COVID-19 Update December 22, 2021

As another year comes to a close, we recommend finding time to reflect on 2021 and make the necessary adjustments and plans for improvement accordingly. Unfortunately, COVID-19 persists as a threat with the Omicron variant. Please remain vigilant and get vaccinated/boosted.

Today, the FDA authorized the first COVID-19 antiviral treatment pill, Pfizer’s Paxlovid drug. The oral drug, called Paxlovid will be prescribed for use in adults and children ages 12 and up with mild to moderate symptoms who are at risk for severe disease or hospitalization, the FDA said in a statement.

The Biden Administration’s vaccine mandate ruling continues going back and forth. Businesses with at least 100 employees will soon need to determine the COVID-19 vaccination status of their employees and develop a written vaccine-or-testing policy under a revived OSHA rule. The en banc ruling stated, among other things, that OSHA absolutely has the statutory authority to issue and enforce the ETS. Determining that there is a basis for the ETS, the court determined that the record demonstrated that COVID-19 has “continued to spread, mutate, kill, and block the safe return of American workers to their jobs” and that COVID-19 remains a “grave danger” to the workplace, causing death and long-term illness. OSHA, the court wrote, can and must be able to respond to dangers as they evolve. On Friday, OSHA issued a statement delaying implementation of the ETS until January 10, 2022. However, it’s headed to the Supreme Court, which could change things again if blocked.

In Louisiana, Gov. John Bel Edwards has extended the public health emergency order related to COVID-19, including a provision allowing all state government agencies to require mask-wearing. More than half of residents have been vaccinated, while 25% have received their booster. LDH reports a 60% increase in COVID-19 incidence when comparing last week’s and this week’s 7-day averages.

Below is some of the latest activity from state legislatures.

Federal Contractor Mandate Blocked in GA

As reported earlier in the week, a Georgia federal judge issued a nationwide injunction blocking the COVID-19 vaccine mandate for federal contractors from going into effect, ruling the Biden administration had likely exceeded its procurement authority.

NYC Paid COVID Child Leave

On November 23, 2021, the New York City Council passed a bill amending its Earned Safe and Sick Time Act requiring all private-sector employers to provide four hours of paid COVID child vaccination leave for each of their children, per vaccine injection, retroactive to November 2, 2021. This is in addition to the vaccination leave an employee is entitled to utilize under New York law for their own vaccine injections and is in addition to the employee’s accrual or use of existing safe/sick time.

NYC Vaccine Mandate

A vaccine mandate covering all private-sector workers in NYC will take effect on December 27, 2021. Like other mandates, it is likely to also anticipate that the mandate will be challenged in the courts. Mayor de Blasio announced that the mandate will apply to all in-person employees, and those employees will not have the option of getting regularly tested in lieu of vaccination. Employees must have at least one dose of the vaccine by December 27.

Kansas Passes COVID Vaccination Law

Governor Laura Kelly signed HB 2001, which requires employers that implement COVID-19 vaccine requirements to exempt any employee who submits a written waiver request stating that the requirement would:

• endanger the life or health of the employee or an individual residing with the employee, as evidenced by an accompanying written physician statement; or
• violate the employee’s sincerely held religious beliefs, including theistic and non-theistic moral and ethical beliefs.

AL Vaccination Exemption Appeal Process

AL recently signed into law SB 9, Governor Kay Ivey signs SB 9, which requires employers with vaccine mandates to:

• provide employees an opportunity and a form to request an exemption from the vaccine mandate based on religious or medical reasons;
• liberally construe an employee’s eligibility for an exemption in favor of the employee;
• allow an employee to appeal any denial of exemption within seven calendar days after the denial via the Vaccination Exemption Portal https://vaxexemption.alabama.gov;
• not terminate an employee who has been denied an exemption for at least seven days after the denial or, if an appeal was filed, until a final ruling has been issued in the employer’s favor.

FL Vaccine Mandate FAQs

Florida Department of Legal Affairs issues Notice of Emergency Rule and Private Employer Vaccine Mandate Program FAQs, which provide additional information and clarification regarding HB 1B which, among other things:

• • prohibits private employers, government entities, and educational institutions from imposing COVID-19 vaccination mandates;
  • allows all private employees to choose to be vaccinated or to claim an exemption for medical reasons (including pregnancy or anticipated pregnancy), religious reasons, COVID-19 immunity, or agreeing to periodic testing or use of employer-provided personal protective equipment; and
  • requires employers to pay the costs of COVID-19 testing and personal protective equipment for employees who claim vaccine exemptions.

Ninth Circuit Case on Joint Employer Interpreting CA Law

The Ninth Circuit Court of Appeals in California recently dismissed a temporary worker’s claim that her staffing firm’s client was also liable for alleged wage and hour violations. The temporary worker argued she was an employee of the client because she performed “road show” product demonstrations at the client’s warehouse locations.

One topic we have discussed heavily throughout the pandemic is cyber security. Delta has spent a lot of time and resources on our policies this past year. We have an agreement with our new outsourcing vendor that had completely revamped all our procedures and internal training for these attacks. It’s an ongoing training that tests all our employees randomly to make sure everyone is aware of all our procedures to keep all our data and systems safe. In addition, our main software vendor has implemented several new steps to keep all our data in the cloud secure and safe from predators. If you didn’t hear, Kronos was hacked a couple of weeks ago, and they are a major player in timekeeping and payroll in the world. This did not affect Delta as we do not use Kronos. Our safety team urges you to consider reviewing your cyber security measures – we are here if you have any questions.

The IRS has come out with guidelines for those of you that were trying to take advantage of the ERTC tax credit program for the 4^th quarter of 2021. The Infrastructure Investment and Jobs Act signed into law in November accelerated the end of the credit retroactive to Oct. 1, 2021—except for wages paid by a recovery startup business (RSB), for which the expiration date stayed unchanged as Jan. 1, 2022.

Speaking of the IRS, here is an editorial opinion on why the IRS is so far behind on helping the small businesses get these tax credits in a timely manner. We have been processing these requests for clients for the past 18 months and are still waiting on 2020 credits to be mailed out. Every time we call into the IRS, we either get on hold for several hours and then lose connection, or they say they will get back to us, and never do. We have been receiving letters that finally that they are opening our mail, and that we should get a response in the next 60-90 days.

Lastly, President Biden has extended the pause on federal student loan payments by another three months as the new variant causes a rapid surge in cases and hospitalizations. This takes the moratorium on payments, interest, and collections through May 1^st from January 31^st.