Home Health & Hospice Week

Hospices received good news about controlled substance prescriptions via telemedicine on the eve of the public health emergency’s end, but news for other PHE-related areas was not as good — or was left murky altogether.

For example: “COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, will end on July 31, 2023,” the Department of Homeland Security says on its U.S. Citizenship and Immigration Services website. “Employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023,” DHS directs.

Under COVID, initial I-9 inspections “were allowed to occur remotely (e.g., over video link, fax or email), with the expectation that physical inspection would occur within three business days after normal operations resumed,” recap attorneys Jacquelyn E. Stone, John L. Bishop, and Noriya Shahadat with law firm McGuireWoods. “Since March 2020, ICE has allowed employers to continue to rely on the flexibilities,” they relate.

Last October, DHS and ICE announced that the flexibilities would be extended until July 31, 2023, Stone, Bishop, and Shahadat note in an alert. “The May 4 announcement clarifies for employers that they will have 30 days from July 31, 2023, to reach compliance with Form I-9’s physical inspection requirement,” they highlight.

Tip: For as long as you still use the remote option, “according to the DHS, once the documents have been physically inspected, the employer should add ‘COVID-19’ and ‘documents physically examined’ with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate,” advise attorneys Eric S. Bord, Shannon A. Donnelly, and Eleanor Pelta with law firm Morgan Lewis.

“Planning for and ensuring compliance with the Aug. 30, 2023, deadline will help maintain a compliant workforce and avoid penalties,” the McGuireWoods lawyers advise. Employers should also keep an eye out for a final rule on this issue expected later this year.

Other areas related to employment law will also see repercussions from the PHE’s end, note attorneys Christopher Eades, Todd Nova, and Mayo Alao with law firm Hall Render.

For example: During the COVID-19 National Emergency (NE), the U.S. Department of Labor, the Department of Health and Human Services, and the Department of Treasury issued guidance “to provide relief for employee benefit plans, plan participants and beneficiaries,” Eades, Nova, and Alao recount. “With the end of the NE, the relief granted will revert to original requirements starting 60 days after the end of NE,” they point out.

Specifically, employers will no longer be required to allow an extended time for plan sponsors to provide plan documentation and other notices to participants or to file a benefit claim and an appeal. And the extension of COBRA-related deadlines will no longer be mandatory, the Hall Render attorneys note.

“Employers should be aware of the changes coming and evaluate whether any changes to their plans are warranted to align plan administration and compliance with the pre-NE regime,” Eades, Nova, and Alao recommend. “The DOL is encouraging employers to continue allowing extended enrollment timeframes to help employees obtain health coverage, indicating that federal law does not prevent a group health plan from extending the special enrollment period further than the statutorily required 60 days,” they add.

Another example: “Several pieces of federal legislation enacted during the pandemic imposed requirements on health insurance insurers and employer-sponsored group health plans,” Eades, Nova, and Alao review. That included covering COVID tests and vaccinations at no cost to beneficiaries.

“With the expiration of the PHE, these requirements will also end,” the Hall Render lawyers stress. “Employers will need to evaluate whether corresponding amendments need to be made to their group health plan(s),” they counsel.

Plus: “The expiration of the PHE also will bring changes to certain state-specific employment laws,” Eades, Nova, and Alao add. For example, in Colorado the obligation to provide 80 hours of supplemental paid sick leave will end on June 8, they offer.

Make sure to check whether and how your state’s labor law requirements may change after the PHE’s end.

Note: The I-9 announcement is at www.uscis.gov/i- 9-central/form-i-9-related-news/temporary-policies-related-to-covid-19.