COVID-19 Update September 10, 2021

Yesterday, the Biden administration unveiled a new plan to combat the ongoing coronavirus pandemic in the United States.

A critical component of that plan calls on the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a new emergency temporary standard (ETS) to require employers with more than 100 employees to mandate that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week. They will also require all workers in healthcare settings that participate in Medicare or Medicare programs to be vaccinated. Going through OSHA circumvents any HIPPA issues.

Another item they are planning to put in place is to make sure that any teacher pay withheld by any governor for implementing a mask mandate or public safety measure will have their pay restored by the federal government at 100%. This is an obvious shot at the Florida Governor by the Biden Administration.

There are some new things coming out of the latest reconciliation bill that may affect employers. Here are a few items:

  • Establishing a national paid family and medical leave program: The House version of reconciliation contains a new federal entitlement program for paid family and medical leave. The proposed program would provide these benefits directly to individuals who need to take time off from work to care for themselves or their families. The proposal also would provide federal subsidies to employers that are willing to provide the same paid family and medical leave benefit to their employees, as well as to states (“legacy States”) that currently have a paid family and medical leave program in place.
  • Create a federal “auto-enroll retirement program” similar to state programs: The House version of reconciliation would require virtually all employers to maintain an automatic IRA arrangement, or a 401(k), 403(b) or SIMPLE IRA plan (collectively referred to as an “automatic contribution plan or arrangement” – an “ACPA”). To be an ACPA, an arrangement must be: (1) a 401(k), 403(b), or SIMPLE IRA plan that meets the ACPA requirements; (2) an automatic IRA meeting the automatic IRA requirements; or, (3) a qualified plan, 403(b) plan, SIMPLE, or SEP in existence on the date of enactment. The requirement is effective for 2023 for all employers. Existing plans, including existing Multi-employer plans (MEPs) and Pension Equity Plans (PEPs) are not subject to the auto-enroll provisions.

Additional reconciliation provisions which could impact the employers include: major increases in civil penalties under existing federal labor laws, as well as the incorporation of the PRO Act penalties (which has not been authorized and enacted by Congress); and a possible federal takeover of the unemployment insurance system. These new requirements are supposed to be raising all the OSHA fines by tenfold, or 10 times the current fines for any OSHA violations. In my opinion, this is a way to pay for many of these new mandates.


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