March 02, 2021
On February 15, 2021, the Virginia Department of Labor and Industry issued final regulations related to COVID-19 workplace safety standards. The rules were effective January 27, 2021, and apply to all employers subject to the authority of the Virginia Occupational Safety and Health Program (VOSH, which is the state version of OSHA). The purpose of the standards is to help control, prevent and mitigate the spread of COVID-19.
Employers must adopt and maintain the following standards until VOSH declares the end of the pandemic.
- Employers must inform employees on how to self-monitor for signs and symptoms of COVID-19 and encourage employees to do so.
- Employers may require COVID-19 testing as a condition to return to work. Employees cannot be required to pay for the cost of testing, though the group health plan may provide benefits. An employer may not require an antibody test as a condition to return work as the agency believes that is has not been determined that an individual with a positive test result is immune from infection.
- Employers shall establish and implement policies and procedures that ensure employees observe physical distancing while on the job and during paid breaks on the employer's property, including the use of verbal announcements and signage promoting physical distancing. Limit access for non-employees. Close or control access to common areas, breakrooms and lunchrooms.
- Make handwashing facilities and hand sanitizer available to employees.
- Require face coverings when six feet of distance between individuals is not possible, including incidental events such as passing in a hallway. An exception must be made for any employee for whom doing so would be contrary to the employee's health or safety because of a medical condition.
- All common spaces, including bathrooms (including port-a-potties), frequently touched surfaces and doors, shall at a minimum be cleaned and disinfected at least once during or at the end of the shift. Where multiple shifts are employed, such spaces shall be cleaned and disinfected no less than once every 12 hours.
- All shared tools, equipment, workspaces and vehicles shall be cleaned and disinfected prior to transfer from one employee to another.
- Employers shall develop and implement policies and procedures for employees known or suspected to be infected to return to work. Symptomatic employees are excluded from returning to work until all three of the following conditions have been met:
- The employee is fever-free (below 100.0° F) for at least 24 hours, without the use of fever-reducing medications
- Respiratory symptoms, such as cough and shortness of breath have improved
- At least 10 days have passed since symptoms first appeared
- Asymptomatic employees who are known to be infected with COVID-19 must not return to the worksite until 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.
- Employers shall develop and implement policies and procedures for employees to report when they are experiencing signs or symptoms consistent with COVID-19, and no alternative diagnosis has been made.
- If an employee or other person is known or suspected to be infected with COVID-19, the employer cannot permit that individual to remain at the worksite or customer location.
- Employers must discuss with subcontractors and companies that provide contract or temporary employees the requirement to exclude from work employees or other persons (e.g., volunteers) who are known or suspected to be infected with COVID-19, and the importance of this requirement.
- To the extent permitted by law, including HIPAA, employers shall establish a system to receive reports of positive tests by employees, subcontractors, contract employees and temporary employees who were present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test). Following such a report, the employer must notify its employees who may have been exposed, as well as employees of another employer who were present at the worksite during the same period. The notification must be made within 24 hours of knowledge. The identity of the infected person must be kept confidential.
- Following a report of a positive test by an employer who had been at the worksite, the employer must also notify the building or facility owner. The owner must take the necessary steps to sanitize the common areas of the building and notify other tenants.
- When an employer has received two or more confirmed COVID-19 cases (of its own employees) within a 14 days, the employer must notify the Virginia Department of Health. For this purpose only, the employer must report the individual's name, date of birth and contact information. Such notification must be made within 24 hours of knowledge.
Additional requirements apply based on the risk level of exposure to COVID-19 in the workplace. For example, healthcare delivery is considered high risk level. Such an institution would have additional requirements related to ventilation and filtration systems.
While this issue is generally outside the scope of Benefits Compliance, we recognize the value of this information for our clients and encourage employers to work with outside counsel in developing policies and procedures in compliance with the state standards.
No Prior Authorization for Newborn Hospital Transfer
May 27, 2020
On April 9, 2020, Gov. Northam signed SB 718 into law. The new law prohibits group health insurance policies issued on or after January 1, 2021 from requiring prior authorization for the interhospital transfer of a newborn experiencing a life-threatening emergency condition or the hospitalized mother to accompany the newborn.
SB 718 »
12-Week Short-Term Disability Benefits for Childbirth
May 27, 2020
On April 9, 2020, Gov. Northam signed SB 567 into law. The new law requires group short-term disability policies to pay benefits for at least 12 weeks for a disability related to childbirth. The requirement is effective for policies issued or renewed on or after July 1, 2021.
