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.

OSHA Releases Vaccination and Testing ETS

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS 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.

ETS Requirements

The ETS requires employers to:

·         Develop, implement and enforce a mandatory COVID-19 vaccination policy; or

·         Create a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing done.

Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination and keep a roster of each employee’s vaccinations status.

Weekly Testing Requirements

Employees who are not fully vaccinated must be tested weekly or within seven days before returning to work. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements.

Paid Leave

Employers are also required to allow reasonable time—including up to four hours of paid time—to receive a primary vaccination dose. Reasonable time and paid sick leave are also required to recover from any side effects of the vaccination. Employees are required to provide immediate notice of a positive COVID-19 test or diagnosis, and will be removed immediately from work until return to work criteria are met. 

Pfizer Seeks Vaccine Authorization for Children Ages 5-11

On Thursday, Oct. 7, drug manufacturers Pfizer and BioNTech said they have asked the Food and Drug Administration (FDA) to authorize their COVID-19 vaccine for use in children ages 5-11.

The Pfizer-BioNTech COVID-19 vaccine is currently the only vaccine fully approved for adults by the FDA.  For children ages 12-15, it is approved under emergency use authorization (EUA) rules.

The companies are requesting that the FDA expand the EUA so that children ages 5-11 can receive the vaccine as well.

FDA officials said they could have a decision on the matter sometime between Halloween and Thanksgiving.

What’s Next?

With a ruling expected in just a month or so, children ages 5-11 may be able to get vaccinated as soon as December.

Such authorization could speed up efforts from school systems that are looking to vaccinate their students. California recently announced that eligible students will need to be vaccinated against COVID-19 in 2022.

If the Pfizer-BioNTech vaccine is authorized to be used with younger children, other school systems may consider similar measures.

Right now, individuals will need to wait to see how the FDA rules on the subject.

Clarifying Guidance on COBRA Deadline Extension Relief

IRS Notice 2021-58 clarifies the application of certain COBRA deadline extensions for electing COBRA coverage and paying COBRA premiums under prior relief that was issued as a result of the COVID-19 outbreak (“Emergency Relief”). Under the Emergency Relief, up to one year must be disregarded in determining the due dates for individuals to elect COBRA coverage and pay COBRA premiums during the Outbreak Period (i.e., 60 days after the announced end of the National Emergency).

Notice 2021-58 clarifies that the disregarded periods to elect COBRA coverage and make initial and subsequent COBRA premium payments generally run concurrently. The guidance provides the following rules to illustrate the applicable time frames:

·        If an individual elected COBRA coverage within the initial 60-day COBRA election time frame, they will have one year and 45 days after the date of the election to make their initial COBRA premium payment.

·         If an individual elected COBRA coverage outside of the initial 60-day COBRA election time frame, they generally will have one year and 105 days after the date the COBRA notice was provided to make the initial COBRA premium payment (subject to transition relief).

The guidance also addresses the interaction of the Emergency Relief with the COBRA subsidies that were made available for certain eligible individuals under the American Rescue Plan Act (ARPA).  

Action Steps

Employers should carefully review the guidance and consult benefits counsel to ensure their ongoing compliance with the Emergency Relief, as clarified by Notice 2021-58. 

Application of Emergency Relief to COBRA Elections and Paying COBRA Premiums

Individuals must make the initial COBRA election by the earlier of:

·         One year and 60 days after the individual’s receipt of the COBRA election notice; or

·         The end of the Outbreak Period.

Applying the disregarded periods in this way means that individuals who delay electing COBRA may not have more than one year of total disregarded time for the COBRA election and initial COBRA payment. For example, an individual generally may not delay electing COBRA coverage for six months and then add another full year to the disregarded period for purposes of determining the deadline for making the initial COBRA premium payment (resulting in a total of 18 months of disregarded time for both the COBRA election and initial COBRA payment). Instead, the maximum disregarded period of one year is applied concurrently to the timeframe for the COBRA election and initial COBRA premium payment. However, these timeframes are subject to the transition relief provided below.

For each subsequent COBRA premium payment, the maximum time an individual has to make a payment while the Outbreak Period continues is one year from the date the payment originally would have been due in the absence of the Emergency Relief (including the mandatory 30-day grace period), but subject to the transition relief provided below.

Notice 2021-58 Transition Relief

Because some individuals may have assumed that the disregarded period for making the initial premium payment begins on the date of the COBRA election, individuals who made elections more than 60 days after receipt of the election notice may have less time than they anticipated to make their initial premium payment. Thus, Notice 2021-58 provides that in no event will an initial COBRA premium payment be due before Nov. 1, 2021 (even if Nov. 1, 2021 is more than one year and 105 days after the date the election notice was received), as long as the individual makes the initial COBRA premium payment within one year and 45 days after the election date.

