The Washington Report
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May 19, 2021
Note to subscribers: Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline. Stay healthy and safe! ~The Washington Report team
Legislative
House Approves Pregnant Workers Fairness Act; Senate Passage Uncertain
On May 14, 2021, the House approved with a 315–101 vote the Pregnant Workers Fairness Act (H.R. 1065). The bill would prohibit employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. Specifically, the bill would declare that it is an unlawful employment practice to:
- Fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
- Require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- Deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
- Require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
The bill would also establish enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices. The White House released a Statement of Administration Policy on May 11, 2021, supporting the passage of H.R. 1065. The bill moves to the Senate, where passage is uncertain.
The full text of H.R. 1065 is available here.
The White House Statement of Administration Policy is available here.
Other HR/Employment
OSHA Instructs Employers to Refer to CDC Guidance for Fully Vaccinated Individuals
On May 17, 2021, the Occupational Safety and Health Administration (OSHA) updated its COVID-19 webpage with a statement indicating that employers should follow the new (May 13, 2021) Centers for Disease Control and Prevention (CDC) guidance “relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments.” The OSHA went on to state that it is “reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”
The OSHA announcement is available here.
The May 13, 2021, CDC guidance is available here.
Aon Publications
“A Plan’s Gotta Know Its Limitations”: HHS, IRS Announce 2022 Limits for OOP Costs, HSAs, and HDHPs
The Department of Health and Human Services (HHS) has published its annual Notice of Benefit and Payment Parameters under the Affordable Care Act (ACA), which, among various other provisions, sets the maximum annual amount of out-of-pocket (OOP) costs for plan participants. The final rule also established a special enrollment period for COBRA participants who experience a complete cessation of subsidized coverage.
Separately, the Internal Revenue Service (IRS) has announced the 2022 limits for individual health savings account (HSA) contributions, high-deductible health plan (HDHP) minimum deductibles, and HDHP OOP maximums, along with the excepted benefit health reimbursement arrangement limits for 2022.
The Aon bulletin is available here.
Biden Administration Reinstates ACA Discrimination Rules on Sexual Orientation and Gender Identity
Beginning May 10, 2021, HHS has reinstated the ACA’s Section 1557 prohibition against discrimination on the basis of sex to include discrimination on the basis of sexual orientation and gender identity.
HHS’s updated interpretation of Section 1557’s prohibition against discrimination on the basis of sex is consistent with last year’s Supreme Court ruling in Bostock v. Clayton County. In Bostock, the Supreme Court held that Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation and gender identity. HHS also noted that, since Bostock, two federal courts have held Title IX’s prohibition against sex discrimination, which is specifically referenced in Section 1557, must be read similarly. Section 1557 of the ACA prohibits individuals from being excluded from participation in, denied the benefits of, or subject to discrimination under any health programs or activities on the basis of race, color, national origin, sex, age, and disability.
The Aon bulletin is available here.