SB 567 »
Discriminatory Coverage Related to Transplants Prohibited
May 12, 2020
Effective for policies issued on or after January 1, 2021, HB 1273 prohibits a group health plan from denying or limiting overage related to organ, eye or tissue transplant services solely because of the insured’s physical, intellectual, developmental or other disability. Services include referral to a transplant center or specialist; inclusion on an organ, eye or tissue transplantation waiting list; evaluation, surgery and related health care services; counseling; and post-transplantation treatment and services. The law only applies to policies that include coverage for services related to such transplants.
HB 1273 »
Coverage for Hearing Aids
May 12, 2020
On April 10, 2020, Gov. Northam signed SB 423 into law. The new law requires group health insurance policies to provide coverage for hearing aids and related services for children 18 years of age or younger when recommended by an otolaryngologist. The coverage must include one hearing aid per hearing-impaired ear, up to a cost of $1,500, every 24 months. The mandate applies to policies issued or renewed on and after January 1, 2021.
SB 423 »
Coverage for Applied Behavioral Analysis
April 28, 2020
On April 22, 2020, Commissioner White issued Administrative Letter 2020-03 related to required coverage of autism spectrum disorder (ASD). The letter clarifies qualified health plans in the small group market are not required to provide coverage for applied behavioral analysis (ABA) as such coverage exceeds the state benchmark plan’s essential health benefits. However, if the plan defines ASD as a mental health condition rather than a medical/surgical condition, then the exclusion of such may need to be reviewed in light of mental health parity requirements.
For policies issued on or after January 1, 2021, large group policies are required to provide coverage for ABA to treat ASD. If the plan defines ASD as a medical/surgical condition, there can be no limit on the number of ABA visits, but may cap annual benefits to $35,000. If the plan defines ASD as a mental health condition, the plan cannot impose a limit on the number of ABA visits and can only apply the $35,000 annual cap if compliant with mental health parity requirements.
Employer plan sponsors should discuss the requirements with their insurer to understand the coverages offered under the plan in 2021.
Administrative Letter 2020-03 »
Worker Misclassification Initiative
October 15, 2019
On August 8, 2019, Gov. Northam issued Executive Order No. 38. The order reauthorizes the inter-agency taskforce on worker misclassification and payroll fraud. The governor’s office believes that the misclassification of actual employees as independent contractors deprives the state of Virginia of millions of dollars in tax revenues and prevents workers from receiving protections and benefits to which they are otherwise entitled.
The order authorizes the existing taskforce to continue reporting current enforcement practices against employers and recommending procedures for more effective enforcement. Virginia employers should review their employment practices to make sure that workers are properly classified as employees or independent contractors. Employees that are improperly classified as independent contractors could put the employer at risk for penalties under the employer mandate, as well as past liability for group health plan claims, employment taxes, and workers compensation benefits.
Executive Order No. 38 »
Wage Payment Statements
August 06, 2019
Effective January 1, 2020, HB 2664 requires all sized employers operating a business in Virginia to provide a detailed pay statement to each employee on each regular pay date. The statement may be provided in the form of a paystub or online accounting. The statement must show the name and address of the employer, the number of hours worked during the pay period, the rate of pay, the gross wages earned by the employee during any the pay period, and the amount and purpose of any deductions therefrom. There is an exception for agricultural employers who must only provide statements upon request of its employees detailing gross wages earned by the employee during any pay period and the amount and purpose of any deductions.
This law is not directly related to employee benefits. However, the law likely requires the wage statements to include information on health and retirement benefits since those are generally deductions from employees’ wages. Employers should ensure that they provide an adequate statement to employees pursuant to this rule.
HB 2664 »
Coverage for Partial Supply Prescription Drugs
December 11, 2018
Effective for group health insurance policies issued or renewed on or after Jan. 1, 2019, HB 234 requires policies that cover prescription drugs to provide coverage for a partial supply of a prescription drug if the prescribing provider or pharmacist determines the fill or refill to be in the best interest of the participant or for the purpose of medical synchronization. Medical synchronization means the coordination of prescription refills for a patient who is taking two or more maintenance drugs; this is believed to improve medication adherence. The policy is prohibited from denying a prescription refill on the basis that it is being filled too soon if the purpose is medical synchronization. Lastly, the cost-sharing for the partial supply must be prorated accordingly.
HB 234 »
Prescription Drug Pricing Limits
December 11, 2018
Newly enacted HB 1177 applies to contracts between pharmacies and pharmacy benefit managers or carriers entered into or renewed on or after Jan. 1, 2019. Under the new contracts, an insured cannot be required to pay a charge that exceeds the retail price of the prescription drug. In other words, the insured will pay the plan’s coinsurance amount or the retail price, whichever is lower. Additionally, the pharmacist must be permitted to discuss with the insured information about a more affordable, therapeutically equivalent prescription drug, if available, and sell that drug to the insured.
HB 177 »