Weekly Legislative Update March 16, 2020

Lobby Day and Environmental Summit Postponed
Due to current travel concerns and many member companies placing travel bans on international and domestic travel, TIA has made the decision to postpone our Lobby Day and Environmental Summit.

More information and specifics to come.

Thank you for your understanding. 

The Future of the ACA
Recently, the Supreme Court announced that it will hear the latest challenge to the Affordable Care Act (ACA). While the fact that this case would end up before the highest court is not a surprise, the announcement does bring some clarity to the potential timeline and manner in which this case may play out.
The case, which will go before the Supreme Court under the name Texas et al v. United States of America et al, is actually a consolidation of a few different cases. The underlying challenge to the ACA was brought by more than a dozen Republican Attorneys General and two individual plaintiffs. In response a number of Democrat Attorneys General and Governors, and more recently the Democrat-controlled U.S. House of Representatives, have stepped in to defend the law.
So what is this case all about and where does it stand going into the Supreme Court's review?
The foundation of this case originated when the Tax Cuts and Jobs Act (TCJA) of 2017 reduced the penalty for non-compliance with ACA's individual mandate to zero. The parties challenging the ACA have argued that not only did this act render the individual mandate unconstitutional (because it no longer stems from Congress' power to tax) it also rendered the entirety of the ACA unconstitutional.
In December of 2018, a federal district court judge in Texas ruled in favor of the challengers holding that both the individual mandate and the ACA are unconstitutional in light of the TCJA change. The effect of the ruling was stayed and the case was promptly appealed to the 5th Circuit Court of Appeals.
Approximately a year later, in December 2019, the 5th Circuit upheld part of the District Court's decision and remanded the remainder back to that court for reconsideration. Specifically, the 5th Circuit agreed that the reduction of the individual mandate penalty to zero renders the individual mandate unconstitutional. The appellate court did not reach a conclusion on the ACA as a whole and instead remanded that issue to the District Court instructing the District Court to conduct a more thorough analysis of which parts of the ACA could stand on their own, as severable from the unconstitutional individual mandate, and which were inextricably linked to the mandate and therefore unconstitutional in and of themselves. In taking this action, the 5th Circuit stated that the District Court needed to "employ a finer-toothed comb" before reaching a conclusion on whether the ACA as a whole was unconstitutional. The 5th Circuit also instructed the District Court to consider whether the outcome should apply just to the states challenging the law or to the entire country.
Throughout all of this, the Trump Administration has apparently struggled to determine what role it wants to play in the matter. First, declining to defend the law in its entirety, then largely siding with those challenging the law and then suggesting that perhaps only parts of the law are unconstitutional.  
With the 5th Circuit issuing its decision in December, the big question was whether the case would go to the Supreme Court before the November 2020 elections. Particularly given the large role health care issues played in the outcome of the 2018 elections (and the contributing role they played in Democrats assuming control of the House), Republicans were understandably concerned about the prospect of having the case considered before that time, particularly as there have been no formal proposals for a system to replace the ACA if it is deemed to be unconstitutional.
In January, the parties defending the ACA requested the Supreme Court to place the case on an expedited review schedule so that the matter could be addressed in the Court's current term. While granting certiorari in a case only requires the votes of four justices, granting expedited review requires five votes. The Court ultimately declined to fast track the case, setting up Monday's announcement that it will consider the case in its ordinary course and schedule. This means in all likelihood that the case will be argued during the Court's 2020-2021 term which will commence in October 2020.
With the District Court's decision stayed pending Supreme Court review, this means that the ACA status quo will continue through the election. While this may draw a sigh of relief from many Republicans, even if the case won't be decided before the election, there is still a chance it might be argued before the election. As we have seen as this case has developed, and as will only be exacerbated at the Supreme Court level, each significant decision in action in the case casts a light on the overarching issues and debates surrounding the future of the ACA - meaning this case could still pose a political wildcard before the election or for the winners who could find themselves grappling with some very serious decisions depending on the Supreme Court's ruling.

Employers & The COVID-19 Coronavirus
From Sesco
A new virus first identified in Wuhan, China in late 2019 has been spreading across the globe and is now in the United States. The new coronavirus, COVID-19, is a pneumonia-like infection. SESCO recommends employers review the following answers to common questions we have received, and contact us if questions remain or if they wish to obtain a sample policy.
Question: Must we keep paying employees who are not working?

