quickly to implement and communicate 2024 health spending account (“HFSA”), high deductible health plan amounts relevant to determining eligibility to contribute to a medical savings account (“MSA”), adoption credit and exclusion limits, and other inflation-adjusted limitations relevant to the annual enrollment, withholding and other year-end tax and benefit planning of workers and their families to assist workers to take into account these adjustments during 2024 benefit enrollment and tax planning. 

The Internal Revenue Service announced the 2024 HFSA, MSA and other a multitude of other adjustments likely to impact 2024 benefit elections, withholding and other tax planning for workers in Rev. Proc. 2023-34  (“Revenue Procedure”) on Thursday, November 9, 2023.

HFSA, HDHP & MSA, Adoption & Other Adjustments Impacting Cafeteria Plan Elections

The Revenue Procedure announces a host of inflation adjustments that could impact employee’s 2024 cafeteria plan and health plan elections.

HFSA Limit. For taxable years beginning in 2024, the dollar limitation under Internal Revenue Code § 125(i) on voluntary employee salary reductions for contributions to health flexible spending arrangements (“HFSAs”) is $3,200.

The $3200 HFSA limit for 2024 is a slight increase from the 2023 limit of $3,050.

If the employer’s plan permits the carryover of unused HFSA amounts, employees can carry over up to $640 in 2024. That is $30 over the 2023 carryover amount of $610.

HDHP. The Revenue Procedure also adjusts the deductible required for a health plan to qualify as a “high deductible health plan” (“HDHP”) for which the Code allows tax preferred contributions to Medical Savings Accounts (“MSAs”). As adjusted in the Revenue Procedure, for taxable years beginning in 2024 the term “high deductible health plan” as defined in § 220(c)(2)(A) means:

• For self-only coverage, a health plan that has an annual deductible that is not less than $2,800 and not more than $4,150, and under which the annual out-of-pocket expenses required to be paid (other than for premiums) for covered benefits do not exceed $5,550.
• For family coverage, a health plan that has an annual deductible that is not less than $5,550 and not more than $8,350, and under which the annual out-of-pocket expenses required to be paid (other than for premiums) for covered benefits do not exceed $10,200.

Qualified Small Employer Health Reimbursement Arrangement

For taxable years beginning in 2024, to qualify as a qualified small employer health reimbursement arrangement under § 9831(d), the arrangement must provide that the total amount of payments and reimbursements for  any year cannot exceed $6,150 ($12,450 for family coverage).  

Adoption Assistance Programs & Adoption Credit Limits

For taxable years beginning in 2024, Code § 137(a)(2) caps the amount excludible from an employee’s gross income for the amounts paid or expenses incurred by an employer for qualified adoption expenses furnished pursuant to an adoption assistance program for adoptions by the employee at $16,810, subject to the applicable phase out for taxpayers with adjusted gross income above $252,150.

The amount excludable from an employee’s gross income begins to phase out under § 137(b)(2)(A) for taxpayers with modified adjusted gross income in excess of $252,150 and is completely phased out for taxpayers with modified adjusted gross income of $292,150 or more.

Similarly, for taxable years beginning in 2024, $16,810 is the maximum credit allowed under § 23 for an adoption of a special needs child as well as for other adoptions.  The otherwise available adoption credit begins to phase out under § 23(b)(2)(A) for taxpayers with modified adjusted gross income in excess of $252,150 and is completely phased out for taxpayers with modified adjusted gross income of $292,150 or more.

Child Tax Credit

For taxable years beginning in 2024, the amount used in Code § 24(d)(1)(A) to determine the amount of credit under § 24 that may be refundable is $1,700. .06 Earned Income Credit. (1) In general. For taxable years beginning in 2024, the following amounts are used to determine the earned income credit under § 32(b). The “earned income amount” is the amount of earned income at or above which the maximum amount of the earned income credit is allowed. The “threshold phaseout amount” is the amount of adjusted gross income (or, if greater, earned income) above which the maximum amount of the credit begins to phase out. The “completed phaseout amount” is the amount of adjusted gross income (or, if greater, earned income) at or above which no credit is allowed. The threshold phaseout amounts and the completed phaseout amounts shown in the table below for married taxpayers filing a joint return include the increase provided in § 32(b)(2)(B), as adjusted for inflation for taxable years beginning in 2024. The threshold phaseout amounts and the completed phaseout amounts shown in the table below for taxpayers with all other filing statuses also apply to married taxpayers who are not filing a joint return and satisfy the special rules for separated spouses in § 32(d).

Number of Qualifying Children

For taxable years beginning in 2024:

• The standard deduction amount for an individual who may be claimed as a dependent by another taxpayer cannot exceed the greater of (1) $1,300, or (2) the sum of $450 and the individual’s earned income; and
• The additional standard deduction amount for the aged or the blind is $1,550. This additional standard deduction amount is increased to $1,950 if the individual is also unmarried and not a surviving spouse.

Qualified Transportation Fringe Benefit

For taxable years beginning in 2024, the monthly limitation under § 132(f)(2)(A) regarding the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any transit pass is $315. The monthly limitation under § 132(f)(2)(B) regarding the fringe benefit exclusion amount for qualified parking is $315.

Eligible Long-Term Care Premiums & Periodic Payments

For taxable years beginning in 2024, the limitations under § 213(d)(10), regarding eligible long-term care premiums includible in the term “medical care”, as adjusted for inflation, are as follows:

For calendar year 2024, the stated dollar amount of the per diem limitation under § 7702B(d)(4), regarding periodic payments received under a qualified long-term care insurance contract or periodic payments received under a life insurance contract that are treated as paid by reason of the death of a chronically ill individual, is $410.

