Colorado and Oregon Trigger Protections for Leaves Relating to Non-COVID Respiratory Illnesses
Littler Publications
At the outset of the COVID-19 pandemic, a number of jurisdictions enacted sick leave laws specifically designed for absences due to COVID-19. Some states, however, enacted permanent changes to their leave laws that apply during a “public health emergency,” which can apply both to COVID-19 as well as other public health emergencies. With reports of higher-than-average respiratory syncytial virus (RSV) and flu transmission, some of these public health emergency provisions are being triggered, including in both Colorado and Oregon. In such jurisdictions, employees have additional rights, potentially including paid sick leave and job protection for covered absences.
Colorado Expands Public Health Emergency Leave to Include Absences Relating to RSV, Flu, and Other Respiratory Illnesses
Under Colorado’s Healthy Families and Workplaces Act (HFWA), employers are required to provide employees access to up to 80 hours of paid sick leave when a public health emergency (PHE)1 has been declared. Employees can access this PHE leave (PHEL) if they are:
- self-isolating or excluded from the workplace due to exposure, symptoms, or diagnosis of the communicable illness in the PHE;
- seeking a diagnosis, treatment, or care (including preventive care, such as vaccination) of such an illness;
- unable to work due to a health condition that may increase susceptibility to or risk of such an illness; or
- caring for a child or other family member who is in category (1)-(3), or whose school or childcare is unavailable due to the PHE.
Colorado’s governor first declared COVID-19 a public health emergency on March 11, 2020, and this emergency declaration—which has since been amended dozens of times—remains in effect. That means that since January 1, 2021 (when the public health emergency leave portion of the HFWA took effect), Colorado employees have had access to PHEL in connection with COVID-19.
The most recent amendment to the governor’s emergency declaration issued on November 11, 2022 expands this public health emergency to cover not only COVID-19, but also RSV, influenza, and “other respiratory illnesses” in Colorado—an undefined term that could, in theory, encompass anything from whooping cough to the common cold.
This means that all Colorado employers must provide up to 80 hours of paid PHEL for absences relating to all of these illnesses. Notably, the state labor department confirmed in a statement on its website that this amendment does not create a fresh bucket of 80 hours of PHEL: “The expansion beyond COVID doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.”
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Healthcare Workers Recruitment and Re-engagement Fund
A Request for Applications (RFA) is used to award grants to promote specific program goals. An organization (in this case, the Colorado Department of Public Health and Environment) announces that grant funding is available, and eligible organizations may apply for it. The purpose of this CDPHE RFA is to incentivize and assist employers in the recruitment of different licensed healthcare professionals to employment in long-term care facilities (LTCF), facilities with a Healthcare Professional Shortage Area Designation, and pediatric-serving hospitals. If a facility successfully recruits a licensed professional who has left the healthcare industry and will work 20 hours per week or more on average for a minimum of six months, the facility is eligible to receive a one-time payment of $20,000 per professional re-engaged.
Eligibility
Organizations that may apply for funding must meet the following criteria:
Operate as a long-term care facility, meaning it is a nursing home, nursing facility, skilled nursing facility, intermediate care facility, or a health facility that is planned, organized, operated, and maintained to provide supportive, restorative, and preventative services to persons who, due to physical and/or mental disability, require continuous or regular inpatient care.
Hold an official federal designation as a Health Professional Shortage Area (HPSAs) may also apply.
Hospitals that serve the pediatric population.
In order to receive grant funding, a facility that is eligible based on the above criteria must hire a healthcare professional who is not currently working, but has an active license or reinstates their license and will work for the facility an average of 20 hours per week. The healthcare professional must attest that they will work for the facility a minimum of six months and that they have previously left the healthcare industry for a minimum of six months.
The Healthcare Workforce Recruitment and Re-engagement Fund incentivizes creative retention ideas. These may include signing bonuses, child care and transportation stipends, tuition reimbursements, and employee health and wellness programs. A full list of suggestions can be found in our Allowables Roadmap.
