or another employee enjoys, employers need to use care both in responding to employees and in administering promotions, demotions, terminations, layoffs and other workforce activities with respect to employees that have engaged in activity that could trigger the antiretaliation protections to avoid creating evidence that supports a retaliation claim as well as to consistently carefully capturing and retaining documentation and other evidence that can be used to demonstrate legally defensible reasons for job decisions impacting these employees that might be needed to defend against retaliation, interference or other discrimination charges under these and other laws.

Employers also may wish to discuss with legal counsel the advisability and strategies for proactively reviewing job performance, promotion, termination, discipline and other job actions involving employees whose prior involvement in protected activity arguably might provide a basis for asserting protection against retaliation or interference under any of these laws.

More Information

If you would like more information about employer strategies for managing compliance and risks arising from the administration of workforce related COVID-19 or other practices, The author of this update, employment lawyer Cynthia Marcotte Stamer, may be able to help. Ms. Stamer recently discussed COVID-specific retaliation risks and other employer concerns arising from federal COVID-19 vaccination and other workforce requirements as a panelist on the “COVID-19 Vaccination Mandates & Incentives” virtual seminar the American Bar Association Joint Committee on Employee Benefits hosted on November 12, 2021 and has assisted employers to manage and defend exposures under EEOC, occupational health and safety and other federal and state laws for more than 30 years. To purchase a recording of the program, see here. For information about obtaining Ms. Stamer’s slides, email here.

Solutions Law Press, Inc. also invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here. For specific information about the these or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

About the Author

For help developing, administering or defending your organization’s COVID-19 Mandatory Vaccine Policy or other workforce, employee benefits, compensation or compliance practices, contact the author. Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years working as an on demand, special project, consulting, general counsel or other basis with domestic and international business, charitable, community and government organizations of all types, sizes and industries and their leaders on labor and employment and other workforce compliance, performance management, internal controls and governance, compensation and benefits, regulatory compliance, investigations and audits, change management and restructuring, disaster preparedness and response and other operational, risk management and tactical concerns.

For more information about these concerns or Ms. Stamer’s work, experience, involvements, other publications, or programs, see www.cynthiastamer.com, on Facebook, on LinkedIn or Twitter or e-mail here.

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Posted by Cynthia Marcotte Stamer

New Rule Requires Health Plans & Insurers To Report Prescription Drug Data

November 17, 2021

Employer-based health plans, health insurance issuers, and other group health plans should begin preparing to report prescription drug and health coverage costs data for prescription drugs covered by their programs after December 31, 2021 required by an interim final rule with request for comments issued by the Departments of Health and Human Services (HHS), Labor, the Treasury (collectively, the Departments), and the Office of Personnel Management today. Since the new rule requires covered plans and insurers to report data for prescription expenditures in 2020 and 2021 by December 27, 2022 and annually thereafter, covered plans and insurers will want complete the necessary arrangements to collect the data as soon as possible to minimize the cost and burdens of collecting and preparing the reports required at the end of the year.

The new “Prescription Drug and Health Care Spending Interim Final Rule with Request for Comments, is the fourth rule in a series that the Departments are issuing to implement the Title I (the “No Surprises Act”) of Division BB of the Consolidated Appropriations Act (CAA), 2021.

The rule requires health plans, health insurance issuers offering group or individual health insurance coverage, and health benefits plans offered to federal employees to submit key data to the Departments, which will work through the HHS Assistant Secretary for Planning and Evaluation (ASPE) to publish a report on prescription drug pricing trends and rebates, as well as their impact on premiums and consumers’ out-of-pocket costs.

The interim final rule also requires plans and health insurers to provide the Departments with an annual overview of their top 50 drugs across key areas of concern annually, including:

General information regarding the plan or coverage;
Enrollment and premium information, including average monthly premiums paid by employees versus employers;
Total health care spending, broken down by type of cost (hospital care; primary care; specialty care; prescription drugs; and other medical costs, including wellness services), including prescription drug spending by enrollees versus employers and issuers;
The 50 most frequently dispensed brand prescription drugs;
The 50 costliest prescription drugs by total annual spending;
The 50 prescription drugs with the greatest increase in plan or coverage expenditures from the previous year;
Prescription drug rebates, fees, and other remuneration paid by drug manufacturers to the plan or issuer in each therapeutic class of drugs, as well as for each of the 25 drugs that yielded the highest amount of rebates; and
The impact of prescription drug rebates, fees, and other remuneration on premiums and out-of-pocket costs.

The rule provides that plan sponsors, issuers, and FEHB carriers generally will be required to submit this information aggregated at the state/market level, rather than separately for each plan. To ensure that the Departments and Office of Personnel Management are able to conduct meaningful data analysis and identify prescription drug trends, the rule also provides uniform standards and definitions, including for identifying prescription drugs regardless of the dosage strength, package size, or mode of delivery.

A CMS fact sheet published along with the rule Shares more details about how data will be collected and analyzed and other information on the data submission requirements.

The new data submission requirements will apply starting with data from the 2020 calendar year. However, the Departments are deferring enforcement of the new requirements until December 27, 2022, to give regulated entities time to come into compliance. This means the required information for 2020 and 2021 is due by December 27, 2022, although it may be submitted sooner.

The extended deadline for reporting is the result of an exercise of discretion by the Departments. Technically, the CAA requires plans and issuers to begin submitting the required information to the Departments by December 27, 2021, and to submit this information by June 1 of each year thereafter. However, the Departments are exercising discretion to provide temporary deferral of enforcement with regard to the December 27, 2021 and June 1, 2022 deadlines. Consequently, the Departments say they will not initiate enforcement action against a plan or issuer that submits the required information for 2020 and 2021 by December 27, 2022. OPM also will allow its FEHB carriers to report information for 2020 and 2021 by December 27, 2022.

The Departments anticipate releasing their first report in June 2023 and biennially thereafter.

Along with publishing the rules, the Department invited public comments on its provisions. Comments on this IFC are due at 5 p.m. on January 24, 2022.

The Departments say additional information on prescription drug rebates, fees, and other remunerations paid by drug manufacturers to plans, issuers, and pharmacy benefit managers—including the top 25 drugs generating the highest rebate amounts—will help the Departments understand and report on prescription drug costs, and how they fluctuate over time.

In addition to preparing to meet the requirements in today’s rules, plans and insurers also need to prepare to comply with two earlier interim final rules (published on July 13, 2021and October 7, 2021, respectively) and a notice of proposed rulemaking (published on September 16, 2021).