Revision: Sept. 8, 2020, 2:51 p.m.
HB 1166 - VERSION ADOPTED BY BOTH BODIES
06/16/2020 1471s
30Jun2020... 1629EBA
2020 SESSION
20-2209
01/06
HOUSE BILL 1166
SPONSORS: Rep. Knirk, Carr. 3; Rep. Muscatel, Graf. 12; Rep. Indruk, Hills. 34; Rep. M. Pearson, Rock. 34; Rep. Weston, Graf. 8; Rep. Butler, Carr. 7; Rep. Woods, Merr. 23; Rep. Fargo, Straf. 14; Sen. Rosenwald, Dist 13; Sen. Sherman, Dist 24; Sen. Hennessey, Dist 5
COMMITTEE: Commerce and Consumer Affairs
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AMENDED ANALYSIS
This bill:
I. Makes various changes in unemployment compensation for purposes of the Coronavirus (COVID-19).
II. Extends the provisions of the federal Family and Medical Leave Act for certain COVID-19 protections.
III. Requires employers to provide certain sanitation conditions relating to COVID-19.
IV. Waives cost-sharing for testing for COVID-19 under accident and health insurance policies.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06/16/2020 1471s
30Jun2020... 1629EBA 20-2209
01/06
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subparagraph; Unemployment Compensation; Self-Employment Assistance Program. Amend RSA 282-A:31-h, V by inserting after subparagraph (e) the following new subparagraph:
(f) The requirements of this chapter not met due to a participant's quarantine for coronavirus or COVID-19, or for COVID-19 related reasons, as directed by a medical provider shall not be applicable to the participant.
2 New Subparagraph; Unemployment Compensation; Benefit Eligibility Conditions. Amend RSA 282-A:31, I by inserting after subparagraph (i) the following new subparagraph:
(j) Subparagraphs (a) through (g) shall not apply to an individual in quarantine for coronavirus, or COVID-19, as directed by a medical provider or government direction, or for COVID-19 related reasons, and subparagraphs (h) and (i) shall be suspended until July 1, 2021.
3 New Paragraph; Unemployment Compensation; Disqualification for Benefits. Amend RSA 282-A:32 by inserting after paragraph IV the following new paragraph:
V. Individuals impacted by COVID-19 shall not be disqualified for benefits pursuant to provisions in paragraphs I and II and such unemployment insurance benefits coverage shall include, at a minimum, situations where:
(a) An employer or employing unit temporarily shuts down due to coronavirus, or COVID-19, with the expectation that the individual will return when business resumes;
(b) An individual is quarantined by a medical professional or under government direction, and the employer has instructed the individual to return to work after the quarantine is over or has not provided clear instruction to do so; and
(c) An individual is quarantined by a medical professional or under government direction, or leaves employment due to a reasonable risk of exposure or infection, including self-quarantine, or to care for a family member, and either does not intend to return to the employer or the employer will not allow the individual to return.
4 Unemployment Compensation; Unavailable for Work. Amend RSA 282-A:39 to read as follow:
282-A:39 Unavailable for Work. An individual shall be disqualified for benefits for any week or weeks during any part of which he is not available for work outside a home, irrespective of his reason for refusing to be available for work outside a home, unless the individual is in quarantine for coronavirus (COVID-19), or for COVID-19 related reasons, as directed by a medical provider.
5 New Section; Protective Legislation. Amend RSA 275 by inserting after section 52-a the following new section:
275:52-b Protections for Coronavirus (COVID-19). The provisions of the federal Family and Medical Leave Act of 1993, 29 U.S.C. section 28, shall be extended to all employees of employers with at least 15 or more employees for any employee in quarantine, or covered family member in quarantine, for coronavirus or COVID-19, or for a COVID-19 related reason, as directed by a medical provider or under government direction. This section shall not apply to individual instances in which the commissioner determines there to be an economic hardship.
