In February 2022, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) issued FAQs to provide more guidance on the Federal Independent Dispute Resolution (IDR) Process under the No Surprises Act (NSA), enacted as part of the Consolidated Appropriations Act, 2021 (CAA).
These FAQs address:
The Departments previously issued guidance on the Federal IDR Process in the form of a Process Guide. This guide provides information for certified IDR entities on various aspects of the Federal IDR Process. It includes information on how the parties to a payment dispute may initiate the Federal IDR Process, as well as the requirements of the Federal IDR Process, including the requirements that certified IDR entities must follow in making a payment determination.
On Jan. 25, 2022, OSHA provided notice that it is withdrawing its COVID-19 vaccination and weekly testing emergency temporary standard (ETS). The withdrawal will be effective once the notice is published in the Federal Register. The expected publication date is Jan. 26, 2022.
The ETS was adopted to protect unvaccinated employees working for employers with 100 or more employees from the risk of contracting COVID-19. This ETS required employers to adopt either a mandatory vaccination policy or a weekly testing and face-covering policy for all employees. When the ETS was published, OSHA also stated it was using the ETS as a proposed rule. OSHA is required by federal law to publish and accept public commentary on proposed rules before promulgating a new permanent occupational safety and health standard.
On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) stayed the vaccination and testing ETS. Because of this ruling, OSHA is withdrawing the ETS as an enforceable ETS. However, the agency is not withdrawing the ETS as a proposed permanent rule, and the standard rule-making process will continue.
Impact on State Plans and Employers
States with OSHA-approved plans must implement and enforce workplace standards that are at least as effective as federal standards. However, since there are no new federal vaccination or testing requirements at this time, state plans are not required to take any action.
Similarly, employers are not required to comply with OSHA’s ETS at this time. However, employers are still expected to provide a safe and healthy workplace for their employees and follow other existing OSHA COVID-19 guidance. Employers should also monitor OSHA communications for information about the possible permanent standard.
Many human resources (HR) functions were quickly reimagined in 2021 due to the COVID-19 pandemic, and HR professionals should continue to expect new challenges in 2022. Here are five HR trends to monitor this upcoming year:
1. Hybrid Workplace Sustainability
Most workplace leaders expect that at least some of their employees will work remotely after the pandemic. As such, many employers will factor in hybrid work when creating or updating workplace policies and processes.
2. Attraction and Retention Amid Labor Shortages
The current labor shortage has been an obstacle for most employers and is likely to continue into the new year. Generally, employees are seeking opportunities that offer better compensation, benefits and flexible work arrangements.
3. Investments in HR Technology
In 2022, many employers will integrate technology into more HR processes or build upon their existing practices. Technologies are being used to create efficiencies and improve processes, such as recruitment, onboarding, and learning and development.
4. Growing Demand for New Skillsets
Desired skillsets vary by organization and industry, but many employers are pursuing high-level digital and communications skills for potential and current employees.
5. Employee Health and Well-being
Employee health and well-being will remain a top concern and priority for both employers and employees. Caregiving, mental health and adjusting to remote work will likely remain top challenges.
As the pandemic evolves, employers will need to innovate and stay on top of trends to meet the needs of employees. Reach out to us today for resources on these topics and other workplace trends.
On Nov. 12, 2021, the 5th Circuit Court of Appeals (the Court) extended the preliminary stay it ordered for the Occupational Safety and Health Administration (OSHA) vaccine and testing emergency temporary standard (ETS) on Nov. 6, 2021. The judicial stay will remain in effect until the ETS’ legality is ultimately decided in the judicial system.
The Court granted the petitioners’ original request for a stay because it found cause to believe there are grave statutory and constitutional issues with the ETS. Both OSHA and parties challenging the ETS in court submitted responses to this legal challenge on Nov. 8, 2021, and Nov. 9, 2021, respectively.
Extending the Stay
After initial review, the Court found that the petitioners’ challenges merit a stay until the validity of OSHA’s ETS is determined. The Court found:
Challenges to the OSHA ETS have also been filed in other federal court of appeals circuits. All challenges to the ETS are due by Nov. 16, 2021, in all circuit courts. On Nov. 16, 2021, all lawsuits filed challenging the ETS were consolidated for review in the 6th Circuit Court of Appeals.
Impact on Employers
As a result of this stay, OSHA has suspended implementation and enforcement of the ETS pending future developments in the litigation. This situation is fluid and additional action by the courts is expected. Employers may wish to become familiar with the ETS requirements and should monitor related legal developments in the event future compliance is required.
Recently, the White House directed the Occupational Safety and Health Administration (OSHA) to draft an emergency temporary standard (ETS) for private employers. Soon, employers with 100 or more employees (likely measured companywide, not by location) will need to adapt their vaccine policies and enforce one of the following:
All aspects of this upcoming rule are subject to modification until OSHA publishes the rule. The ETS is expected to come in the weeks ahead; however, an actual release date is uncertain. Once an ETS is issued, it can only remain in effect for six months before a permanent standard must replace it.
What Employers Can Do Now
Here are some actions employers can consider to prepare for the mandate:
On Sept. 9, 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) is developing an emergency temporary standard (ETS). The new ETS will require private-sector employers with 100 or more employees to ensure their workforce is fully vaccinated or test negative for COVID-19 every week before coming to work.
This announcement follows the vaccination, masking and social distancing requirements issued by the president in July for the public sector—federal employees and on-site contractors.
