On January 31, 2020, the secretary of the Department of Health and Human Services (HHS) declared a public health emergency (PHE) in the United States. The President declared a national emergency (NE) on March 13, 2020. Both emergencies resulted from the 2019 novel coronavirus (COVID-19) pandemic.
An NE can only be ended by the President or by an act of Congress. The House of Representatives issued H.J. Res. 7 on January 9, 2023, calling for the end of the NE. On January 30, 2023, the President stated his plan to end the NE would be May 11, 2023, and expected the secretary of HHS to end the PHE on the same date.
On March 30, 2023, H.J. Res. 7 was agreed to in the Senate. With both parties of Congress in agreement, the resolution is sent to the President for signature. Although the President opposed H.J. Res. 7, he signed the joint resolution on April 10, 2023, establishing the NE’s end date. HHS has provided notice of the intention to end the PHE on May 11, 2023, with a publication in the federal register. The 60-day transition period for the NE begins April 11, 2023.
On March 29, 2023, the U.S. Departments of Labor, Health and Human Services (HHS), and the Treasury jointly released FAQs about the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Health Insurance Portability and Accountability Act in light of the PHE ending. Specifically, the FAQs address:
- COVID-19 diagnostic testing (FAQs 1-3);
- Rapid coverage of preventative services and vaccines for COVID-19 (FAQ 4);
- Extension of certain timeframes for employee benefit plans subject to Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code, participants, and beneficiaries affected by the COVID-19 outbreak (FAQ 5, with examples);
- Special enrollment in group health plan and group or individual health insurance coverage after loss of eligibility for Medicaid or Children’s Health Insurance Program (CHIP) coverage or after becoming eligible for premium assistance under either (FAQs 6 & 7); and
- Benefits for COVID-19 testing and treatment and Health Savings Accounts (HSAs)/High Deductible Health Plans (HDHPs) (FAQ 8).
The end of the NE provides a 60-day transition period (i.e., end date plus 60 days) to resume timelines for COBRA continuation, HIPAA special enrollment requests, claims processing, and appeals.
On May 5, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) released an announcement stating employers have 30 days to comply with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. This means that employers using temporary flexibilities—first announced in March 2020 and extended through the pandemic—must ensure that all required physical inspections of identity and employment eligibility documents are completed by August 30, 2023.
History of Form I-9 Flexibilities
In its March 2020 announcement, ICE deferred the requirement that employers review employees’ identity and employment authorization documents in their physical presence, instead allowing it to be done remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. In follow-on guidance, ICE noted that employers could continue to implement the flexibilities until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
In October 2022, DHS and ICE extended the flexibilities through July 31, 2023. The most recent clarification notifies employers that they have until August 30, 2023, to perform all required physical examinations of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.
- Make certain that beginning August 1, 2023, and beyond, your organization is no longer utilizing COVID flexibilities for I-9 compliance.
- Ensure that all required physical examinations of identity and employment eligibility documents are completed for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.
While federal employment law changes are generally few and far between, the budget bill that was just passed by Congress and signed by the President includes two sections that provide new protections for pregnant and lactating employees and applicants.
Pregnant Workers Fairness Act
Effective June 17, 2023, employers with 15 or more employees must now accommodate employees’ and applicants’ known limitations related to pregnancy, childbirth, or related medical conditions unless it would create an undue hardship. Employers also cannot take any adverse action against an employee or applicant for requesting or using an accommodation.
Previously under federal law, employers generally only had to provide reasonable accommodations for pregnant employees and applicants if they also provided accommodations to other employees who were similar in their ability or inability to work. Note that many state laws already went above and beyond federal law in requiring accommodations for pregnant employees.
Lactation Accommodations (PUMP Act)
Effective December 29, 2022, the “Providing Urgent Maternal Protections for Nursing Mothers Act,” or PUMP Act, expands the current federal requirements for providing employees with time and space to breastfeed or pump at work to now cover exempt employees. Previously, only nonexempt employees were covered.
This law applies to employers of all sizes but (still) has an exception for employers with fewer than 50 employees if they can show that providing accommodations would cause an undue hardship.
- If you have 15 or more employees, ensure that your policies have been updated accordingly to include the Pregnant Workers Fairness Act.
- Employers of all sizes should ensure that your policies have been updated accordingly to include the lactation accommodations.
In April 2023, the U.S. Department of Labor released an updated Employee Rights Under the Fair Labor Standards Act poster with information about the federal minimum wage, overtime pay, child labor, tip credit, the PUMP Act, and more. The poster has a new revision date (REV 4/23) and replaces prior versions.
Under the FLSA and PUMP Act, employers must provide reasonable break time for nursing employees to express breast milk for their nursing children:
- For one year after childbirth; and
- Each time they need to express breast milk.
Employers must provide a place to express breast milk that isn’t a bathroom, is shielded from view, and free from coworker or public intrusion.
Employers must also display the FLSA poster where employees can easily see it. Contact your Client Account Manager with any questions.
The Consumer Financial Protection Bureau (CFPB) issued a final rule which, among other things, updates their Summary of Your Rights Under the Fair Credit Reporting Act (FCRA) and replaces the 2018 version. The summary details the major rights guaranteed under the act. For instance, employers that use a credit report to deny employment must provide the applicant with the name, address, and phone number of the agency that provided the credit report information. The final rule also makes non-substantive changes to the act to include removing outdated business references.
The final rule is effective April 19, 2023, but the mandatory compliance date is March 20, 2024.
Ensure your organization is utilizing the updated Summary of Your Rights Under the Fair Credit Reporting Act (FCRA) and destroy all previous versions.