6 Unemployment Compensation; Overpayment. Amend RSA 282-A:165, I to read as follows:
I. Any person who has received any benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled or while the person was disqualified from receiving benefits shall be liable to repay to the commissioner such benefits all of which shall be considered to be overpayments, with the exception of persons receiving benefits under executive orders related to COVID-19 expanded eligibility.
7 Unemployment Compensation; Annual Earnings. Amend RSA 282-A:16 to read as follows:
282-A:16 Annual Earnings. "Annual earnings" shall be the wages, to the nearest dollar, earned during each base period from an employer by an individual in employment in New Hampshire and an amount equivalent to the average weekly wage, as determined under the New Hampshire workers' compensation statute, for each week that an individual has been found by either the labor commissioner or a court to be entitled to receive workers' compensation based on a claim involving such employer; no portion of any lump sum payment pursuant to RSA 281-A:37 shall constitute annual earnings. For any week which commences during the period between 2 successive sports seasons (or similar periods), no annual earnings shall be available for purposes of RSA 282-A:25 to any individual which are based on any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods). For any week in which an individual was on an unpaid leave, pursuant to the federal Family and Medical Leave Act of 1993, 29 U.S.C. section 28, or on a paid leave, for reasons similar to the federal Family and Medical Leave Act of 1993, 29 U.S.C. section 28, then the individual’s annual earnings for those weeks on such leave shall be deemed the earnings the individual received prior to the leave.
8 Department of Employment Security; Computer System; Transfer of Moneys. The treasurer and the governor shall transfer $50,000,000 from CARES Act moneys to the department of employment security, with the commissioner first applying any moneys needed to upgrade the benefits application computer system, and any other computer system, to reflect, to code, and to account for any and all expanded COVID-19 eligibility factors, including self-employment. Following such upgrades and coding the commissioner shall certify to the chairs of the house commerce and consumer affairs committee and senate commerce committee and the chairs of house and senate finance committees that such upgrades and coding were completed in a manner that manual overrides are not needed for any expanded COVID-19 eligibility factors, that no delays in processing benefits for expanded COVID-19 eligibility factors exist as compared with eligibility factors existing prior to COVID-19, and report any amounts necessary to complete the upgrades and coding, including when the upgrades and coding for each eligibility factor was completed. The balance of any moneys transferred after first applying any moneys needed for upgrading and coding shall be deposited in the unemployment insurance trust fund. In the event the United States Department of Labor provides a written notice to the New Hampshire department of employment security that any specific statutory change in this act will result in the loss of federal funding to New Hampshire then that specific statutory change, and that specific statutory change only, shall be inoperative.
9 Sanitation, Provision for. Amend RSA 277:10 to read as follows:
277:10 Sanitation, Provision for. Every employer shall provide and maintain reasonable and proper toilet facilities and reasonably sanitary and hygienic conditions for employees, including any and all reasonable sanitary and hygienic conditions related to COVID-19.
10 New Section; Safety and Health of Employees; Worker Safety in COVID-19. Amend RSA 277 by inserting after section 10 the following new section:
277:10-a Worker Safety in COVID-19. Every employer shall provide, arrange access to, or provide paid time off for COVID-19 testing, upon the request of an employee. Every employer shall provide personnel protective equipment for employees in any workplace where there are 10 or more employees or customers on a regular basis, or in any health care workplace. Every employer shall comply with all applicable state and federal standards and guidances related to COVID-19. The commissioner shall accept phone calls for COVID-19 related workplace safety concerns.
11 New Paragraph; Safety and Health of Employees; Rulemaking. Amend RSA 277:16 by inserting after paragraph II the following new paragraph:
III. On or by August 1, 2020, the commissioner, in consultation with the commissioner of health and human services, shall adopt worker safety rules, pursuant to RSA 541-A, to protect workers from COVID-19 and to protect the public interest, including consistent with RSA 277:16-b, RSA 277:10-a, and RSA 277:10.