There currently is no time frame as to when the new ETS will be released. The government estimates that the ETS will impact over 80 million private-sector workers.
Current OSHA ETS
OSHA currently has a COVID-19 ETS for the health care and health care support workers. This ETS covers hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed COVID-19 patients are treated.
OSHA has also issued guidance to help employers and workers not covered by the health care ETS. This guidance is to help employers protect workers who are unvaccinated, otherwise at-risk, or fully vaccinated but in areas of substantial or high community transmission.
Employers should continue to protect at-risk, unvaccinated and fully vaccinated workers. Employers should also monitor OSHA communication channels to become familiar with the expected private sector ETS once it is published.
On Aug. 16, 2021, the Departments of Health and Human Services (HHS), Labor (DOL) and the Treasury (Departments) issued a frequently asked question (FAQ) regarding enforcement of the contraceptive coverage mandate under the Affordable Care Act (ACA).
This FAQ indicates that the Departments intend to amend existing religious and moral exemptions to the contraceptive coverage mandate in light of recent litigation.
The ACA requires non-grandfathered health plans to cover certain women’s preventive health services without cost sharing, including all FDA-approved contraceptives.
Religious exemptions apply to certain churches, houses of worship, and other church-affiliated institutions, allowing them to choose not to contract, arrange, pay or refer for any contraceptive coverage.
On Nov. 15, 2018, the Departments published final regulations that expanded the exemptions and accommodations to the contraceptive mandate to apply to any entities with religious or moral objections to the contraceptive coverage requirement.
On July 8, 2020, the U.S. Supreme Court upheld these regulations as a valid exercise of power under the Trump administration.
The FAQ indicates that the Departments intend to issue regulations within six months to amend the 2018 final regulations. The FAQ does not provide any additional detail or specify the types of changes that may be made.
The American economy is finally recovering after more than a year of stagnation due to the COVID-19 pandemic. President Joe Biden’s administration wants to continue this momentum and further stimulate the economy. To help in that effort, President Biden recently signed an executive order aimed at increasing competition among businesses.
According to the White House, the order was designed to “promote competition in the American economy, which will lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.”
The Biden administration notes that corporate consolidation has been accelerating for many years, leaving the majority of industries in the hands of only a few entities. The administration points to this trend as the main reason for slow wage growth and rising consumer prices. This latest executive order intends to reverse these effects.
All in all, the executive order includes 72 initiatives by more than a dozen federal agencies to help address competition inequality.
Health Care Impact
The executive order addresses competition in health care in four main areas:
The executive order broadly addresses competition inequalities across market sectors, with a significant focus on health care. These proposed initiatives have the potential to help individuals and small businesses alike. However, it remains to be seen how all of these initiatives will play out, as executive orders are essentially a directive to federal agencies to revise their regulations. Employers should continue to monitor exactly how the executive order plays out.
On June 17, 2021, the U.S. Supreme Court rejected a lawsuit challenging the constitutionality of the Affordable Care Act’s (ACA) individual mandate in a 7-2 ruling.
This lawsuit was filed in 2018 by 18 states as a result of the 2017 tax reform law that eliminates the individual mandate penalty. In 2012, the U.S. Supreme Court upheld the ACA on the basis that the individual mandate is a valid tax. With the penalty’s elimination, the appeals court in this case determined that the individual mandate is no longer valid under the U.S. Constitution.
Supreme Court’s Ruling
The Supreme Court determined that the plaintiffs in this case did not have standing to sue, meaning that they have not shown that they suffered any injury as a result of the elimination of the individual mandate penalty and, therefore, do not have a legal right to sue. As a result, the ACA as it exists today will remain in place.
According to the Court, allowing a lawsuit "attack[ing] an unenforceable statutory provision [to continue] would allow a federal court to issue what would amount to 'an advisory opinion without the possibility of any judicial relief.'"
The Court did not make any determinations on any other issue in the case, including the validity of the individual mandate or whether the rest of the ACA can be severed from the individual mandate provision. However, this case is now concluded and the ACA will remain in place.
On May 10, 2021, the Internal Revenue Service (IRS) released guidance on the taxability of dependent care assistance programs (DCAPs) for 2021 and 2022, clarifying that amounts attributable to previously issued carryover and extended grace period relief generally are not taxable.
Specifically, if these dependent care benefits would have been excluded from income if used during taxable year 2020 (or 2021, if applicable), these benefits will remain excludible from gross income and are not considered wages of the employee for 2021 and 2022. They will also generally not be taken into account for purposes of applying the exclusion limits of Internal Revenue Code Section 129.
IRS Notice 2021-26 clarifies the interaction of this standard with the one-year increase in the exclusion for employer-provided dependent care benefits from $5,000 to $10,500 for the 2021 taxable year under the American Rescue Plan Act:
FACTS: Employee elects to contribute $5,000 for DCAP benefits for the 2020 plan year but incurs no dependent care expenses during that plan year. The employer amends its plan to allow the employee to carry over the unused $5,000 of DCAP benefits to the 2021 plan year. The employee elects to contribute $10,500 for DCAP benefits for the 2021 plan year, incurs $15,500 in dependent care expenses for that plan year, and is reimbursed $15,500 by the DCAP.
CONCLUSION: The $15,500 is excluded from the employee’s gross income and wages because $10,500 is excluded as 2021 benefits and the remaining $5,000 is attributable to a carryover permitted by the previously issued coronavirus-related relief.
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