2024 Income Tax Tables and Standard Exemption amounts just released by the Internal Revenue Service (“IRS”) may help employees and their families in updating their W-4 withholding and planning certain employee benefit or other elections for 2024.

The updated 2024 Income Tax Rate tables included in Revenue Procedure 2023-34, released by the IRS on October 9, 2023 are as follows:

TABLE 1 – Section 1(j)(2)(A) –Married Individuals Filing Joint Returns and Surviving Spouses

TABLE 2 – Section 1(j)(2)(B) – Heads of Households

TABLE 3 – Section 1(j)(2)(C) – Unmarried Individuals (other than Surviving Spouses and Heads of Households)

TABLE 4 – Section 1(j)(2)(D) – Married Individuals Filing Separate Returns

TABLE 5 – Section 1(j)(2)(E) – Estates and Trusts

For taxable years beginning in 2024, $1,300 is the amount used for purposes of § 1(g)(7) to determine whether a parent may elect to include a child’s gross income in the parent’s gross income and to calculate the “kiddie tax.” For example, one of the requirements for the parental election is that a child’s gross income is more than the amount referenced in § 1(g)(4)(A)(ii)(I) but less than 10 times that amount; thus, a child’s gross income for 2024 must be more than $1,300 but less than $13,000.the amount in § 1(g)(4)(A)(ii)(I), which is used to reduce the net unearned income reported on the child’s return that is subject to the “kiddie tax,” is $1,300. This $1,300 amount also is the same as the amount provided in § 63(c)(5)(A), as adjusted for inflation.

For taxable years beginning in 2024, the standard deduction amounts under § 63(c)(2) are as follows:

For More Information

We hope this update is helpful. For more information about this or other labor and employment developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.

About 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 of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

Scribe for the ABA JCEB Annual Agency Meeting with OCR, Vice Chair of the ABA International Section Life Sciences Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation GroupMs. Stamer’s work throughout her 30 plus year career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns.  As a part of this work, she has continuously and extensively worked with domestic and international hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; EMR, claims, payroll and other technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies.

Ms. Stamer is most widely recognized for her decades-long leading edge work, scholarship and thought leadership on health and other privacy and data security and other health industry legal, public policy and operational concerns.  This  involvement encompasses helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve  sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology,  data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care;  internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement;  and other strategic and operational concerns.

Author of leading works on HIPAA and a multitude of other health care, health plan and other health industry matters, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

• OCR Video Touts HIPAA Compliance To Avoid Costly HIPAA Penalties & Manage Cybersecurity Risks
• Work Opportunities Tax Credit Available For Certain Hires Through 2025
• DOL Sues 7-11 Franchise Owners Association Head for FLSA Pay, Record Keeping Violations
• IRS Shares Voluntary Correction Program Updates & Tips
• Labor Department Mutual of Omaha Group Companies Warns Insurers, Plans To Timely Decide Insurability In ERISA-Covered Life, Disability & Other Plans
• $80,000 Penalty Confirms Health Plans Exposure For Violating HIPAA Access Rights
• $4.4 Million Warning About Proper Billing On Government Projects
• OSHA Proposing To Expand Third Parties Allowed To Accompany Employees During Inspections
• Employers Should Prepare for Proposed DOL Rules To Disqualify Additional 4 Million Workers For FLSA Exempt Status
• Use Of New Form I-9 Employment Eligibility Verification Form Released 8/1 Permitted Now; Mandatory After 11/1
• Business Leaders Serve Jail Time For Employment Tax Crimes   
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

Health plans, health care providers, healthcare clearinghouses and their business associates (“Covered Entities” should check out this new Office of Civil Rights (“OCR”) video intended to educate health care industry players about real world cyber-attack trends from OCR breach reports, OCR investigations and how implementation of appropriate Health Insurance Portability & Accountability Act (“HIPAA”) Security Rile compliance can mitigate their exposure to massive HIPAA penalties or settlements increasingly imposed against Covered Entities following common cyber-attacks.

Cyber Events Trigger Substantial HIPAA Exposure Unless Security Rule Met

The HIPAA Security Rule at 45 C.F.R. § 164.312(b) requires a covered entity to implement hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use electronic protected health information (“ePHI”).

Inadequate HIPAA Security Rule Compliance Often Triggers Painful HIPAA Penalties Following Cyber Events

The $1.6 million civil monetary penalty (“CMP”) assessed against the Texas Health and Human Services Commission (“TX HHSC”) for HIPAA Security Rule and other breaches between 2013 and 2017 committed by a predecessor agency, the Department of Aging and Disability Services (“DADS”) is one of a mounting list of high dollar OCR CMPs and settlements paid by Covered Entities after OCR investigations into cyber events found Security Rule or other HIPAA deficiencies.

Like most other large HIPAA CMPs and settlements paid to avoid CMPs, a review of the TX HSSC CMP events makes clear that the large penalty resulted mostly because of inadequate assessment and oversight of security, rather than the actual breach itself that prompted the investigation leading to the CMP assessment.

The $1.6 million CMPs assessment against TX HHSC resulted after OCR investigated a 2015 breach report made by DADS. On June 11, 2015, DADS submitted a Breach Notification Report (“Report”) notifying OCR that on April 21, 2015 names, addresses, social security numbers, treatment information and other electronic protected health information (“ePHI”) of 6,617 individuals was viewable over the internet when a software coding flaw allowed prohibited access to ePHI with access credentials when DADS moved an internal application from a private, secure server to a public server.

OCR initiated a compliance review of DADS on June 23, 2015 in response to the breach notification.

