Court Reinstates OSHA Vaccination Mandate for Private Employers

On Friday, Dec. 17, 2021, the 6th Circuit Federal Court of Appeals reinstated the Occupational Safety and Health Administration’s (OSHA) federal emergency temporary standard (ETS) for COVID-19. The 6th Circuit decision reverses the stay ordered in November by the 5th Circuit and allows OSHA to resume ETS implementation and enforcement nationwide.

The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. ETS opponents have already filed an appeal with the U.S. Supreme Court challenging the 6th Circuit’s decision.

OSHA Response and Guidance

OSHA has published the following guidance regarding the reinstatement:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Impact on Employers

The 6th Circuit’s decision suggests the ETS may survive its legal challenges. Employers subject to the ETS should monitor legal developments closely. They should also consider what measures they would need to adopt to be considered to have made reasonable, good faith efforts to comply if the Supreme Court upholds the ETS.

Understanding the Omicron Variant

A new variant of coronavirus is prompting renewed concern regarding the pandemic. The World Health Organization (WHO) named the new variant “Omicron.” Omicron is labeled a “variant of concern,” the agency’s serious category for tracking. Such a designation is reserved for dangerous variants that may be more transmissible or virulent or could decrease the effectiveness of vaccines or treatments.

This article features Omicron information from the Centers for Disease Control and Prevention (CDC).

The Emergence of Omicron

On Nov. 24, 2021, a new coronavirus variant was reported to the WHO. This new variant was first detected in Botswana and South Africa.

On Dec. 1, 2021, the first confirmed U.S. case of Omicron was identified. The CDC continues to collaborate with global public health and industry partners to learn about Omicron and monitor its course. At the time of publication, experts don’t yet know how easily it spreads, the severity of illness it causes, or how well available vaccines and medications work against it.

Despite the increased attention of Omicron, Delta remains the main variant circulating in the United States.

What Is Known About Omicron

The CDC shared the following information about the infection and spread of Omicron.

How easily does Omicron spread?

The Omicron variant likely will spread more easily than the original coronavirus strain, but how easily Omicron spreads compared to Delta remains unknown. The CDC expects that anyone with an Omicron infection can spread the virus to others, even if they are vaccinated or don’t have symptoms.

Will Omicron cause more severe illness?

More data is needed to know if Omicron infections, especially reinfections and breakthrough infections in fully vaccinated people, cause more severe illness or death than infection with other variants.

Will vaccines work against Omicron?

Current vaccines are expected to protect against severe illness, hospitalizations and deaths due to infection with the Omicron variant. However, breakthrough infections in fully vaccinated people are likely to occur. With other variants, like Delta, vaccines have remained effective at preventing severe illness, hospitalizations and death. The recent emergence of Omicron further emphasizes the importance of COVID-19  vaccination and boosters.

Will treatments work against Omicron?

Scientists are working to determine how well existing treatments for COVID-19 work. Based on the changed genetic makeup of Omicron, some treatments are likely to remain effective while others may be less effective.

Tools to Fight Omicron

There are several tools available today in the United States to fight the Omicron variant. According to the CDC, the following tools can help reduce the spread of Omicron in our country:

• ·        Vaccines remain the best public health measure to protect people from COVID-19, slow transmission and reduce the likelihood of new variants emerging. The CDC recommends everyone 5 years of age and older protect themselves from COVID-19 by getting fully vaccinated.
• ·         Masks offer protection against all variants of COVID-19. Regardless of vaccination status, the CDC recommends wearing a mask in public indoor settings in areas of substantial or high community transmission.
• ·        Tests can tell you if you are currently infected with COVID-19. Visit your state, tribal, local or territorial health department’s website to look for the latest local information on testing.

While we learn more about the risk of Omicron, it’s essential to use all tools available to protect yourself and others.

Stay Tuned

CDC experts are working to gather data and virus samples that can be studied to answer important questions about the Omicron variant. Scientific experiments have already started, and the CDC will provide updates as soon as possible.

Health FSA Limit Will Increase for 2022

The Affordable Care Act (ACA) imposes a dollar limit on employees’ salary reduction contributions to health flexible spending accounts (FSAs) offered under cafeteria plans. This dollar limit is indexed for cost-of-living adjustments and may be increased each year.

On Nov. 10, 2021, the IRS released Revenue Procedure 2021-45 (Rev. Proc. 21-45), which announced that the health FSA dollar limit on employee salary reduction contributions will increase to $2,850 for taxable years beginning in 2022. This is a $100 increase from the 2021 health FSA limit of $2,750. Rev. Proc. 21-45 also increases the carryover limit for a health FSA to $570. It also includes annual inflation-adjusted numbers for 2022 for a number of other tax provisions.

Employers should ensure that their health FSAs will not allow employees to make pre-tax contributions in excess of $2,850 for the 2022 plan year and communicate the 2022 limit to their employees as part of the open enrollment process.

Employer Limits

An employer may continue to impose its own dollar limit on employees’ salary reduction contributions to health FSAs, as long as the employer’s limit does not exceed the ACA’s maximum limit in effect for the plan year. For example, an employer may decide to limit employee health FSA contributions for the 2022 plan year to $2,500.

Per Employee Limit

The health FSA limit applies on an employee-by-employee basis. Each employee may only elect up to $2,850 in salary reductions in 2022, regardless of whether he or she also has family members who benefit from the funds in that FSA. However, each family member who is eligible to participate in his or her own health FSA will have a separate limit. For example, a husband and wife who have their own health FSAs can both make salary reductions of up to $2,850 per year, subject to any lower employer limits.