12 New Section; Safety and Health of Employees; COVID-19 Business Support. Amend RSA 277 by inserting after section 16 the following new section:
277:16-a COVID-19 Business Support. The labor commissioner shall, in coordination with the commissioner of safety, provide personnel protective equipment upon request of an employer. A state website shall be maintained for the purpose of employer requests, including adequate and timely notification of employers of when and where personnel protective equipment may be retrieved. There shall be no costs to employers with fifteen or fewer employees. The failure of the state to provide personnel protective equipment to employers who, in good faith, requested but did not receive personnel protective equipment from the state shall be considered in evaluating compliance with RSA 277:10-a.
13 New Paragraph; Job Training Program; Cost-Sharing Waived. Amend RSA 282-A:181 by inserting after paragraph II the following new paragraph:
III. Until July 1, 2021 any employer or business cost-sharing for the job training program is waived.
14 New Section; Accident and Health Insurance; Cost-Sharing for Testing for the Coronavirus (COVID-19) Waived; Individual. Amend RSA 415 by inserting after section 6-x the following new section:
415:6-y Cost-Sharing for Testing and Treatment for the Coronavirus (COVID-19) Waived. Each insurer that issues or renews any individual policy of accident or health insurance providing benefits for medical or hospital expenses, shall waive cost-sharing for coronavirus (COVID-19) testing and treatment, including any out-of-network charges, for certificate holders of such insurance who are residents of this state.
15 New Section; Accident and Health Insurance; Cost-Sharing for Testing for the Coronavirus (COVID)-19 Waived; Group. Amend RSA 415 by inserting after section 18-bb the following new section:
415:18-cc Cost-Sharing for Testing and Treatment for the Coronavirus (COVID-19) Waived. Each insurer that issues or renews any policy of group or blanket accident or health insurance providing benefits for medical or hospital expenses, shall provide to certificate holders of such insurance, who are residents of this state, shall waive cost-sharing for coronavirus (COVID-19) testing and treatment, including any out-of-network charges, for certificate holders of such insurance, who are residents of this state.
16 Health Services Corporations; Applicable Statutes. Amend RSA 420-A:2 to read as follows:
420-A:2 Applicable Statutes. Every health service corporation shall be governed by this chapter and the relevant provisions of RSA 161-H, and shall be exempt from this title except for the provisions of RSA 400-A:39, RSA 401-B, RSA 402-C, RSA 404-F, RSA 415-A, RSA 415-F, RSA 415:6, II(4), RSA 415:6-g, RSA 415:6-k, RSA 415:6-m, RSA 415:6-o, RSA 415:6-r, RSA 415:6-t, RSA 415:6-u, RSA 415:6-v, RSA 415:6-w, RSA 415:6-x, RSA 415:6-y, RSA 415:18, V, RSA 415:18, XVI and XVII, RSA 415:18, VII-a, RSA 415:18-a, RSA 415:18-i, RSA 415:18-j, RSA 415:18-o, RSA 415:18-r, RSA 415:18-t, RSA 415:18-u, RSA 415:18-v, RSA 415:18-w, RSA 415:18-y, RSA 415:18-z, RSA 415:18-aa, RSA 415:18-bb, RSA 415:18-cc, RSA 415:22, RSA 417, RSA 417-E, RSA 420-J, and all applicable provisions of title XXXVII wherein such corporations are specifically included. Every health service corporation and its agents shall be subject to the fees prescribed for health service corporations under RSA 400-A:29, VII.