OCR found that by placing the CLASS/DBMD application on their public server without requiring users to provide access credentials, TX HHSC violated HIPAA by failing to implement access controls on all of its systems and applications throughout its enterprise in violation of 45 C.F.R. § 164.312(a)(l).

OCR’s investigation determined that, in addition to that impermissible disclosure, DADS violated the HIPAA Security Rule by failing to conduct an enterprise-wide risk analysis and implement access and audit controls on Community Living Assistance and Support Services and Deaf Blind with Multiple Disabilities (“CLASS/DBMD”) program information systems and applications intended to collect and report information about “Utilization Management and Review” activities to the Centers for Medicare & Medicaid Services (“CMS”) for the CLASS/DBMD waiver programs.. The CMS waiver programs required DADS to collect and report to CMS applicant and enrollee community and institutional service choice, Level of Care, Plan of Care, waiver provider choice and other waiver program performance data for CLASS and DBMD as part of a required evidentiary report on all §1915(c) waiver programs. The CLASS/DBMD application glitch compromised the ePHI by allowing an undetermined number of unauthorized users to view the ePHI without verifying user credentials. TX HHSC learned of the breach from an unauthorized user who accessed ePHI in the application without being required to input user credentials. Because of inadequate audit controls, DADS was unable to determine how many unauthorized persons accessed individuals’ ePHI.

In the course of its investigation, OCR requested in its June 23, 2015 Data Request that DADS provide a copy of its current HIPAA administrative and technical policies and procedures. As DADS provided no evidence that the application was capable of auditing user access after it was moved to the unsecure public server as required by 45 C.F.R. § 164.312(b) with its response, OCR also concluded from its investigation that TX HHSC failed to implement audit controls to all of its systems and applications, like the application involved in the breach, as required by 45 C.F.R. § 164.312(b).

Beyond these violations, OCR also found that DADS also violated the HIPAA Security Rule by failing to conduct the required accurate and thorough enterprise wised risk analysis required by the HIPAA Security Rule.  In this respect, the HIPAA Security Rule at 45 C.F.R. § 164.308(a)(1)(ii)(A) requires a covered entity to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI it holds.  In its August 31, 2015 response to OCR’s Data Request dated July 23, 2015, DADS acknowledged that, while it had performed ”risk assessment activities” on individual applications and servers, it never performed an “agency-wide” security risk analysis.   On July 28, 2017, OCR received the documentation that DADS represented to be the documentation of its risk analysis.  After reviewing this evidence, OCR additionally found DADS violated the HIPAA Security Rule by failing to conduct an enterprise-wide risk analysis and implement access and audit controls.

On May 23, 2018, OCR issued a Letter of Opportunity and informed TX HHSC that OCR’s investigation indicated that TX HHSC failed to comply with the Privacy and Security Rules, which remained unresolved despite OCR’s attempts to do so. The letter stated that pursuant to 45 C.F.R. § 160.312(a)(3), OCR was informing TX HHSC of the preliminary indications of non-compliance and providing TX HHSC with an opportunity to submit written evidence of mitigating factors under 45 C.F.R. § 160.408 or affirmative defenses under 45 C.F.R. § 160.410 for OCR’s consideration in making a CMP determination under 45 C.F.R. § 160.404. The letter identified each area of noncompliance.  It also stated that TX HHSC also could submit written evidence to support a waiver of a CMP for the indicated areas of non-compliance.

Although the designated representative for TX HHSC as DADS successor received the Letter of Opportunity on May 24, 2018, TX HHSC did not provide any written evidence of mitigating factors under 45 C.F.R. § 160.408 or affirmative defenses under 4S C.F.R. § 160.410 for OCR’s consideration in making the CMP determination or submit any written evidence to support a waiver of a CMP for the indicated areas of non-compliance. Accordingly, after securing the requisite approval from the Justice Department, OCR issued a Notice of Proposed Determination of Civil Monetary Penalties (“Proposed CMP”) on July 29, 2019.

As explained by the Proposed CMP, as amended by the HITECH Act, Section 13410, 42 U.S.C. § 1320d-5(a)(3), HIPAA authorizes OCR as the designated representative of the Secretary of HHS to impose CMPs against a covered entity for post-February 18, 2009 HIPAA Privacy or Security Rule violations.  These current CMP provisions provide the following rules for the assessment of CMPs for such violations:

• A minimum of $100 for each violation where the covered entity or business associate did not know and, by exercising reasonable diligence, would not have known that the covered entity or business associate violated such provision, except that the total amount imposed on the covered entity or business associate for all violations of an identical requirement or prohibition during a calendar year may not exceed $25,000.
• A minimum of $1,000 for each violation due to reasonable cause and not to willful neglect, except that the total amount imposed on the covered entity or business associate for all violations of an identical requirement or prohibition during a calendar year may not exceed $100,000. Reasonable cause means an act or omission in which a covered. entity or business associate knew, or by exercising reasonable diligence would have known, that the act or omission violated an administrative simplification provision, but in which the covered entity or business associate did not act with willful neglect.
• A minimum of $10,000 for each violation due to willful neglect and corrected within 30 days, except that the total amount imposed on the covered entity or business associate for all violations of an identical requirement or prohibition during a calendar year may not exceed $250,000.
• A minimum of$50,000 for each violation due to willful neglect and uncorrected within 30 days, except that the total amount imposed on the covered entity or business associate for all violations of an identical requirement or prohibition during a calendar year may not exceed $1,500,000.

By law, OCR adjusts the CMP ranges and calendar year cap for each penalty tier for inflation.  The adjusted amounts are applicable only to CMPs whose violations occurred after November 2, 2015.

