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.

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.