On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.

In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.

Continue Reading Supreme Court Blocks Large-Employer Vaccine Rule and Allows Healthcare Vaccine Rule to Proceed

On January 6, 2022, the Tax Exempt and Government Entities (“TEGE”) division of the Internal Revenue Service released its Fiscal Year 2021 Accomplishments Letter (the “Letter”). Among other responsibilities, TEGE through its Employee Plans division has jurisdiction over tax issues involving retirement plans.  The United States Department of Labor shares jurisdiction and focuses on enforcement of the ERISA, the other primary law impacting benefit plans.  As the name suggests, the Letter described the accomplishments and results of various IRS compliance initiatives during the period October 1, 2020 to September 30, 2021.

Continue Reading IRS 2021 Accomplishments Letter Shows Retirement Plan Audit Activity Continues

On January 7, 2022, the U.S. Supreme Court will hear arguments on the federal vaccine mandates for employers with 100 or more employees and for healthcare facilities receiving federal funds.  The Court has ordered additional briefing on the issues and has set one hour for oral argument.

The Occupational Safety and Health Administration (“OSHA”) released its “COVID-19 Vaccination and Testing: Emergency Temporary Standard,” 86 Fed. Reg. 61,402 (the “ETS”) on November 5, 2021. The ETS mandates private employers with 100 or more employees to adopt a policy that requires employees to be fully vaccinated against COVID-19 or submit to weekly testing and mask wearing requirements.  With the litigation challenges and the timing of recent court decisions, employers now must comply with most of the ETS requirements by January 10, 2022 and the testing requirements by February 9, 2022.  McLane Middleton’s webinar on the ETS shortly after it was issued is found here.

Legal challenges to the ETS and OSHA’s authority to issue such emergency rules followed.  The Fifth Circuit Court of Appeals had originally stayed the enforcement of the ETS on an emergency basis on November 6, 2021 and then reaffirmed its decision on November 12, 2021 in a 22-page decision.  The federal court’s stay effectively blocked OSHA’s rule on a temporary basis.  My colleague’s blog post on the stay issued by the Fifth Circuit is found here.

In light of the multiple legal challenges to the ETS being brought across the country, a federal Judicial Panel on Multidistrict Litigation designated the Sixth Circuit Court of Appeals to hear the consolidated cases. OSHA filed a motion to dissolve the Fifth Circuit’s stay.  On December 17, 2021, the Sixth Circuit lifted the temporary stay and granted the government’s motion to dissolve the stay of the ETS.

The Sixth Circuit’s decision was directly appealed to the U.S. Supreme Court.  An application for stay was presented to Justice Kavanaugh and referred by him to the Court for oral argument.  At issue on appeal is OSHA’s authority to command a vaccine-and-testing regime on large, private employers.  According to information provided by the Court, an application is usually addressed to a single Justice assigned to the specific circuit or circuits, and the Justice may then decide the application or refer it to the full Court for consideration.  Five Justices must agree on an application if it is before the full Court.

In addition to OSHA issuing the ETS, the Centers for Medicare & Medicaid Services (“CMS”) issued a COVID-19 vaccination mandate for eligible staff at health care facilities that participate in the Medicare and Medicaid programs.  Following legal challenges, an application for stay was presented to Justice Alito of the U.S. Supreme Court and referred by him to the Court for oral argument.  Authority of the Secretary of Health and Human Services to mandate a vaccination requirement is at issue on appeal.

The Court consolidated the above applications and a total of one hour has been allotted for oral argument on Friday, January 7, 2022.  Additional briefing on the applications is due to the Court by 4:00 P.M. on December 30, 2021 and replies by January 3, 2022.

After the Sixth Circuit’s lifting of the stay, OSHA reported that it will “once again implement” the ETS and advised that it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Accordingly, with the stay lifted on the ETS requirements, private employers who had started preparing for the ETS may want to consider taking steps to continue their planning processes to meet those mandates.   Even with the emergency applications and the expedited hearing schedule, the Court will not hear oral arguments by the parties until January 7, 2022, only three days before OSHA indicated it will begin to take enforcement action.  As noted above, OSHA will look for “reasonable, good faith efforts” at compliance by employers.

On December 14, 2021, the EEOC updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on how the definition of disability applies to COVID-19.  The section includes helpful Q and A addressing when COVID-19 becomes an actual disability.

Continue Reading EEOC Updates Guidance To Address Whether COVID-19 Is a Disability

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the Occupation Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to adopt a policy either (a) mandating the COVID-19 vaccine for all employees or (b) mandating employees to show proof of vaccination status or submit to weekly testing.  Within hours, the decision was appealed to the United States Supreme Court.  That same night, OSHA issued a statement advising employers that, now that the stay has been lifted, it will allow a brief extension of the deadlines established in the initial ETS.  Covered employers must now comply with the provisions of the ETS by January 10, 2022.  If an employer opts to permit employees to undergo weekly testing in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.

Continue Reading Sixth Circuit Dissolves Stay of OSHA ETS; OSHA Immediately Posts New Compliance Deadlines

As we enter the winter holiday season, many employers begin to contemplate paying year-end bonuses to employees.  It is a nice gesture of appreciation for work performed throughout the year and welcomed by employees.  However, the payment of bonuses continues to be an area where many employers fail to comply with the Fair Labor Standards Act (“FLSA”).  At a recent employment law webinar, the Regional Director for the Wage and Hour Division of the US Department of Labor underscored the ongoing compliance problem with employers failing to calculate the correct overtime rate.  The typical problem occurs in the calculation of the “regular rate of pay” for overtime hours worked.

Continue Reading Year End Bonuses and The Fair Labor Standards Act

The Centers for Medicare and Medicaid Services (“CMS”) issued a nationwide suspension of its vaccine mandate for health care workers.  CMS’s decision comes after two District Courts issued preliminary injunctions pausing implementation of the rule.

On December 2, 2021, CMS announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers…while there are court-ordered injunctions in place prohibiting enforcement of this provision.”

Continue Reading Update: Nationwide Suspension of CMS Vaccine Mandate for Healthcare Workers

On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021.  This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”  Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only.  The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state.  Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”

Continue Reading Enforcement of Federal Contractor Vaccine Mandate Halted Nationwide

The Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate is, for the time being, not enforceable in New Hampshire and nine other states. On Monday, November 29, 2021, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction blocking the mandate.

What is the CMS Mandate?

The CMS vaccine mandate requires that select healthcare workers at facilities receiving Medicare and or Medicaid funding be fully vaccinated by January 4, 2022.

Continue Reading CMS Vaccine Mandate Halted in New Hampshire

Another year, another list.  I doubt anyone expected at the end of 2020 to still be talking about social distancing, mask wearing, and virtual holiday gatherings. Yet, here we are. In preparing to write this post, I thought about what we have written in the past about making resolutions, plans for new initiatives, and reinvigorating compliance efforts.  This year, my list of  to do’s looks a bit different than in years past. To be sure, some old favorites are back, but I challenge us all to think a bit bigger and a good way beyond our usual list of projects.  The times demand it.  So hit ground running in 2022, HR Pros, and try on some of the following!

Continue Reading Closing Out Another Year and Looking Forward to 2022!