The Proposed CMP included notice of the CMPs OCR intended to impose CMPs totaling $1.6 million for the violations.  Characterizing each of the violations as due to reasonable cause and not willful neglect, the Proposed CMP Notice made note that OCR was authorized by statute to assess penalties of up to $50,000 per day for each day of the identified violations due for reasonable cause, rather than willful neglect, but authorized OCR to adjust the penalties in light of aggravating and mitigating factors.  The Proposed CMP stated that in arriving at the lesser daily penalty amount, OCR considered as mitigating factors that:

• The violations did not result in any known physical, financial, or reputational harm to any individuals nor did it hinder any individual’s ability to obtain health care;  and
• TX HHSC immediately removed the application once it received a report that unauthorized users could access the ePHI of individual beneficiaries.

However, OCR also took note that it viewed DADS failure to act promptly to remediate the breach and to keep a commitment made to OCR in August, 2015 timely to conduct and complete the agency wide risk analysis by August 31, 2016 as an aggravating factor.  Considering these factors, the Proposed CMP notified TX HHSC that OCR intended to assess a daily penalty amount of$1,000 per day ($1,141 after November 2, 2015) per violation capped at $100,000 per calendar year per violation. Applying these amounts, the CMP notified TX HHSC that OCR intended to impose CMPs totaling $1.6 million, as follows:

• Impermissible disclosures in violation of 45 C.F.R. § 164.502(a), a $100,000 CMP
• Inadequate access controls in violation of 45 C.F .R. § 164.312(a)(l), a $500,000 CMP
• Inadequate audit controls in violation of 45 C.F.R. § 164.312(b), a $500,000 CMP
• Failure to perform required enterprise wide risk analysis in violation of 45 C.F.R. § 164.308(a)(l)(ii)(a), a $500,000.

After TX HHSC , as successor to DADS, did not file a request for hearing before an administrative law judge within the 90 days, OCR imposed the $1.6 million CMP in dated  October 25, 2019 made public on November 7, 2019.

Video Shows Covered Entities How Compliance Can Mitigate HIPAA Cyber Liability Risks

While the TX HHSC CMP and other OCR enforcement show the risks of deficient Security Rule compliance if a cyber event happens, the new video shows how effective compliance can mitigate HIPAA risks.

Topics include:

• OCR breach and investigation trend analysis
• Common attack vectors
• OCR investigations of weaknesses that led to or contributed to breaches
• How Security Rule compliance can help regulated entities defend against cyber-attacks

With OCR promising to continue its enforcement, all covered entities and business associates should verify the existence and adequacy of their existing enterprise wide risk assessments and safeguards and procedures for monitoring, investigating potential security risks and other breaches and other HIPAA compliance oversight.

Beyond the substantial HIPAA CMPs assessed, health plans, insurers, their fiduciaries and administrative or other service providers serving as business associates need to keep in mind their likely exposure to liability and expenses from fiduciary responsibility breaches under the Employee Retirement Income Security Act of 1974, state insurance and other data security and breach requireents, contracts and other obligations

When managing HIPAA and other compliance and risks, health plans and other covered entities and business associates should seek assistance in conducting their assessments as well as responding to any preexisting and emergent breach or other compliance concerns within the scope of attorney-client privilege from qualified legal counsel with the necessary knowledge and experience of HIPAA and other federal and state laws, regulations and administrative and judicial decisions that define and shape their exposure.  In the event of a breach or other compliance concern, timely guidance and representation by legal counsel with both experience of these requirements and with dealing with OCR and other agencies may help mitigate exposures by expediting timely and appropriate response.

For More Information

We hope this update is helpful. For more information about this or other labor and employment developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.

About 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 of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

Scribe for the ABA JCEB Annual Agency Meeting with OCR, Vice Chair of the ABA International Section Life Sciences Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation GroupMs. Stamer’s work throughout her 30 plus year career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns.  As a part of this work, she has continuously and extensively worked with domestic and international hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; EMR, claims, payroll and other technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies.

Ms. Stamer is most widely recognized for her decades-long leading edge work, scholarship and thought leadership on health and other privacy and data security and other health industry legal, public policy and operational concerns.  This  involvement encompasses helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve  sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology,  data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care;  internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement;  and other strategic and operational concerns.

Author of leading works on HIPAA and a multitude of other health care, health plan and other health industry matters, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

• $80,000 Penalty Confirms Health Plans Exposure For Violating HIPAA Access Rights
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• Use Of New Form I-9 Employment Eligibility Verification Form Released 8/1 Permitted Now; Mandatory After 11/1
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• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
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• 2019 OCR Enforcement Shows Getting Defensibly HIPAA Compliant Necessary In 2020!
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• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
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• College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS  
• Business Leaders Serve Jail Time For Employment Tax Crimes   
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

A suit filed by the Department of Labor on September 29, 2023 against the operator and owner of four western Michigan 7-Eleven convenience stores warns other businesses against paying workers “off the books” and other failures to comply with the Fair Labor Standards Act “(“FLSA”) pay and recordkeeping requirements.

The Labor Department sued Ali & Companies LLC and its owner, Ali Haider, in the U.S. District Court for the Western District of Michigan after an investigation found two stores in East Lansing, one in Perry and one in Zeeland Michigan operated and owned by Haider paid employees “off the books,” failed to pay required overtime and inaccuracies in the employer’s payroll records. Haider serves as president of the Michigan Franchise Owners Association of 7-Eleven. 

An investigation by the department’s Wage and Hour Division determined the Okemos-based company and its owner did not pay workers overtime at time and one-half their regular rate of pay for hours over 40 in a workweek from at least November 17, 2020 through November 16, 2022. Instead, Ali & Companies and Haider paid some workers off the books. The division also learned the employer failed to maintain accurate records of employee hours worked and pay received.