This transition relief is an exception to the general rule that disregarded periods for COBRA elections and initial COBRA payments run concurrently with respect to each individual.

Interaction with ARPA COBRA Premium Subsidy

The extensions under the Emergency Relief do not apply to the timeframes for electing COBRA coverage with ARPA premium subsidies, or for providing the required notice of the ARPA extended election period. An individual who has a disregarded period under the Emergency Relief may elect retroactive COBRA coverage, subject to the clarifying guidance in Notice 2021-58, and may elect COBRA coverage with ARPA premium subsidies for any period for which the individual is eligible for premium assistance. However, the disregarded periods under the Emergency Relief continue to apply to payments of COBRA premiums after the end of the ARPA premium subsidy period, to the extent that the individual is still eligible for COBRA coverage and the Outbreak Period has not ended.

Examples

Notice 2021-58 provides 10 comprehensive examples to illustrate how COBRA elections and premium payments are treated under Notice 2021-58, including how to apply the ARPA premium subsidies. All of the examples assume that the group health plans have calendar month coverage periods, with premium payments due by the first of the month, and that the plans provide that qualified beneficiaries must make COBRA premium payments within the statutory 30-day grace period.

What President Biden's Vaccine Mandate Means for Employers

President Joe Biden’s administration is continuing its efforts to curb the COVID-19 pandemic and the spread of the deadly coronavirus Delta variant. Recently, the White House ordered all federal workers and contractors to get vaccinated against COVID-19. Now, the government is imposing a similar requirement on private employers. The move is estimated to affect over 80 million private-sector workers.

The Occupational Safety and Health Administration (OSHA) has been tasked with drafting an emergency temporary standard (ETS) and will announce more specifics in the coming weeks. Soon, employers with 100 or more employees will need to adapt their vaccine policies to comply with these new rules.

This article discusses this latest vaccination mandate, including its scope and how it may affect employers.

Note: This is a developing issue. Information will be updated here and in subsequent resources as more details are released.

Rule Overview

Soon, employers with 100 or more employees (measured companywide, not by location) will need to enforce one of the following:

·         Require employees to get vaccinated against COVID-19

·         Require unvaccinated employees to produce evidence of a negative COVID-19 test each week

This flexibility allows employers to choose how strictly they want to enforce a vaccine mandate. In other words, some employers may decide to make vaccination a condition of employment; others may only require negative COVID-19 tests.

What’s Known About the Upcoming Rule

OSHA is tasked with drafting the new rule. As such, there will be few details available before OSHA publishes a definitive ETS. Meanwhile, the only pertinent information has come from short government briefings.

Here’s what’s known about the upcoming rule, keeping in mind these particulars may change in time:

·         The rule will only apply to employers with 100 or more employees, measured companywide.

·         Employers will be able to decide if they want to adopt a strict, mandatory vaccination policy or allow testing as an alternative.

·         Employers must provide paid leave to receive and recover from vaccinations.

·         Remote employees not working in contact with others will be exempt from the ETS (unless they come into the workplace).

Again, all aspects of this upcoming rule are subject to modification as OSHA continues to work on the details. The above information is provided to help employers understand how the government is proceeding in this area.

What’s Unknown About the Upcoming Rule

Much is still unknown about the upcoming vaccine requirement, and it will remain as such until OSHA publishes the ETS. Here are just some of the questions that remain to be answered:

·         When will the ETS begin being enforced?

·         What qualifies as proof of vaccination or a negative COVID-19 test?

·         Who must pay for weekly testing?

·         What specific penalties will there be for noncompliance?

·         Will the mandates apply to part-time workers?

·         Will there be new guidance on how employers should handle accommodations for employees seeking an exemption?

·         Must paid leave be provided for employees’ COVID-19 testing, as it is for vaccinations?

As the list illustrates, there are many unknown factors at this time. Employers will need to stay tuned for updates from OSHA as they come; however, that employers can take action in the meantime.

Expected Enforcement Timetable

The vaccination mandate will come in two primary waves:

1.       An ETS with comprehensive details and actionable steps

2.       A permanent OSHA standard with all aspects fleshed out

First, OSHA will publish its ETS that will include important details and enforcement guidelines. This is expected to come in the weeks ahead; however, an actual release date is uncertain. Once issued, the ETS will take immediate effect in states where federal OSHA has jurisdiction. In states where the federal government does not have jurisdiction over workplace safety, state agencies will have to either adopt the ETS or develop their own ETS within 30 days that is “at least as effective.”

