COVID-19 Update December 1, 2021

Yesterday, the United States’ first confirmed case of the Omicron coronavirus variant was identified in California. The individual had traveled to South Africa, has not yet received the booster, and has placed themselves in self-quarantine.

The Biden Administration recently put in place a vaccine mandate for all federal employees and contractors along with private employers with more than 100 employees. Biden plans to discuss the U.S. strategy for fighting COVID-19 this winter today (Thursday) and the public transit mask extension through March 18 is expected to be part of his remarks.

On November 12^th, the 5^th circuit court of appeals based out of New Orleans issued a permanent injunction against the OSHA ETS to make sure it’s constitutional. This was opposed by other circuits around the country. Any lawsuits that have opposing positions by different circuits are put into a lottery. On Tuesday, November 16, the Judicial Panel on Multidistrict Litigation assigned the cases on the OSHA ETS to the 6^th Circuit Court of Appeals. NAPEO member Fisher Philips wrote an excellent overview on what this assignment might mean for the ETS, and the next steps in the judicial process. On Wednesday, November 17, OSHA announced on its website that the agency has suspended enforcement of the ETS.

Both House and Senate Republicans have introduced a motion of disapproval under the Congressional Review Act (CRA) for the OSHA Emergency Temporary Standard. The CRA allows Congress to nullify executive branch regulations by a simple majority vote in both Houses of Congress – provided the President signs the motion of disapproval (which will not happen in this case). Almost every Republican in Congress has co-sponsored these bills.

Several states have passed legislation in the meanwhile on how they are moving forward with the mandate. A ruling by U.S. District Judge Matthew Schelp in St. Louis prevents CMS from enforcing its vaccine mandate for healthcare workers until the court can hear legal challenges brought by the 10 states (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire), finding the agency that issued the rule mandating healthcare workers get vaccinated against the Coronavirus likely exceeded its authority. The rule requires health facilities to mandate all employees, volunteers and contractors have a first vaccine dose by Dec. 6 and to be fully vaccinated by Jan. 4. Providers that fail to comply could lose access to Medicare and Medicaid funds.

Many employers are confused about how to move forward as courts consider legal challenges to various federal and state directives. Plus, as employers revise their vaccination policies, they may be wondering if they should require workers to get the booster to be considered “fully vaccinated.” In-house legal departments are facing a big challenge: finessing company vaccine-exemption policies to strike the right balance between keeping workforces safe and minimizing exposure to litigation.

In case you missed it, the President signed the infrastructure bill which contains a provision that ends the Employee Retention Tax Credit (ERTC) at the end of the third quarter of 2021, one quarter earlier than under prior law. Employers may continue to claim the ERTC for Q1-Q3 2021 if they are eligible. The amendments made by the infrastructure bill only affect the ERTC with respect to Q4 2021. Most employers should not claim any ERTC on Form 941 for Q4 2021, with one exception for a “recovery startup business.” Employers that meet this definition could still claim the ERTC for Q4 2021 (if otherwise eligible). The IRS has recently released some guidance on how the employee retention credits should be applied for. If you have not taken advantage of this for either 2020 or 2021, the time is running out on applying for these credits. If anyone has any questions about eligibility or any deadlines, please reach out.

On November 19, the U.S. House of Representatives passed the Build Back Better Act, supported by the Biden administration and congressional Democrats.

The act, a multitrillion-dollar social spending and climate change bill, faces an uncertain future in the U.S. Senate. The bill would be funded, in large measure, through a series of tax increases—including a new 15 percent minimum tax on large U.S.-based corporations and new surcharges on high-income taxpayers.

The BBBA contains several provisions affecting employer-sponsored benefits. Two of the most important—a new paid leave program and modification of the “firewall” that has prevented

employees from receiving premium tax credits to subsidize buying health plans on the Affordable Care Act (ACA) marketplace—are highlighted below, along with other provisions affecting retirement savings plans and new penalties for labor law violations.

Of interest to PEO’s, the BBBA contains a universal paid family leave provision and an increase of OSHA fines from $13,000 to $130,000 per instance for serious/failure to abate citations and from $130,000 to $700,000 per instance for willful and repeat violation citations. It is very important to keep in mind that the Senate will likely make changes to the reconciliation bill. With the Democrats only having 50 Senators, any one Senator can hold up the bill with their personal demands.  The plan is for the Senate to consider and pass their version of reconciliation before Congress recesses for the Christmas holiday.

Lastly, the DOL has come out with the final tipped employee sharing rules. If you are a business that shares tips you need to be aware of this and make sure you’re legal under the new guidelines.