The lawsuit seeks to recover $36,528 in back wages and damages for 13 workers employed by Ali & Companies LLC.  

For More Information

We hope this update is helpful. Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn  Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy Group.

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. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also may be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

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• $4.4 Million Warning About Proper Billing On Government Projects
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• Employers Should Prepare for Proposed DOL Rules To Disqualify Additional 4 Million Workers For FLSA Exempt Status
• Use Of New Form I-9 Employment Eligibility Verification Form Released 8/1 Permitted Now; Mandatory After 11/1
• Education Association Union Sued For Race Discrimination
• Biden-⁠Harris Administration Ending COVID-⁠19 Vaccination Requirements For Federal Employees, Contractors, International Travelers, Head Start Educators & CMS-Certified Facilities
• Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities
• Labor Department Shares Resources on PERM and H-2A Program Updates
• Trucking Cos.’ $1.25M Sex Discrimination Warns Other Employers
• $167K In Backpay and Penalties Restaurant Paying For FLSA Violations Warns Other Businesses
• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
• 2/28 New Comment Deadline For NLRB Proposal To Exclude College Work Study Student Workers From NLRA Coverage
• Don’t Get Stuck Paying Another Employer’s Overtime Or Other Backpay
• 2019 OCR Enforcement Shows Getting Defensibly HIPAA Compliant Necessary In 2020!
• DOJ Omnicare/CVS Suit Highlights Potential Pharmacy Benefit Claims Abuse Exposure For Health Plans, Member Safety Risk
• OSHA Seeks Small Business Volunteers For Tree Care Safety Panel
• NLRB Restores Pre-Obama Era Union Dues Checkoff Rule
• $1.6M HIPAA Penalty Largely Caused By Inadequate Security Assessments & Oversight  
• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
• NLRB Order Directs Settlement Of McDonald’s Unfair Labor Practice Complaints Including Joint Employer Liability Charges Against McDonald’s USA
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• Business Leaders Serve Jail Time For Employment Tax Crimes   
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Employers should double check the defensibility of their pay and other compensation practices in light of the rollout of a social media video campaign called “Level The Paying Field” by the U.S. Equal Employment Opportunity Commission (EEOC) to commemorate the anniversary of the Equal Pay Act of 1963 on June 10.

The Equal Pay Act of 1963 prohibits sex-based wage discrimination and requires that men and women in the same work establishment receive equal pay for equal work in jobs that are substantially equal and performed under similar working conditions.

#LevelThePayingField starts June 9 and will last through Aug. 20 to coincide with the FIFA Women’s World Cup 2023, which starts July 20 in Australia and New Zealand.

Although the Equal Pay Act was passed 60 years ago, sex-based pay discrimination remains a problem in the workforce. Each year there are still hundreds of pay discrimination charges filed with the EEOC, including more than 950 in Fiscal Year 2022, which was the first increase in Equal Pay Act charges in three years.

Because few workers know their co-workers’ salaries, pay discrimination is often hidden and unreported. When workers do report pay discrimination to the EEOC, the agency has found unequal pay in a variety of industries and sectors, including information technology, entertainment, construction, and retail.

As part of the campaign, the EEOC will provide Level The Paying Field graphics the public can use to show their support for equal pay as well as an updated list of notable EEOC litigation involving pay discrimination and a 2023 Equal Pay Infographic.

The outreach is part of a broader effort by EEOC to expand enforcement of equal pay and other discrimination laws. In light of these efforts, employers should take immediate steps to update policies, postings, training and practices to ensure their ability to defend their compliance with the equal pat and other federal no discrimination laws.

More Information

We hope this update is helpful. For more information about these or other health 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.  

Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website 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.  

About 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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

• Education Association Union Sued For Race Discrimination
• Biden-⁠Harris Administration Ending COVID-⁠19 Vaccination Requirements For Federal Employees, Contractors, International Travelers, Head Start Educators & CMS-Certified Facilities
• Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities
• Labor Department Shares Resources on PERM and H-2A Program Updates
• Trucking Cos.’ $1.25M Sex Discrimination Warns Other Employers
• $167K In Backpay and Penalties Restaurant Paying For FLSA Violations Warns Other Businesses
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• New PBGC Pension Rules Effective 3/5 May Require Action On Retirement Plans
• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
• 2/28 New Comment Deadline For NLRB Proposal To Exclude College Work Study Student Workers From NLRA Coverage
• Don’t Get Stuck Paying Another Employer’s Overtime Or Other Backpay
• 2019 OCR Enforcement Shows Getting Defensibly HIPAA Compliant Necessary In 2020!
• DOJ Omnicare/CVS Suit Highlights Potential Pharmacy Benefit Claims Abuse Exposure For Health Plans, Member Safety Risk
• OSHA Seeks Small Business Volunteers For Tree Care Safety Panel
• NLRB Restores Pre-Obama Era Union Dues Checkoff Rule
• $1.6M HIPAA Penalty Largely Caused By Inadequate Security Assessments & Oversight  
• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
• NLRB Order Directs Settlement Of McDonald’s Unfair Labor Practice Complaints Including Joint Employer Liability Charges Against McDonald’s USA  
• 2018 US National Health Expenditures Grew Again  
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• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Updated guidance published by the Equal Employment Opportunity Commission (“EEOC”) warns employers that the end of the COVID-19 health care emergency did not automatically end employers’ responsibilities to provide accommodations granted during the COVID-19 health care emergency, to consider new requests for accommodation from applicants or employees claiming disability from COVID-19 or other pandemic related conditions, or to comply with the medical confidentiality, interference and retaliation rules of the Americans with Disabilities Act.