An ETS can only remain in effect for six months. After that time, it must be replaced by a permanent standard, which must undergo a formal rule-making process involving a notice-and-comment period to allow stakeholders to submit feedback. This process follows the usual procedure for adopting a permanent standard except that a final ruling should be made within six months from that date OSHA publishes the ETS in the Federal Register.

In summation, employers can expect the ETS sometime within the year, but its specifics may ultimately change as the standard is finalized.

What Employers Can Do Now

While many details are still unknown, the primary vaccination or testing requirement is definite. As such, employers can at least prepare for this aspect of the mandate. Here are some actions employers can consider when preparing for the upcoming requirement:

·         Determine whether COVID-19 vaccination will be required as a condition of employment or if weekly negative testing will be an alternative.

·         Consider how to handle accommodation requests for those seeking vaccination exemptions.

·         Start planning an employee communication campaign to educate workers about vaccine policy changes.

·         Think about the systems needed to adequately track employee vaccination statuses and confidentially secure the data.

·         Plan for potential staffing shortages or scheduling changes to afford employees time to get vaccinated.

·         Consider whether partitions or spaced-out workstations will be utilized

This list is nonexhaustive, as certain considerations will be unique to individual employers.

Though the ETS will almost certainly face multiple legal challenges, employers should not count on the rule being entirely struck down and should begin preparing to comply as soon as possible.

Conclusion

The specifics of this latest vaccine mandate are still being drafted, so its rules may seem like a distant concern; however, these requirements will take effect quickly once they’re announced. Employers will need to act swiftly when the time comes to ensure compliance. Taking proactive steps now can help save employers from a scramble at the end of the year.

Reach out to Better Business Planning, Inc. to discuss how this new rule may affect your business. In the meantime, stay tuned for updates as this situation develops.

COBRA Subsidy Notice Due by Sept. 15 (Sooner for Some)

The American Rescue Plan Act (ARPA) provides COBRA premium assistance to eligible individuals and imposes notice requirements on health plans. One such requirement is that plans must notify eligible individuals about when their premium assistance ends, and whether they may be eligible for regular COBRA coverage or coverage under another group health plan.

Background

The ARPA requires the full cost of COBRA premiums from April 1, 2021, through Sept. 30, 2021, to be subsidized for certain assistance-eligible individuals whose work hours were reduced or whose employment was involuntarily terminated. The subsidies are reimbursed directly to the employer, plan administrator, or insurance company (as applicable) through a COBRA subsidy tax credit.

Notice of Subsidy Expiration

The notice of premium subsidy expiration must be provided during the 45 - 15-day period before an individual’s subsidy expires. This means that, for individuals whose subsidy is expiring due to the end of the subsidy period, the notice must generally be provided from Aug. 16, 2021, to Sept. 15, 2021. Otherwise, the due date will depend on when an individual’s maximum COBRA coverage period ends.

Plans are not required to issue an expiration notice to individuals whose subsidy is expiring because they became eligible for other group health plan coverage or Medicare.

Model Notice Available

The U.S. Department of Labor (DOL) has issued a model notice of expiration of premium assistance (Word / PDF) that can be used to satisfy this requirement. The model is also available in Spanish (Word / PDF).

4 Lessons Learned from Open Enrollment During the Pandemic

There’s no denying that the 2020 open enrollment season was unprecedented. It’s challenging enough most years to engage and educate employees to actively make decisions about their health care and other employer-sponsored benefits, and the prevalence of remote and hybrid workplaces added another level of complexity to the enrollment season.

The pandemic encouraged employers to reimagine their open enrollment processes and try different tactics. This article discusses key findings and lessons from last year’s open enrollment and how employers can best prepare for the 2021 season.

1. Employees Want—and Need—Holistic Benefits

As the name suggests, employee benefits should be designed to provide holistic support for employees. But, as was revealed as the pandemic evolved, the perks many employees want may not typically be available. These may include benefits or arrangements that began out of necessity due to the pandemic, such as telecommuting. Now, many employees expect at least some of these benefits to become permanent.

Employees may especially be expecting new benefits if very little changed in the past year. According to a survey from WEX, 85% of employers said they didn’t change their 2021 offerings due to the pandemic. It appears many employers kept their benefits packages during an uncertain year.

If employers are ready to revamp their benefits, what do employees want? The following are some of the top benefits employees are looking for right now:

·         Telecommuting

·         Flexible or hybrid scheduling

·         Greater compensation

·         Mental health resources

·         Caregiving benefits

·         Developmental opportunities

If unsure, employers should consider surveying employees or encouraging managers to discuss open enrollment during one-on-one meetings to better understand how employees are doing and which benefits they find most valuable. The overall goal is to establish meaningful offerings and resources for current and prospective employees.

