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Compliance Connection - July 2021 Part II

July 15, 2021

Federal Compliance Updates

Unemployment Fraud Takes Another Step

Unemployment fraud has plagued the entire country throughout the COVID-19 Pandemic. Each step seems to be a cat and mouse contest with state agencies and the criminals. Somehow, the hackers intercepted personal information such as email addresses and cell phone numbers. Therefore, the game has taken on a new level with scammers luring individuals to fake websites using text messages and emails.

With this new development, companies may again see an uptick in fraudulent claims overwhelming human resource departments, finance professionals, or anyone tasked with processing these claims. Many organizations turn to third party administrators to assist with the shear volume of processing claims and reconciling quarterly statements.

Here are some tips for this next game changing occurrence:

  • Instruct your staff and former employees on what to watch for.
  • Never click links in an unexpected text message or email claiming to be from a State Workforce Agency (SWA).
  • If you have applied for unemployment benefits, and receive a text or email about your application, contact your SWA directly using the contact information from an official website.
  • If you gave someone your sensitive information, visit the Identity Theft website to learn how to protect your credit from criminals. You should also report that someone has misused your personal information to claim unemployment insurance with your state agency.
  • If you get a suspicious text message or email message claiming to be from an SWA, please report it to the National Center for Disaster Fraud or by calling 866-720-5721.
  • Finally, you may also report it to the Federal Trade Commission.

Please share this information with people you know. By sharing the information, you can help defeat the scammers.

OSHA’s National Emphasis Program for COVID-19 Revised and Interim Enforcement Response Plan Updated


On July 8, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it revised its National Emphasis Program (NEP) for COVID-19. OSHA launched the NEP on March 12, 2021, to focus on companies with the largest number of workers at serious risk of contracting

COVID-19 and on employers that retaliate against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.

The revised NEP:

  • Adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing; and
  • Removes an appendix that provided a list of Secondary Target Industries for the former COVID-19 NEP.

For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the new directive, Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.

Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan (IERP) published July 7, 2021, it replaces the March 12, 2021 memorandum, and the updates include:

  • Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated;
  • Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic;
  • OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic;
  • Updated instructions and guidance for OSHA area offices and CSHOs for handling COVID-19-related complaints, referrals and severe illness reports;
  • Ensuring workers are protected from retaliation; and
  • References to the revised NEP for COVID-19.

The IERPs goals are to identify exposures to COVID-19 hazards, ensure appropriate control measures are implemented, and address violations of OSHA standards (other than the ETS) and the General Duty Clause. The updated IERP will remain in effect until further notice and is intended to be time-limited to the current COVID-19 public health crisis.

The ETS became effective June 21, 2021. Healthcare employers must comply with most provisions by July 6, 2021, and with training, ventilation, and barrier provisions by July 21, 2021.

President Biden Issues Executive Order to Promote Competition in the American Economy

On July 9, 2021, President Joe Biden issued an executive order to promote competition in the American economy. As stated by the fact sheet, the order’s objectives include reducing the trend of corporate consolidation, increasing competition and delivering concrete benefits to America’s consumers, workers, farmers and small businesses.


Reducing Barriers to Competition

The order directs over a dozen federal agencies, including the Federal Trade Commission (FTC) to look into unfair competition practices, including, among other things:

  • Restrictive covenant and non-compete agreements;
  • Prescription drug prices;
  • Internet billing and termination practices;
  • Airline refunds and cost comparison practices;
  • Facilitating the mobility of banking transaction data; and
  • Increasing opportunities for small businesses by directing all federal agencies to promote greater competition through their procurement and spending decisions.

Healthcare Considerations

The executive order addresses competition in health care in four main areas:

  • Prescription drugs
  • Hearing aids
  • Hospitals
  • Health insurance

Prescription Drugs

Right now, large drug manufacturers enjoy incredible profits year over year. The White House alleges that this is due to lack of competition and “pay for delay” tactics, where name-brand drug manufacturers pay generic manufacturers to stay out of the market. Such strategies result in Americans paying 2.5 times more for the same medications as peer countries.

The executive order directs the Food and Drug Administration to work with states and tribes to safely import prescription drugs from Canada, where drugs are less expensive. It also directs the Health and Human Services (HHS) Administration to increase support for generic and biosimilar drugs. Additionally, the order encourages the FTC to ban “pay for delay” and similar agreements.

Hearing Aids

Currently, the White House points out, only 14% of Americans with hearing loss use hearing aids. The administration says it’s due to high prices, costing more than $5,000 per pair (typically not covered by insurance). Additionally, hearing aids can only be obtained after a medical analysis by a doctor or specialist—an unnecessary requirement, according to the Biden administration.

The executive order directs the HHS to consider issuing proposed rules within 120 days for allowing hearing aids to be sold over the counter.