EEOC Update COVID-19 Guidance For End Of Emergency

On May 15, 2023, the EEOC updated its publication on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Guidance”) to add supplement its prior guidance about the effect of the ADA and other federal discrimination laws during the COVID-19 health care emergency (the “Emergency”) to include guidance on the effect of the end of the federal declaration of the COVID-19 public health emergency that happened on May 11, 2023.

Since its original publication, the Guidance has made clear that the Americans with Disabilities Act (ADA) and the Rehabilitation Act workplace disability nondiscrimination, reasonable accommodation, and employer medical examinations and inquiries); Title VII of the Civil Rights Act prohibitions against race, color, national origin, religion, and sex, including pregnancy; Age Discrimination in Employment Act prohibitions against individuals age 40 or older; and the Genetic Information Nondiscrimination Act rules (collectively, the “EEO Laws”) remain in effect during the Emergency.  The Guidance also addressed a wide range of issues about how these EEO Laws applied during the Emergency and to COVID-19, including disability-related inquiries and medical examinations, how the definition of disability may apply to COVID-19 and Long COVID, confidentiality, reasonable accommodation based on disability, harassment, and vaccinations (including reasonable accommodation based on disability or religious beliefs). The May 15, 2023 updates to the Guidance address the implications of the May 11, 2023 end of the Emergency on these obligations as well as updates previously shared guidance on employer COVID-19 screening, testing, vaccination and other practices following the end of the Emergency.

Among other things, the Guidance confirms an employer must maintain and keep all information about a COVID-19 or any other illness or other medical information about an applicant or employee confidential and in a separate file in accordance with the ADA medical confidentiality rules.  The Guidance also confirms despite the end of the Emergency that an employer:

• Should consult and follow current Centers for Disease Control (“CDC”) guidance about when and how long a worker with COVID-19 or COVID-19 symptoms should stay home or may safely return to the workplace;
• May exclude employees with COVID-19 or COVID-19 symptoms associated with the workplace when consistent with CDC-recommended isolation protocols.  
• May ask all employees who will be physically entering the workplace or otherwise working in close proximity with others if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC and if they have been tested for COVID-19 and if so, ask about the result;
• May not ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or COVID-19 symptoms;
• May only require employees to submit to having their temperature taken, COVID-19 testing or other medical screening when the employer can demonstrate that the testing meets the ADA “business necessity” standard or otherwise follows current CDC recommendations;
• May ask an employee calling in sick, reporting illness while at work, or returning from travel whether the employee has COVID-19 or common symptoms of COVID-19 as identified by the CDC and if the employee responds affirmatively, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. The Guidance also addresses what other information an employer may ask an employee calling in sick, reporting illness while in the workplace, or returning following a period of absence due to COVID-19 infection.

The Guidance also makes clear the EEOC interprets the ADA as requiring covered employers to continue to comply with the ADA and the Rehabilitation Act requirements for evaluating and granting requests for accommodation received from applicants or employees during and after the end of the Emergency including requests by applicants or employees that may qualify as disabled due to long-COVID and other pandemic-related conditions.  The Guidance makes clear that this generally means that a covered employer must evaluate accommodations granted during the Emergency or requested post-Emergency to assess whether an employee or applicant is disabled within the meaning of the ADA and if so, if there exists a need to provide reasonable accommodation based on individualized circumstances. 

Regarding accommodation requests for employees qualifying as disabled from long-COVID, the Guidance shares common examples of possible reasonable accommodations, including a quiet workspace, use of noise canceling devices, and uninterrupted work time to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.

The updated Guidance also warns employers of their continued responsibility to remain alert for and prevent COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work as well as to prevent retaliation in the workplace against employees or applicants in violation of the ADA or other EEO Laws.

In all cases, the updated Guidance also alerts employers that changed risks, CDC guidance and other circumstances following the end of the Emergency may eliminate or undermine an employer’s ability to justify the denial of COVID-19 related accommodations as consistent with current CDC guidelines or as a business necessity.   

Employers Face Heightened COVID-19 Related Disability Risks

EEOC complaint and enforcement data as well as private litigation trends signal the advisability for covered employers to prepare to defend against ADA and Rehabilitation Act disability or other EEO Law discrimination, accommodation, leave and retaliation complaints.  Between April 2020 and December 2021, for instance, the EEOC reports receiving roughly 6,225 COVID-related discrimination charges.  The EEOC already has launched a plethora of lawsuits and other enforcement actions in response to many of these complaints.  See, e.g. EEOC Sues Total Systems Services for Disability Discrimination and Retaliation (March 29, 2023);  EEOC Sues United Labor Agency for Disability Discrimination (February 15, 2023).  The EEOC’s inclusion of ’employment discrimination associated with the COVID-19 pandemic and other threats to public health’ as among its priorities in its EEOC Draft Strategic Enforcement Plan published in January, 2023 reflects it plans to continue this heightened enforcement activity in the 2023 fiscal year paying particular attention to “discriminatory practices associated with the COVID-19 pandemic and other threats to public health,” such as:

• pandemic-related harassment based on race, national origin, religion, disability, age, gender, or other protected characteristics;
• unlawful denials of accommodations to individuals with disabilities or individuals with sincerely held religious beliefs, practices, or observances;
• unlawful medical inquiries, improper direct threat determinations, or other discrimination related to disabilities that arose during or were exacerbated by the pandemic;
• discrimination against persons who have an actual disability or are regarded as having a disability related to COVID-19, including individuals with long COVID, and pandemic-related caregiver discrimination based on a protected characteristic.”