17 Health Services Corporations; Applicable Statutes; Effective January 2021. Amend RSA 420-A:2 to read as follows:
420-A:2 Applicable Statutes. Every health service corporation shall be governed by this chapter and the relevant provisions of RSA 161-H, and shall be exempt from this title except for the provisions of RSA 400-A:39, RSA 401-B, RSA 402-C, RSA 404-F, RSA 415-A, RSA 415-F, RSA 415:6, II(4), RSA 415:6-g, RSA 415:6-k, RSA 415:6-m, RSA 415:6-o, RSA 415:6-r, RSA 415:6-u, RSA 415:6-v, RSA 415:6-w, RSA 415:6-x, RSA 415:6-y, RSA 415:18, V, RSA 415:18, XVI and XVII, RSA 415:18, VII-a, RSA 415:18-a, RSA 415:18-i, RSA 415:18-j, RSA 415:18-o, RSA 415:18-r, RSA 415:18-t, RSA 415:18-u, RSA 415:18-v, RSA 415:18-w, RSA 415:18-z, RSA 415:18-aa, RSA 415:18-bb, RSA 415:18-cc, RSA 415:22, RSA 417, RSA 417-E, RSA 420-J, and all applicable provisions of title XXXVII wherein such corporations are specifically included. Every health service corporation and its agents shall be subject to the fees prescribed for health service corporations under RSA 400-A:29, VII.
18 Health Maintenance Organizations; Statutory Construction. Amend RSA 420-B:20, III to read as follows:
III. The requirements of RSA 400-A:39, RSA 401-B, RSA 402-C, RSA 404-F, RSA 415:6-g, RSA 415:6-m, RSA 415:6-o, RSA 415:6-r, RSA 415:6-t, RSA 415:6-u, RSA 415:6-v, RSA 415:6-w, RSA 415:6-x, RSA 415:6-y, RSA 415:18, VII-a, RSA 415:18, XVI and XVII, RSA 415:18-i, RSA 415:18-j, RSA 415:18-r, RSA 415:18-t, RSA 415:18-u, RSA 415:18-v, RSA 415:18-w, RSA 415:18-y, RSA 415:18-z, RSA 415:18-aa, RSA 415:18-bb, RSA 415:18-cc, RSA 415-A, RSA 415-F, RSA 420-G, and RSA 420-J shall apply to health maintenance organizations.
19 Health Maintenance Organizations; Statutory Construction; Effective January 1, 2021. Amend RSA 420-B:20, III to read as follows:
III. The requirements of RSA 400-A:39, RSA 401-B, RSA 402-C, RSA 404-F, RSA 415:6-g, RSA 415:6-m, RSA 415:6-o, RSA 415:6-r, RSA 415:6-u, RSA 415:6-v, RSA 415:6-w, RSA 415:6-x, RSA 415:6-y, RSA 415:18, VII-a, RSA 415:18, XVI and XVII, RSA 415:18-i, RSA 415:18-j, RSA 415:18-r, RSA 415:18-t, RSA 415:18-u, RSA 415:18-v, RSA 415:18-w, RSA 415:18-z, RSA 415:18-aa, RSA 415:18-bb, RSA 415:18-cc, RSA 415-A, RSA 415-F, RSA 420-G, and RSA 420-J shall apply to health maintenance organizations.
20 New Paragraph; State Employees Health Insurance; Medical and Surgical Benefits. Amend RSA 21-I:30 by inserting after paragraph XVI the following new paragraph:
XVII. Medical and surgical benefits provided under this subdivision shall include waiving cost-sharing for testing and treatment for the coronavirus (COVID-19).
21 New Subparagraph; Medicaid Managed Care, Cost-Sharing for Certain Testing Waived. Amend RSA 126-A:5, XIX by inserting after subparagraph (k) the following new subparagraph:
(l) Managed care organizations shall waive all cost-sharing for coronavirus (COVID-19) testing and treatment for Medicaid recipients receiving care pursuant to this paragraph.
I. Sections 17 and 19 shall take effect January 1, 2021 at 12:03 p.m.
II. The remainder of this act shall take effect upon its passage.
20-2209
Revised 9/8/20
Amended 6/16/20
HB 1166-FN- FISCAL NOTE
AS AMENDED BY THE SENATE (AMENDMENT 2020-1471s)
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ X ] Highway [ X ] Other - Various Government Funds | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
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LOCAL: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
METHODOLOGY:
Makes various changes in unemployment compensation for purposes of the Coronavirus (COVID-19); extends the provisions of the federal Family and Medical Leave Act for certain COVID-19 protections; requires employers to provide certain sanitation conditions relating to COVID-19; and waives cost-sharing for testing for COVID-19 under accident and health insurance policies.