2. More Time Is Needed to Thoughtfully Plan and Promote Open Enrollment

The most successful open enrollment campaigns start engaging employees months before enrollment opens. That means organizations need to start reviewing their offerings sooner rather than later so there’s ample time to develop and execute a successful open enrollment strategy or campaign. During the pandemic, employees leaned heavily on employer-sponsored mental health resources, employee assistance programs and other virtual resources. Benefits mattered even more to employees, and that provides an opportunity for employers this year to start showcasing all the available perks for employees as soon as possible to thoughtfully engage and retain employees.

Another reason employers have such a great opportunity is because of the massive wave of turnover expected by the end of 2021. Employers should prepare to get ahead of turnover by previewing new or enhanced benefits with employees. The pandemic allowed many people to rethink their values and make major life changes—possibly including finding new jobs. Many employees are staying in their current roles to collect a steady paycheck and keep household finances stable. That is, until the pandemic is over. Workplace stressors—worsened by the pandemic—are likely to blame. Additionally, compensation, benefits and work-life balance are top reasons why employees are job hunting this year, so it’s critical for employers to offer competitive benefits.

Don’t worry about communicating too soon about enrollment. Research shows that repetitive messaging and reminders increase the odds of an employee seeing enrollment information and understanding the upcoming benefit changes and how they work.

Open enrollment this year provides a fantastic opportunity for organizations to combat turnover by proving they have gone above and beyond to support employees with top-tier benefits offerings. Especially this year, the earlier employers can start their open enrollment processes, the better the participation and employee retention potential will be.

3. Virtual Open Enrollment Tactics Are Effective, Regardless if Employees Are On-site or Remote

The pandemic undeniably shifted open enrollment efforts to go digital. Consider the following WEX survey results:

·         For 2020 enrollment, 67% of employers delivered open enrollment education differently due to the pandemic. Tactics included virtual open enrollment fairs, live webinars and online chats during scheduled times to help address employee questions.

·         Of those employers that added virtual engagement methods to their open enrollment strategy, 85% said they will continue to do so in the future.

Virtual open enrollment fairs successfully educated and engaged employees, both remote and on-site. Employees have embraced many activities and processes as they’ve gone virtual or digital, so it’s not necessarily a surprise that employees generally accepted virtual enrollment.

That’s good news for organizations that offered virtual open enrollment opportunities, as they can optimize and improve for this coming season. To determine employees’ appetite for information and enrollment details, employers might consider surveying employees now for feedback on virtual enrollment components. Survey results can drive not just enrollment communications but also any ongoing benefits education throughout the year. This is the year to show up for employees year-round to keep them engaged and supported in the workplace, potentially increasing employee satisfaction and retention. Organizations operating in a hybrid workplace model may also yield great results by offering both in-person and virtual open enrollment events.

If employers don’t have an existing benefits website available, they could consider building an internal digital destination so employees have a year-round resource. HR departments can post evergreen partner resources and continue to share any other relevant benefits updates.

Furthermore, if employers have yet to switch to virtual open enrollment but plan to, it’s important to allow extra time to properly implement new technology or platforms in advance of open enrollment. Focusing on employee experience can help keep employees engaged in the enrollment process and keep morale high. Benefits administration technology can help streamline decision-making and other processes, explain benefits and thoughtfully guide employees as they make the best choices for them and their dependents.

4. Open Enrollment Needs to Be More Personalized and Interactive

Now, more than ever, employees want to know that their employers care about them and open enrollment isn’t just a transaction. Everyone has unique personal needs and their own physical, mental or financial challenges brought on by or amplified by the pandemic. It’s also important for employers or benefits providers to make themselves available to quickly address any individual employee questions and help guide them through the process or available options. This personalized touch can help increase benefits utilization.

Gamification is also proving popular as a way to personalize open enrollment. For example, employees may be interested in a benefits calculator to help decide which plan is best for them. Employees are ready for personalized help from tools or people to help guide them through the process and select the right benefits after a tough year.

Conclusion

Although the 2020 open enrollment season presented considerable challenges, it also provided valuable lessons on better engaging and supporting employees. Now’s the time for employers to review these general trends and lessons along with the specific needs and wants of their current and prospective workforce. Start now to thoughtfully plan and communicate 2021 open enrollment to increase plan participation and help combat potential turnover on the horizon.

Reach out to Better Business Planning, Inc. for additional open enrollment support, including enrollment guides, employee communication resources and more.