This program has $10,000,000 available for this RFA, and CDPHE anticipates awarding grants until the funds are exhausted. No facility will be eligible to receive more than $240,000 in total. Each contract will be effective upon approval by the State Controller through June 30, 2025. All aspects of the project are dependent upon funding availability.
Learn more at https://cdphe.colorado.gov/healthcare-workers-recruitment-reengagement-fund |
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Tracking the Public Health Emergency - When Will it Ever End?
The Biden-Harris administration has indicated that it will not issue a 60-day notice to end the COVID-19 public health emergency (PHE) on January 11, 2023, meaning that we can now expect the PHE to be extended for another 90 days through April 11, 2023.
Energy and Commerce Republican Leader Cathy McMorris Rodgers (R-WA) and Health Subcommittee Republican Leader Brett Guthrie (R-KY) have repeatedly called on the Biden Administration to provide a detailed plan to unwind the COVID-19 emergency. Additionally, The National Association of Medicaid Directors (NAMD) sent a letter to Senate Majority Leader Chuck Schumer (D-NY), Senate Minority Leader Mitch McConnell (R-KY), Speaker Nancy Pelosi (D-CA), and House Minority Leader Kevin McCarthy (R-CA) urging Congress to provide states with certainty around the end of the Medicaid continuous enrollment requirement. Specifically, NAMD asked lawmakers to:
Provide certainty on when Medicaid coverage redeterminations will begin, with at least 120 days’ advance notice.
Provide certainty that existing federal guidance on the redetermination period will not change.
Provide certainty on available financial resources during the redetermination period, specifically by maintaining the current 6.2 percentage point FMAP enhancement through the first quarter of redeterminations and phasing the enhancement down over 12 months after this quarter.
Provide certainty that underlying Medicaid eligibility will not change during the redetermination period.
The Senate passed a resolution to end the national emergency declaration, which has been renewed annually since former President Trump issued the declaration pursuant to the National Emergencies Act and is different than the COVID-19 PHE. The resolution was advanced by a bipartisan vote of 62-36. In response, the White House Office of Management and Budget (OMB) issued a statement affirming that President Biden would veto efforts to end the national emergency. The current national emergency declaration is set to expire on March 1, 2023. Until it’s conclusion, the declaration allows the President to waive various federal regulatory requirements and activate a variety of statutory emergency authorities. ‘ |
Insurance Companies Pocketing Millions in Overpayments Through Their Medicare Advantage Subsidiaries, Audits Find
McKnight’s Senior Living | By Kathleen Steele Gaivin
The Centers for Medicare & Medicaid Services released the results of 90 audits of Medicare Advantage plans. The federal audits discovered $12 million in net overpayments for the care of 18,090 patients sampled, Kaiser Health News reported Monday.
CMS released the audits to settle a Freedom of Information lawsuit KHN filed against the agency just over three years ago. The audits looked at billings from 2011 through 2013, which are the most recent reviews completed, according to KHN.
Currently 46% of Medicare-eligible older adults are enrolled in MA plans. That number is expected to exceed 50% within the next few years.
“It’s incredibly frustrating that it took a lawsuit and years of pushing to make this vital information public,” Thomas Burke, a San Francisco attorney who represented KHN pro bono, said in an article published on KHN’s website last month.
Medicare Advantage plans primarily are run by major insurance companies. As the plans have grown in popularity as an alternative to traditional Medicare coverage, they have fallen under increased scrutiny, as previously reported by McKnight’s. Last spring, the Office of Inspector General accused MA organizations of denying or delaying services that met Medicare coverage and MA billing rules. In August, CMS published a request for information, asking the public to provide input regarding various aspects of MA plans. Several home care organizations, including the National Association for Home Care and Hospice and the Partnership for Quality Home Healthcare, urged CMS to ensure that MA plans provide the same level of care as fee-for-service plans and release patients from hospitals to home healthcare in a timely fashion.
According to KHN, federal regulators have said they intend to extrapolate the payment error rates from those samples across the total membership of each plan — and recoup an estimated $650 million as a result. The audits go back more than a decade, yet there has been no attempt to recover the losses. CMS was set to unveil a final extrapolation rule Nov. 1, but that didn’t happen. The agency has now pushed that action off until February.
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