The Department of Employment Security (DES) states that sections 1-4 and 6-7 of HB 1166 as amended would cause the New Hampshire unemployment compensation program to be out of compliance and conformity with federal requirements which would expose the State to sanctions by the US Department of Labor. If the State were deemed to be out of compliance with federal requirements, this would result in the loss of approximately $30M in lost grant funding to the Department for administering the state’s unemployment compensation program. Additionally, being out of conformity with federal requirements would have an adverse impact on NH employers causing them to be obligated to pay an estimated $200M in additional federal unemployment compensation tax payments for which they are currently relieved of paying because the state is in compliance and conformity with federal requirements. This is because employers would no longer be able to benefit from the Federal Unemployment Tax Act (FUTA) tax credit which means they would be forced to pay the full 6.0% of the FUTA tax instead of only paying 0.6% in FUTA taxes.
DES states the United States Department of Labor (USDOL) has not yet been able to respond to the Department’s request for conformity review of the proposed legislation. However, USDOL has issued guidance to all states on May 11, 2020 directly on point regarding the concerns raised by the Department. DES explains conformity and compliance issues involve the Social Security Act, the Federal Unemployment Tax Act and applicable provisions of the FAMILIES FIRST CORONAVIRUS RESPONSE (FFCRA) (P.L. 116 - 127) and the CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY (CARES) ACT OF 2020 (PUB. L. 116-136).
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The following list provides examples of the conflicts with federal requirements created by HB 1166 as amended (2020-1471s):
Section 1; Waiver of standard requirements under 282-A:31-h (and Chapter 282-A) for eligibility to receive Self-Employment Assistance (“SEA”) if not met due to quarantine or other COVID-19 related reasons as directed by a medical provider. The federal statute which permits SEA programs lists specific exceptions to its requirements. The proposed amendment goes beyond the exceptions listed at 26 U.S. Code Sec. 3306(t) (FUTA).
Section 2; Waiver of basic eligibility requirements, including most notably the requirement to file a weekly claim, under RSA 282-A:31, I(a) through (g) for individuals in quarantine for coronavirus or COVID-19, as directed by a medical provider or government direction, or for COVID-19 related reasons. The provision would create a broad category of individuals who would not be required to: (1) file unemployment claims, (2) disclose child support obligations, and (3) participate in virtual reemployment activities. Additionally, the requirement that a Claimant be able and available to work pursuant to RSA 282-A:31, I(c), which this section seeks to waive, is a federal requirement. Neither the CARES Act nor FFCRA allow states to waive these requirements but rather instead only allow states temporary flexibility such as that currently being exercised by the department during and limited to the state of emergency. Further, as stated by USDOL in UIPL 23-20, such waivers would make New Hampshire ineligible for any extension of the FPUC program. FPUC is the program that expired on July 31st that continues to be discussed for possible extension that prior to expiration provided $843.8 million to workers in New Hampshire in the form of weekly $600 payments while filing for unemployment.