Answer: The answer is straightforward for nonexempt employees (i.e. employees subject to overtime pay). Nonexempt employees are paid for the actual time worked. Thus, if they do not report for work or the employer is closed, they are not paid. An employer may choose to allow these employees to use vacation or other paid time off to cover the lost wages.

The answer is a little more complicated for exempt employees (i.e. employees not subject to overtime pay). Exempt employees must be paid if they are ready, willing, and able to work; this is so even if the employer closes for the day. An employer that remains open may lawfully deduct one full-day's absence from the salary of an exempt employee who does not report for work for the day. The Department of Labor considers this an absence due to personal reasons; therefore, a deduction of a full-day's pay will not violate the salary basis rule or otherwise affect the employee's exempt status. An employer may, as an option, require an exempt employee who fails to report for work in this situation take vacation or other paid leave to cover the full-day's absence. Deductions from an exempt employee's salary for less than a full-day's absence are not permitted.

Question: What if an employee appears sick?

Answer: If any employee presents themselves at work with a fever or difficulty in breathing, this indicates that they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having COVID-19 is extremely low, it pays to err on the side of caution. Retrain your supervisors on the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

Question: Can we ask an employee to stay home or leave work if they exhibit symptoms of COVID-19?

Answer: Yes, employers are permitted to ask employees to seek medical attention and get tested for COVID-19. We recommend employers require employees to provide fitness for duty certified by a medical provider before being able to return to work.

Question: Can an employee refuse to come to work because of fear of infection?

Answer: Employees are only entitled to refuse to work if they believe they are in imminent danger. The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work.

Question: What current travel restrictions are in place?

Answer: In light of the COVID-19 outbreak in China, President Trump issued a Presidential Proclamation limiting the entry of foreign nationals who were physically present in China during the 14-day period before their attempted entry into the United States. And while the U.S. had already instituted a travel ban related to Iran for political reasons, the administration announced that the ban is being expanded to include any foreign national who has visited Iran within the last 14 days due to the outbreak that has taken place in that country.

Question: Can we prohibit an employee from traveling on their personal time?

Answer: No, you generally cannot prohibit otherwise legal activity, such as travel abroad by an employee. This includes pregnant employees or those with medical conditions. However, you should educate your employees before they engage in travel to risky environments, and you can - and should - monitor those employees returning from such travel for signs of illness.

Question: What should I do if an employee has recently traveled to an affected area or otherwise may have been exposed to COVID-19?

Answer: The Americans with Disabilities Act Amendments Act (ADAAA) places restrictions on the inquiries that an employer can make into an employee's medical status. The ADAAA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a "direct threat" depends on the severity of the illness. The EEOC instructs employers that the assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination. To date, the CDC has not classified COVID-19 as a pandemic.

Question: Does the Family and Medical Leave Act (FMLA) apply?

Answer: Employees requesting leave could conceivably be protected by the FMLA to the extent they otherwise meet FMLA-eligibility requirements. Generally, employees are not entitled to take FMLA leave to stay at home to avoid getting sick. Even in the absence of state or federal protection, an employer's internal policies may extend protection to such individuals. Of course, there is nothing to prevent you from voluntarily extending an employee's leave, even in the absence of any legal obligation.

Question: Does contraction of COVID-19 implicate the ADAAA?

Answer: Generally, no, because in most cases COVID-19 is a transitory condition. However, some employees could make an argument that the ADAAA is implicated if the virus substantially limited a major life activity, such as breathing. Moreover, if an employer "regards" an employee with COVID-19 as being disabled, that could trigger ADAAA coverage.

Question: May an employer encourage employees to telework as an infection-control strategy?

Answer: Yes. The EEOC has opined that telework is an effective infection-control strategy. The EEOC has also stated that employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

Question: Do we have any EEO concerns related to COVID-19?

Answer: Employers cannot select employees for disparate treatment based on national origin. The CDC recently warned: "Do not show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have COVID-19."

Employers will need to closely monitor any concerns that employees of Asian descent are being subjected to disparate treatment or harassed in the workplace because of national origin. This may include employees avoiding other employees because of their national origin.

An employer may not base a decision to bar an employee from the workplace on the employee's national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of COVID-19, you may have a legitimate reason to bar that employee from the workplace.