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.

Benefits Buzz Newsletter - August 2021

Additional FAQs on the ARPA COBRA Subsidy

On July 26, 2021, the IRS issued Notice 2021-46, providing additional guidance on the application of the American Rescue Plan Act (ARPA) subsidy for continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in the form of 11 questions and answers.

The Notice expands on prior guidance issued on May 18, 2021.

Background

The ARPA subsidy covers 100% of COBRA and state mini-COBRA premiums from April 1–Sept. 30, 2021, for certain assistance-eligible individuals whose work hours were reduced or whose employment was involuntarily terminated. The subsidy is funded via a tax credit provided to employers, insurers or group health plans, according to the terms of the statute.

Q&A Topics

The questions addressed include:

·   Subsidy availability to individuals eligible for an extension who had not elected it;

·   Whether subsidies for vision or dental-only coverage ends due to eligibility for other coverage that does not include vision or dental benefits;

·   Subsidy availability under a state statute that limits continuation coverage to government employees;

·   Whether employers may claim the tax credit if the Small Business Health Options Program (SHOP) Exchange requires employers to pay COBRA premiums; and

·   Which party may claim the tax credit in situations involving parties other than an insurer or former common law employer providing the COBRA coverage.

Proposed Rule Would Update Benefit and Payment Parameters for 2022

On July 1, 2021, the Department of Health and Human Services (HHS) published a proposed rule that would revise several benefit and payment parameters under the ACA for the 2022 benefit year. While many of the proposed changes primarily impact insurers and Exchanges, some provisions may affect employers.

·   

The rule proposes to repeal the Exchange direct enrollment option, which establishes a process for Exchanges to work directly with issuers, agents and brokers to operate enrollment websites through which consumers can apply for coverage, receive an eligibility determination and purchase a qualified health plan.

·   For the 2022 coverage year and beyond, the rule proposes to lengthen the annual open enrollment period for coverage through all Exchanges to Nov. 1 through Jan. 15. The current annual open enrollment period runs Nov. 1 through Dec. 15.

·   The rule proposes modifications to the Section 1332 State Innovation Waiver process, including changes to many of the policies and interpretations of the guardrails recently issued in the 2022 Notice of Benefit and Payment Parameters, which provided more flexibility for states to apply for waivers from certain ACA provisions.

CDC Urges Schools to Fully Reopen in the Fall, Releases New Guidance

On July 9, 2021, the Centers for Disease Control and Prevention (CDC) released new guidance for K-12 schools, urging them to fully reopen in the fall.

The CDC acknowledged that “students benefit from in-person learning,” even as the delta variant of COVID-19 spreads across the United States.

The agency encouraged school districts to use local health data to help make determinations about the level of COVID-19 prevention measures to use. For instance, areas with high vaccination rates may not need to require temperature screenings to enter a building.

Generally, the CDC’s new guidance recommends social distancing and mask-wearing among the unvaccinated in schools (which effectively means many K-12 students, as no vaccine has been authorized for use for ages younger than 12).

Since many students are ineligible for a vaccine, the CDC encourages “layered prevention strategies” (e.g., using multiple prevention strategies together consistently, such as social distancing and screening tests) to help protect everyone, including unvaccinated teachers.

However, the agency noted that some prevention measures, such as social distancing, may prevent schools from fully reopening. In those situations, the CDC said, layering additional protections is even more critical.

The message is clear from the CDC: Schools should reopen in the fall, take necessary precautions and inform decisions with local health data.

What’s Next?

This new guidance from the CDC is likely to be welcomed news among working parents, many of whom have been forced to work at home alongside their children. With reopened schools, parents won’t need to divide their focus between their jobs and caregiving responsibilities.

From an employer perspective, this new guidance means working parents may no longer need to stay home to watch children. Therefore, businesses may be able to reopen more swiftly in the fall—opposed to having staff trickle back in.

Additionally, employers should consider how this new guidance may affect the benefits they provide to working parents.

8 Policies to Review Before Returning to Work

Returning to in-person work is a top priority for many workplaces. As the impact of the COVID-19 pandemic lessens, employers are eager to get employees back in their buildings. But that comes with a series of complications.

The most significant complication is the fact that every workplace decision in the immediate future will be viewed through COVID-19-colored glasses. In other words, while the pandemic may be getting under control, it’s still top of mind for many people. Knowing this, employers will need to balance policies against health concerns. This means potentially updating preexisting policies or adding new ones to conform to the current reality where employees are still dealing with the lingering effects of the COVID-19 pandemic (e.g., greater dependent responsibilities, health conditions, financial disruptions, etc.).

To assist this effort, this article outlines eight workplace policies that employers may consider revisiting prior to reopening their businesses for in-person work. Reevaluating policies now can help better transition employees back into the workplace later.

Note, this is a general information article. The law is constantly evolving, and government guidance will continue to affect all these policies moving forward. Employers should contact legal counsel when amending or drafting any workplace policy.

1. Return-to-Work Policy

Some workplaces have stand-alone return-to-work policies that apply to employees temporarily unable to do their jobs due to injury or illness. These policies typically outline how an employee may still contribute to the organization while ill or injured. In other cases, return-to-work policies refer to the specifics of transitioning employees back to their regular positions or alternative arrangements. In the wake of the COVID-19 pandemic, employers may consider revising return-to-work policies to include individuals who are unwilling or unable to return to in-person work due to COVID-19 fears.

