OSHA Withdraws COVID-19 ETS, but Not the Proposed Permanent Rule

On Jan. 25, 2022, OSHA provided notice that it is withdrawing its COVID-19 vaccination and weekly testing emergency temporary standard (ETS). The withdrawal will be effective once the notice is published in the Federal Register. The expected publication date is Jan. 26, 2022.

The ETS was adopted to protect unvaccinated employees working for employers with 100 or more employees from the risk of contracting COVID-19. This ETS required employers to adopt either a mandatory vaccination policy or a weekly testing and face-covering policy for all employees. When the ETS was published, OSHA also stated it was using the ETS as a proposed rule. OSHA is required by federal law to publish and accept public commentary on proposed rules before promulgating a new permanent occupational safety and health standard.

OSHA’s Withdrawal

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) stayed the vaccination and testing ETS. Because of this ruling, OSHA is withdrawing the ETS as an enforceable ETS. However, the agency is not withdrawing the ETS as a proposed permanent rule, and the standard rule-making process will continue.

Impact on State Plans and Employers

States with OSHA-approved plans must implement and enforce workplace standards that are at least as effective as federal standards. However, since there are no new federal vaccination or testing requirements at this time, state plans are not required to take any action.

Similarly, employers are not required to comply with OSHA’s ETS at this time. However, employers are still expected to provide a safe and healthy workplace for their employees and follow other existing OSHA COVID-19 guidance. Employers should also monitor OSHA communications for information about the possible permanent standard.

How Employers Can Move Forward Following the OSHA ETS Block

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to halt OSHA’s COVID-19 vaccination and testing emergency temporary standard (ETS). This means that employers are no longer required to develop COVID-19 vaccination or testing policies for their workplaces. However, employers may still want to take steps to reduce potential COVID-19 exposures for their employees. This article provides more information about the current status of the OSHA ETS and ongoing COVID-19 safety considerations for employers.

OSHA ETS Litigation Overview

OSHA issued the COVID-19 vaccination and testing ETS on Nov. 5, 2021, for private employers with 100 or more employees. Since then, the ETS has been through a series of litigation. First, the 5th U.S. Circuit Court of Appeals granted a stay for the ETS. Then, the 6th U.S. Circuit Court of Appeals removed the stay. Most recently, the SCOTUS decided to reissue the stay, officially halting the ETS for the time being.

Employers have had to deal with much litigation surrounding the implementation of the ETS. For now, since the ETS is not required, employers can decide on their own if they would like to implement a COVID-19 vaccine mandate, conduct weekly testing or do neither. Regardless of the ETS, employers must remember that if OSHA inspects their business and discovers safety or health issues related to COVID-19, the agency can still issue citations under the general duty clause.

OSHA emphasized this after the SCOTUS made its ruling to halt the ETS. The agency released the following statement:

 “Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

Furthermore, although OSHA does not currently mandate the ETS requirements, it is important for employers to determine whether any applicable state or local laws require them to implement COVID-19 vaccination rules.

Can the OSHA ETS Return?

The SCOTUS did not permanently get rid of the OSHA ETS. The stay that has been issued is temporary in nature; OSHA could bring back the ETS through a permanent rule, which the agency has already started to implement and is currently in the comment period. If the permanent rule for the ETS gets finalized, it would likely be met with further litigation. In other words, although the ETS has not been ultimately struck down, the prognosis of future ETS implementation remains uncertain.

Amid this evolving ETS landscape, employers are encouraged to stay updated on their current requirements. They should also continue to utilize health and safety measures to minimize COVID-19 cases in the workplace and prevent potential exposures.

Determining a COVID-19 Vaccination Policy

Considering the current state of the OSHA ETS, employers should determine what their specific policies will be regarding COVID-19 vaccination. In particular, employers need to decide whether they plan to issue vaccine mandates in their workplaces or have policies for preventing and responding to COVID-19 exposures. Employers are able to require all employees who physically enter the workplace to be vaccinated against COVID-19 so long as they provide reasonable accommodations under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. In any case, employers should remember to check their state and local requirements to ensure any policies they adopt are compliant.

Key questions employers should consider when determining whether they should implement a COVID-19 vaccine mandate include:

·         What does the workforce think about the mandate? What are the general concerns employees have with a vaccine mandate?

·         How will the mandate be introduced to employees? Will there be an informational session to address any questions or concerns employees may have prior to mandating the vaccine?

·         How will exemption requests for religious concerns or disability issues be handled? Will these issues be addressed consistently and in a timely fashion to prevent any legal issues?

·         Will the mandate create difficulties in retaining employees or motivate employees to seek other employment with businesses that don’t require the vaccine?

·         Will any employees need to be hired to deal exclusively with all COVID-19 related policies, or can the HR team handle any questions, concerns and issues that may arise from such policies?

If employers decide against a vaccine mandate, they should make sure they have effective health and safety policies and procedures in place to protect their unvaccinated employees. Doing so can help create a safer environment for all workers. Some COVID-19 safety precautions to consider include the implementation of physical distancing expectations, face-covering requirements and weekly COVID-19 testing.