In light of the aggressive EEOC complaint and enforcement record, all employers covered by the ADA, the Rehabilitation Act or other EEO Laws should be concerned about their likely elevated exposure to COVID-19 associated disability or other related EEO Law charges and lawsuits.  should review and update their existing workplace practices, policies, accommodation practices and decisions, and related communications to verify their defensibility in light of the end of the Emergency.  When conducting this review, most employers also should reassess the continued appropriateness of prior or current accommodation decisions in light of changed CDC guidance and other circumstances that may impact on the business’s ability to justify these decisions in light of changed circumstances.  Because of the likely sensitivity of discussions and analysis arising in connection with these assessments, employers may wish to seek the advice of qualified legal counsel regarding these evaluations as well as opportunities to structure them to safeguard potentially sensitive discussions within the protection of attorney-client privilege. 

More Information

We hope this update is helpful. For more information about these or other health 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.  

Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website 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.  

About 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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

• Education Association Union Sued For Race Discrimination
• Biden-⁠Harris Administration Ending COVID-⁠19 Vaccination Requirements For Federal Employees, Contractors, International Travelers, Head Start Educators & CMS-Certified Facilities
• Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities
• Labor Department Shares Resources on PERM and H-2A Program Updates
• Trucking Cos.’ $1.25M Sex Discrimination Warns Other Employers
• $167K In Backpay and Penalties Restaurant Paying For FLSA Violations Warns Other Businesses
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• New PBGC Pension Rules Effective 3/5 May Require Action On Retirement Plans
• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
• 2/28 New Comment Deadline For NLRB Proposal To Exclude College Work Study Student Workers From NLRA Coverage
• Don’t Get Stuck Paying Another Employer’s Overtime Or Other Backpay
• 2019 OCR Enforcement Shows Getting Defensibly HIPAA Compliant Necessary In 2020!
• DOJ Omnicare/CVS Suit Highlights Potential Pharmacy Benefit Claims Abuse Exposure For Health Plans, Member Safety Risk
• OSHA Seeks Small Business Volunteers For Tree Care Safety Panel
• NLRB Restores Pre-Obama Era Union Dues Checkoff Rule
• $1.6M HIPAA Penalty Largely Caused By Inadequate Security Assessments & Oversight  
• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
• NLRB Order Directs Settlement Of McDonald’s Unfair Labor Practice Complaints Including Joint Employer Liability Charges Against McDonald’s USA  
• 2018 US National Health Expenditures Grew Again  
• ONC Patient Matching for Prescription Drug Monitoring Program Slides Available  
• SBA Hosts Employee Benefits Roundtable 11/21  
• College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS  
• Business Leaders Serve Jail Time For Employment Tax Crimes  
• New $2.15M OCR Penalty Shows Health Plans Risks Of HIPAA Violations  
• Proposed NLRB Employee Definition To Exclude College Study Workers  
• DOL Proposing To Allow Default Website ERISA Retirement Plan Disclosures  
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

COVID-19 vaccination requirements for federal contractors and employees, Centers for Medicare and Medicaid (“CMS”) certified health care and other providers, Head Start educators and international travelers implemented in 2021 in response to the COVID-19 health care emergency.

The Whitehouse announced requirements for Federal employees, Federal contractors, and international air travelers will end at the end of the day on May 11, the same day that the COVID-19 public health emergency ends. Additionally, the Department of Health and Human Services (“HHS”) and Department of Homeland Security (“DHS”) also announced they are starting the process to end their vaccination requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border at a date to be announced soon.

Once the applicable mandate ends, organizations subject to these mandates, like private sector organizations not currently subject to them, will need to decide whether and when their organizations will impose these mandates as part of their occupational health and safety policies.

Organizations deciding to continue requiring vaccination will need to design their program to appropriately accommodate disability and religious concerns of employees in accordance with Equal Employment Opportunity Commission rules.

All organizations also need to use care to avoid discrimination or retaliation against workers in violation of federal laws and to address requests for accommodation for employees suffering from long COVID.

More Information

We hope this update is helpful. For more information about the these or other health 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.  

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.  

About 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 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pandemic and other health and safety, financial, workforce and other organizational crisis, change and workforce, employee benefit, health care and other operations planning, preparedness and response for more than 30 years. As a part of this work, she regularly advises businesses and government leaders on an an demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to operational, health care, natural disaster, economic and other crisis and change.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privaitization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as: 

• Autism Health Plan Exclusions and Limitations May Trigger Mental Health Parity and Addiction Equity Act Liabilities
• Labor Department Shares Resources on PERM and H-2A Program Updates
• Trucking Cos.’ $1.25M Sex Discrimination warns Other Employers
• $167K In Backpay and Penalties Restaurant Paying For FLSA Violations Warns Other Businesses
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• Employers Prepare For Employment Tax Withholding Changes; Review & Comment On Proposed Rule Changes
• New PBGC Pension Rules Effective 3/5 May Require Action On Retirement Plans
• Revise Health Plan HIPAA Records Access Rules & Procedures To Use Newly Flexibility On Charging, Responding To Third Party PHI Requests
• 2/28 New Comment Deadline For NLRB Proposal To Exclude College Work Study Student Workers From NLRA Coverage
• Don’t Get Stuck Paying Another Employer’s Overtime Or Other Backpay
• 2019 OCR Enforcement Shows Getting Defensibly HIPAA Compliant Necessary In 2020!
• DOJ Omnicare/CVS Suit Highlights Potential Pharmacy Benefit Claims Abuse Exposure For Health Plans, Member Safety Risk
• OSHA Seeks Small Business Volunteers For Tree Care Safety Panel
• NLRB Restores Pre-Obama Era Union Dues Checkoff Rule
• $1.6M HIPAA Penalty Largely Caused By Inadequate Security Assessments & Oversight  
• 10 Former NFL Payers Charged With Defrauding NFL Retiree Health Fund  
• NLRB Order Directs Settlement Of McDonald’s Unfair Labor Practice Complaints Including Joint Employer Liability Charges Against McDonald’s USA  
• 2018 US National Health Expenditures Grew Again  
• ONC Patient Matching for Prescription Drug Monitoring Program Slides Available  
• SBA Hosts Employee Benefits Roundtable 11/21  
• College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS  
• Business Leaders Serve Jail Time For Employment Tax Crimes  
• New $2.15M OCR Penalty Shows Health Plans Risks Of HIPAA Violations  
• Proposed NLRB Employee Definition To Exclude College Study Workers  
• DOL Proposing To Allow Default Website ERISA Retirement Plan Disclosures  
• Salary Threshold Increases Require Employer Review Of Salaried Worker FLSA Exemption Qualification  