2. Travel Policy

Some workplaces require travel for certain positions. During a pandemic, this can make travelers wary. That’s why some employers have adapted their travel policies to limit nonessential travel and specifying precautions that employees should observe while traveling. These policies often include COVID-19 tests, self-quarantining or other measures to ensure the safety of traveling employees.

3. Remote Work Policy

Remote work policies may have been a fringe consideration just a few years ago, but now they’re nearly everywhere. And, during the COVID-19 pandemic, they have been invaluable. That’s why employees and employers alike are looking for ways to retain these arrangements. To that end, employers may want to explore how they can adapt their current remote work policies to accommodate employees even after the COVID-19 pandemic ends. Remote work policies typically specify how employees may request remote arrangements and outline the steps in the approval process. Policies may also be adapted to cover hybrid work situations, where employees work some in-person hours and some remote-working hours. Employers interested in such arrangements may consider ways to balance scheduling flexibility with adequate staffing coverage.

4. Paid Time Off Policy

Paid time off (PTO) is one of the most popular employee benefits offerings. Sometimes employees need to take time away from work for personal obligations or to simply recharge. PTO is sometimes separate from vacation time, with different restrictions as to when it may be used. For that reason, employers may choose to adapt their PTO policies to reflect the realities of the COVID-19 pandemic; this may include expanding applicable reasons to request PTO, changing how PTO is accrued or adjusting how much PTO may be used within a certain period. 

5. Vacation Policy

After a year of being cooped up at home, employees may be yearning for vacations. However, if everyone decides to take off at once, that could be crippling to a business. For that reason, employers may wish to review their vacation policies (if separate from PTO policies) to ensure adequate operational coverage at all times.

6. Sick Leave Policy

As with vacation time and PTO, sick leave is another way for employees to take time away from work if they need it. However, this type of leave is subject to specific state and federal employment laws. For instance, during the COVID-19 pandemic, some employees were afforded guaranteed time away from work under specific circumstances. That’s why it’s important for employers to review their sick leave policies to ensure compliance with applicable federal and state laws; this includes continuing to monitor official guidance as it’s released.

7. Mask Policy

Mask-wearing has been a contentious topic during the COVID-19 pandemic. With more employees getting vaccinated, some businesses aren’t requiring that masks be worn by anyone—staff or customers. Other establishments are taking the opposite approach, even among vaccinated individuals. Deciding whether to require masks will come down to individual workplaces, but each decision will likely involve the following considerations:

·         Applicable state or federal laws

·         Federal/expert recommendations (nonbinding)

·         Employee attitudes

·         Density of COVID-19 cases in the area

·         Operational variables surrounding the organization

Additionally, employers with mask policies will need to consider to whom the policies apply (e.g., all staff and customers) and in which circumstances (e.g., when within 6 feet of another person).

8. Workplace COVID-19 Safeguards Policy

During the height of the COVID-19 pandemic, many workplaces adopted policies specifically aimed at reducing the spread of COVID-19. These included enforcing social distancing requirements, spacing out workstations, cleaning shared areas frequently and limiting building capacities. Even as the pandemic winds down, some employers may wish to continue these policies to provide enhanced safety and peace of mind to employees. In addition, some workplaces are introducing COVID-19 vaccination policies.

Conclusion

Each workplace is unique and its policies should reflect that uniqueness. When it comes to return to work, employers will need to think about how to adjust protocols to best fit their own situations. This doesn’t mean redrafting everything from scratch. Rather, employers should consider the current state of affairs (i.e., the COVID-19 factor) and adapt their policies accordingly.

Reach out to Better Business Planning, Inc. for additional workplace guidance. 

OSHA Updates Guidance for Mitigating and Preventing the Spread of COVID-19 in the Workplace

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance on mitigating and preventing the spread of COVID-19 in the workplace. The guidance now focuses on protections for unvaccinated and otherwise at-risk employees. OSHA’s update to the guidance reflects the U.S. Centers for Disease Control and Prevention (CDC) guidance for fully vaccinated people. This guidance emphasizes industries noted for prolonged close-contacts like meat processing, manufacturing, seafood, grocery and high-volume retail.

The original guidance issued on Jan. 29, 2021, provided requirements employers should take to implement a workplace COVID-19 prevention program and did not include information about the COVID-19 vaccine.

Updated Guidance

OSHA provides that most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace—or well-defined portions of a workplace—where all employees are fully vaccinated. The new guidance updates the roles of employers and workers in responding to COVID-19 for those that are at-risk or unvaccinated.

The guidance also provides an appendix with measures for high-risk workplaces with mixed-vaccination status workers. It provides that employers take additional steps for high-risk situations due to the following factors: close contact, duration of contact, type of contact and other distinctive factors.

Employer Next Steps

Employers should continue to take steps to protect at-risk or unvaccinated workers in their workplace. Employers can do this by implementing multilayered interventions to protect these workers and mitigate the spread of COVID-19.

To view the original article, go to http://www.bbp-dac.com/bbp/OSHAUpdatesGuidanceforMitigatingandPreventingtheSpreadofCOVID19intheWorkplace.pdf