If employers decide to require weekly testing, they can use the OSHA ETS as a guide for keeping records as well as developing and implementing such a policy. Some matters employers should examine when requiring COVID-19 testing include:

·         Whether tests are readily available

·         Who will manage testing procedures

·         What recordkeeping processes are required for collecting test results

·         Whether recordkeeping processes are compliant with applicable regulations

·         Whether employees are able to obtain tests in the areas in which they live (if the tests are not provided at work)

These are all important factors for employers to review before introducing COVID-19 testing requirements into the workplace. Employers should carefully weigh the pros and cons of each factor before making a final decision.

Vaccine Incentives

If employers decide to encourage employees to receive the COVID-19 vaccine instead of requiring it, they may want to consider providing vaccine incentives. Some common incentives include monetary bonuses or additional paid time off. According to the Equal Employment Opportunity Commission, employers are permitted to provide these incentives to their employees. Employers are not limited or prevented from doing so, provided that employees voluntarily provide documentation or other confirmation of their vaccination status from a third-party provider.

To clarify, employers are permitted to offer vaccine incentives as long as they are not coercive in nature. Since the vaccination process typically entails employees filling out pre-vaccination questionnaires, providing significant incentives could make employees feel pressured to provide medical information they may not want to share. It’s also important to note that employers cannot offer incentives to employees to have their family members get vaccinated.

Health Insurance Considerations

Apart from implementing COVID-19 vaccine mandates or incentives, employers may want to consider placing a surcharge or higher premium costs on their health insurance plans for employees who choose not to get vaccinated. This practice has been utilized to discourage other activities among employees, such as smoking. However, employers must ensure that any changes in health insurance offerings related to vaccination status are compliant with applicable federal, state and local employment laws. Specifically, employers should be aware of potential violations of the Health Insurance Portability and Accountability Act and the Affordable Care Act. Above all, it’s crucial for employers to do their research on laws and regulations they must follow to prevent violating employee rights.

Conclusion

Regardless of any future developments with the OSHA ETS, there are a range of different measures employers should consider to help prevent or reduce COVID-19 exposures in their workplaces. However, it’s vital for employers to understand the legal implications of each policy they put in place and make sure they are not violating employee rights when doing so.

Contact Better Business Planning, Inc. today for additional COVID-19 updates and workplace resources.

CDC Recommends Pfizer and Moderna as Preferred Vaccines over Johnson & Johnson

On Thursday, Dec. 16, 2021, the Centers for Disease Control and Prevention (CDC) recommended Americans avoid receiving the Johnson & Johnson (J&J) COVID-19 vaccine when others are available, such as the Pfizer-BioNTech and Moderna versions.

The J&J vaccine is linked with the potential to trigger a rare blood clotting issue—the likelihood of which appears to be more prevalent than once believed, according to health experts.

The CDC’s Advisory Committee on Immunization Practices unanimously endorsed the decision to avoid the J&J vaccine, which came after the Food and Drug Administration (FDA) provided updated information on the blood clot risks. The panel also mentioned the J&J vaccine shows evidence of reduced effectiveness compared to other brands and hinted this may have factored into the avoidance recommendation.

Currently, over 50 people have been hospitalized due blood clots believed to be linked to the J&J vaccine, and nine people have died.

The J&J vaccine will still remain on the market. It will continue to be available to those “unable or unwilling” to receive the Pfizer-BioNTech or Moderna COVID-19 vaccines, according to the CDC. The FDA noted that the benefits of vaccination still outweigh the risks.

What’s Next?

Approximately 16 million Americans have received the J&J vaccine so far, according to CDC data. Since the CDC and FDA have already authorized “mix and match” shots, these individuals are encouraged to seek a booster of another brand (e.g., Pfizer-BioNTech or Moderna).

There is still much unknown about the blood clotting issue, although the CDC says women under the age of 50 are at a higher risk.

According to the CDC, COVID-19 vaccines are safe and effective. Anyone seeking to learn more about the blood clotting issue and vaccine guidance can visit the CDC website.

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.

Federal Court Blocks OSHA COVID-19 Vaccination and Testing ETS

On Saturday, Nov. 6, 2021, the fifth Circuit Court of Appeals ordered a temporary stay on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and Testing for the workplace. The order effectively prevents enforcement of this ETS until a final decision regarding the legality of this standard is published.

OSHA’s COVID-19 ETS

On Nov. 4, 2021, the OSHA announced the ETS to address COVID-19 transmission in the workplace. The ETS requires affected employers to comply with most provisions by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard. 

Temporary Stay

The stay was ordered in one of multiple lawsuits challenging the validity of OSHA’s COVID-19 ETS. These lawsuits request a permanent injunction against the ETS. The Court justified the order because it found “cause to believe there are grave statutory and constitutional issues” with the OSHA vaccination mandate.

The Court has ordered OSHA to respond to the request for permanent injunction by 5 p.m. on Monday, Nov. 8, 2021. Parties petitioning the injunction will have until 5 p.m. on Tuesday, Nov. 9, 2021, to reply.

Impact on Employers

While the temporary stay effectively prevents enforcement of the ETS until a final decision on the legality of the standard is published, the law has not been permanently delayed or vacated officially. As a result, affected employers should continue in their efforts to understand and prepare for compliance with the various provisions of the ETS. Affected employers should also continue to monitor developments of this legal challenge to learn more about the viability of, and their compliance obligations with, the ETS.