Section 3; This section seeks to create state eligibility for individuals currently unemployed as a result of COVID-19 thus foregoing federal eligibility and the associated federal funding. Because the emergency order issued by Governor Sununu on March 17, 2020 initially creating eligibility for people impacted by COVID-19 was issued before the Federal government passed the CARES Act creating the Federally funded Pandemic Unemployment Assistance (PUA) program, the emergency order contained a self-termination clause so that if the federal government passed a program with similar eligibility, like the CARES Act did with PUA, then the emergency order provisions would terminate thus allowing the state to participate in the Federally funded PUA program. This legislation would do the opposite and would cause New Hampshire to be the only state in the country to not participate in the federally funded PUA program. HB 1166 as amended would result in all PUA covered individuals being deemed eligible for State UI instead, thus resulting in a loss of federal PUA funding and a shifting of the financial obligation onto the state’s unemployment compensation trust fund. New Hampshire has received thus far over $200 million in PUA payments from the Federal government without which the state’s unemployment compensation trust fund would have already been depleted and we would be forced to have prematurely borrowed from the federal government in order to continue to pay unemployment benefits. Unlike the PUA funding received by the department that is not required to be repaid, if all individuals were instead eligible for regular state UI as proposed under HB 1166 as amended then the additional borrowing from the federal government would all have to be repaid by New Hampshire employers through quarterly unemployment compensation taxes.
Section 4; Waives overpayments under RSA 282-A:165, I, when claimants are receiving benefits under executive orders related to COVID-19 expanded eligibility. The proposed statutory waiver is without regard to whether the reason for the overpayment which is waived is related to such executive order. Pursuant to USDOL directives, the Department is required to collect overpayments of regular UC benefits and PUA benefits. Waiving overpayments under state statute would result in a conflict with federal requirements and expose NH to conformity concerns.
The Department of Labor indicates proposed RSA 275:52-b would extend the provisions and protections of the Federal Family and Medical Leave Act of 1993 (FMLA) to all employers with 15 or more employees in the context of situations in which there is a COVID-19 related quarantine or condition requiring leave. The new section shall not apply in instances in which the Commissioner determines “there to be an economic hardship”. The Department reports the bill adds new sections or amend existing provisions to explicitly reference an employer’s obligation to account for COVID-19 in the context of providing a safe workplace to employees. Such provisions deal with sanitation, paid time off for COVID-19 testing and PPE upon request, and employer access to PPE through the Department of Labor at no cost to employers with 15 or fewer employees. The Department doe not anticipate any appreciable increase in state revenues. However, it is possible that there could be additional fines levied through the added protections and revenue to the extent employers of 15 or more employees would bear a cost in relation to PPE procurements. The Department anticipates there would be an indeterminable increase to expenditures at the state, county and local level attributable to:
The Department of Health and Human Services states for the majority of the language in bill, the fiscal impact, if any, applies to other state agencies including, but not necessarily limited to, the Department of Employment Security and the Department of Labor. Regarding section 13 which amends RSA 277:16 to require the Commissioner of Labor, in consultation with the Commissioner of Health and Human services to adopt worker safety rules, pursuant to RSA 541-A, to protect workers from COVID-19 and to protect the public interest, including consistent with RSA 277:16-b, RSA 277:10-a, and RSA 277:10.” The Department anticipates an indeterminable fiscal impact and related resource demands on the agency as a result of this section. The proposed amendment to RSA 126-A:5, XIX provides that Managed care organizations shall waive all cost-sharing for coronavirus testing and treatment for Medicaid recipients. The Department anticipates this requirement will result in an indeterminable increase in expenditures in the Medicaid program and Medicaid Care Management.
The Insurance Department indicates the bill would require insurers to waive cost sharing provisions for COVID-19 testing and treatment (including out of network charges). The Department assumes such coverage is still subject to the medically necessary requirement. This requirement may cause inflationary pressures on claim costs as these claims would need to be fully paid by the insurer. Further, without cost sharing, there may be inflationary pressure on utilization. Insureds will more readily accept such coverage. This may result in premium increases or benefit buy-downs, which may impact premium revenue.
The Department of Administrative Services indicates section 20 of the bill would amend RSA 21-I:30 requiring the State Health Benefit Plan to waive cost sharing for testing and treatment for COVID-19. The Department states the fiscal impact of this provision is indeterminable as the number of members of the Health Plan that may need testing and treatment and the extent of such treatment cannot be predicted.
AGENCIES CONTACTED:
Departments of Administrative Services, Employment Security, Health and Human Services, Insurance and Labor