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.

Businesse using foreign workers with H-1B visas should check out these webinar materials from the Office of Foreign Labor Certification (OFLC) explaining developments on the new Adverse Effect Wage Rate Rule in the H-2A Program and changes to the new PERM Form ETA-9089 and the PERM Program. Employers of workers hired under these programs must to comply to avoid significant liabilities.

Presentation Materials for the H-2A Program New AEWR Rule:

• OFLC Stakeholder Webinar on New AEWR Rule Recording April 2023
• OFLC Stakeholder Webinar on New AEWR Rule Presentation April 2023

Presentation Materials for the PERM Program:

• OFLC Stakeholder Webinar on New Form ETA 9089 Presentation April 2023
• OFLC Stakeholder Technical Webinar on PERM Modernization Recording April 2023

Also the Labor Department says a OFLC Stakeholder Webinar on New Form ETA 9089 Recording April 2023 will be available soon.

More Information

We hope this update is helpful. For more information about the these or other health 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. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.

About 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 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with gender and other discrimination and others workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. 

A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

U.S. Citizenship and Immigration Services flexibilities first announced in March 2020, to address the COVID-19 pandemic generally now are ended.

USCIS previously notified the public on January 24, 2023 it planned to end its COVID-19 pandemic flexibilities on March 23, 2023. Since no events occurred prompting a change of plans, USCIS let the flexibilities end as planned.

The March 23 end of the flexibilities impacts applicants for new or renewing visas, as well as employers whose I –9 compliance is impacted by visas whose processing deadlines were delayed under the flexibilities.

As a result of the flexibilities end, visa holders, and applicants must respond to any notices or requests from USCIS dated after March 23 by the deadlines listed in the notice or request. This includes:

• Requests for Evidence;
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind;
• Notices of Intent to Terminate regional centers;
• Notices of Intent to Withdraw Temporary Protected Status; and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

Additionally, an individual wishing to file Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), regarding a decision dated after March 23, 2023, you must comply with the deadlines in the form instructions.

USCIS retains discretion to provide certain flexibilities on a case-by-case basis upon request, for applicants or petitioners affected by an emergency or unforeseen circumstance, such as natural catastrophes (hurricanes, wildfires, severe weather, etc.), national emergencies (public health emergencies), or severe illness (including COVID). Please see the Immigration Relief in Emergencies or Unforeseen Circumstances webpage for more information about remaining case-by-case flexibilities

As a reminder, the flexibilities regarding reproduced signatures first announced on March 20, 2020, became policy as announced on July 25, 2022.

More Information

We hope this update is helpful. For more information about the these or other health 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. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.

About 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 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses on I-9 and other foreign worker and many other workforce, worker compensation, payroll and other tax, wage and hour and other compensation, employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, USICS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

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.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving, and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services (“USCIS”) issuing policy guidance governing its mobile biometrics collection and the biometrics collection of benefit requestors in remote locations to s to make it more accessible for certain benefit requestors.

USCIS generally requires applicants for visas or other benefits to schedule and keep a biometrics appointment at a local Application Support Center (ASC) after the applicant files an application, petition, or other benefit request. The person submitting biometrics must bring the Form I-797C and valid, unexpired photo identification (for example, Permanent Resident Card (Form I-551), passport, or driver’s license) to the appointment, if required. USCIS considers a person to have abandoned his or her application, petition, or request if he or she fails to appear for the biometrics appointment unless, by the appointment time, USCIS receives a change of address or rescheduling request that it concludes warrants excusing the failure to appear.

Since some applicants face health, logistical or other legitimate challenges to appearing in person, USCIS intends to make biometric collection more accessible for benefit requestors unable to attend appointments at USCIS Application Support Centers (ASC) due to health or other issues, or because their physical location requires multiple modes of transportation or substantial travel times to reach an ASC, where USCIS generally collects biometrics.

To this end, USCIS is amending the USCIS Policy Manual to:

• Provide circumstances under which USCIS may conduct mobile biometrics collection for benefit requestors who reside in remote locations in relation to ASCs; and
• Provide an alternative method to fingerprint collection, to include fingerprint cards and coordination with other agencies, for certain benefit requestors who live in locations so remote that USCIS mobile biometric services would not be practical.

The availability of remote collection may help employers and their workers seeking visas with restrictions on the workers ability to travel to an on-site collection location. Employers with workers with these challenges should coordinate with the worker and their immigration counsel to ensure they pursue these new opportunities where appropriate.

More Information

We hope this update is helpful. For more information about the these or other health 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. 

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website 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.

About 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 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.

A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends health care, education, DOT, government contractors and a wide range of other employers about drug testing and drug free workplace, discrimination, safety and other employment, benefit and other Human Resources, Guideline Program and other compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns.

Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

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