Hospitals

Hospitals have been consolidating through mergers for years, resulting in higher prices and fewer rural locations. The White House notes that consolidated hospitals charge far higher prices than hospitals in markets with more competition.

The executive order directs the FTC to review and revise its merger guidelines to ensure hospital mergers do not harm patients. Additionally, the order directs the HHS to support existing hospital price transparency rules and finish implementing bipartisan federal legislation to address surprise hospital billing.

Health Insurance

Consolidation is also an issue in the health insurance sector, according to the Biden administration. Fewer insurance companies mean fewer options for consumers. Even when there are more options, comparing plans continues to be a struggle for many individuals.

The executive order directs the HHS to standardize plan options in the National Health Insurance Marketplace so people can comparison shop more easily.

Next Steps

The order does not invalidate any of the practices and procedures mentioned above.

However, industry experts recommend that employers take time now to review, at the very minimum, their use of restrictive covenant agreements and evaluate how this order may impact their practices such as their health insurance plans.

State Compliance

Colorado Privacy Act

On July 7, 2021, Colorado Governor Jared Polis signed the Colorado Privacy Act (SB 190) into law. The act creates personal data rights for Colorado consumers (its collection and use) along with the right to opt out of their personal data being processed for sale, profiling, or targeted advertising. The act was designed to stop the unauthorized disclosure of personal information and loss of privacy that cause financial fraud, identity theft, unnecessary costs in personal time and finances, destruction of property, harassment, reputational damage, emotional distress, and physical harm.

Under the act, controllers—the entities that determine why and how personal data is processed—must give consumers a clear and conspicuous way to opt out of their personal data being processed.

Consumers are also entitled to access, correct, or delete their data and get a copy of it. The act also imposes the following duties on controllers:

  • Duty of transparency: clearly let consumers know what is happening with their data.
  • Duty of purpose specification: provide express reasons why a consumer’s personal data is being collected or processed.
  • Duty of data minimization: limit the collection of data to what is relevant and reasonably necessary.
  • Duty to avoid secondary use: don’t process data that isn’t necessary to or compatible with the

purpose of its processing, unless first getting the consumer’s permission.

  • Duty of care: secure personal data during storage and use from anyone unauthorized to have it.
  • Duty to avoid unlawful discrimination: don’t process data in violation of state or federal law that prohibits unlawful discrimination against consumers.
  • Duty regarding sensitive data: don’t process a consumers’ sensitive data without their consent.

The act is effective July 1, 2023.

Revised INFO #9: Equal Pay for Equal Work Act


On July 21, 2021, the Colorado Department of Labor and Employment (CDLE) issued revised INFO #9:Equal Pay for Equal Work Act, Part 2: Transparency in Pay and Opportunities for Promotion and Advancement. It contains several critical changes concerning the CDLE’s interpretation of the Equal Pay for Equal Work Act and the required disclosure of compensation in job postings.

Compliance Calendar

July

7/30 – Summary of Material Modification Deadline (for changes to calendar year plans made in 2020) 7/31 – Form 5500 Filing Deadline (calendar year plans)

August

8/2 – PCORI Fee Deadline

8/23 – 2019 and 2020 EEO-1 Component 1 Data Collection Deadline

September

9/30 – VETS-4212 Filing Deadline (federal contractors)

Disclaimer:

Lighthouse HR Support (LHRS) provides practical human resource information and guidance based upon our knowledge and experience in the industry and with our clients. LHRS services are not intended to be a substitute for legal advice. LHRS services are designed to provide general information to human resources and/or business professionals regarding human resource concerns commonly encountered. Given the changing nature of federal, state and local legislation and the changing nature of court decisions, LHRS cannot and will not guarantee that the information is completely current or accurate. LHRS services do not include or constitute legal, business, international, regulatory, insurance, tax or financial advice. Use of our services, whether by phone, email or in person shall indicate your acceptance of this knowledge.

Written By:

Kelly Murphy

Kelly Murphy

HR Business Partner

Kelly brings a wealth of knowledge with nearly 30 years of human resource experience. She provides expertise in various human resource categories, including employee relations, performance management, HR Form creation/review (employee handbooks, job descriptions, etc.), employee/management training, workplace investigations, etc. Her human resource certifications include PHR (Professional Human Resources) and SHRM-PC (Society for Human Resource Management Certified Professional). 

Kelly attended Colorado Mesa University and Waldorf University, where she earned a degree in Human Resource Management and Business Administration with Summa Cum Laude honors. She was named Western Colorado Human Resource Association Professional of the Year, 2013, and currently serves on the Board of Directors. She also is a member of the WCHRA Skills Development Committee, the WCCA Education Committee, and the Members/Events Committee. She serves as an Ambassador for both the Fruita and Palisade Chamber of Commerce.