The Washington Report
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October 20, 2021
Health
EEOC Updates COVID-19 Vaccination Technical Assistance Guidance
On October 13, 2021, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers. “The availability of COVID-19 vaccinations raises questions under the federal equal employment opportunity (EEO) laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act, as amended, inter alia, by the Pregnancy Discrimination Act (Title VII) (see also Section J, EEO rights relating to pregnancy).”
The updated guidance is found in “Section K – Vaccinations” on the What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws web page. The updated Technical Assistance Questions and Answers address the following:
- K.1. Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated against COVID-19?
- K.3. How can employers encourage employees and their family members to be vaccinated against COVID-19 without violating the EEO laws, especially the ADA and GINA?
- K.4. Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?
- K.9. Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?
- K.13. Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?
- K.15. Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a health care provider that is not affiliated with their employer (such as from the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
- K.16. Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
- K.17. Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?
- K.18. Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?
The updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance is available here.
Retirement
PBGC Issues Technical Update on ERISA 4010 Filing Relief
On October 15, 2021, the Pension Benefit Guaranty Corporation (PBGC) issued Technical Update 21-1 which provides guidance on the effect of the American Rescue Plan Act (ARPA) on ERISA 4010 filing requirements. This Technical Update waives 4010 reporting requirements in situations where the reporting obligation is triggered solely because of a retroactive election permitted by ARPA and Internal Revenue Service (IRS) Notice 2021-48. It also provides guidance with respect to actuarial information reported in a 4010 filing that changes because of ARPA.
Technical Update 21-1 is available here.
IRS Notice 2021-48 is available here.
PBGC Announces 2022 Premium Rates for Single-Employer and Multiemployer Plans
On October 14, 2021, the PBGC announced the 2022 flat-rate premiums for single-employer and multiemployer plans. For the 2022 plan year, the per-participant flat-rate premium for single-employer plans is $88.00 (up from $86.00 in 2021) and $32.00 for multiemployer plans (up from $31.00 in 2021). For plan years beginning in 2022, the variable-rate premium (VRP) for single-employer plans is $48.00 per $1,000 of unfunded vested benefits, up from a 2021 rate of $46.00. For 2022, the VRP is capped at $598 times the number of participants (up from a 2021 cap of $582). Plans sponsored by small employers (generally fewer than 25 employees) may be subject to a lower cap.
For additional information on VRPs, as well as other current and historical data, please refer to the Premium Rate website.
The 2022 PBGC premium rates are available here.
EBSA Releases Guidance on a Fiduciary’s Role in Selecting ESG-Related Plan Investments and Exercising Shareholder Rights
On October 13, 2021, the Department of Labor’s Employee Benefits Security Administration (EBSA) released a proposed rule on amendments to the Investment Duties regulation under Title I of ERISA to address perceived confusion as to fiduciaries’ ability to consider environmental, social, and governance (ESG) factors involving plan investments and proxy voting. The proposed rules clarify the application of ERISA’s fiduciary duties of prudence and loyalty to selecting investments and investment courses of action, including selecting qualified default investment alternatives, exercising shareholder rights, such as proxy voting, and the use of written proxy voting policies and guidelines. According to EBSA, among other provisions, the proposal is meant to “empower plan fiduciaries to safeguard the savings of America’s workers by making it clear that fiduciaries may consider climate change and other environmental, social, and governance factors when they make investment decisions and when they exercise shareholder rights, including voting on shareholder resolutions and board nominations.” The proposed rules are subject to a 60-day comment period (from when they are published in the Federal Register) before they may be finalized. Thus, comments on the proposed rule are due by December 13, 2021.
On the same day of the release of the proposed rule, EBSA published a Fact Sheet. The Fact Sheet discusses the prior rules, the procedural background involving President Biden’s Executive Orders and the Department of Labor’s nonenforcement policy, and a general discussion of the proposed rules.
The proposed rule is available here.
The Fact Sheet is available here.
Other HR/Employment
SSA Releases 2022 Indexed Figures; Announces 5.9% Benefit Increase
The Social Security Administration (SSA) released the Social Security 2022 indexed figures on October 13, 2021. The SSA announced that there will be a 5.9% Cost-of-Living Adjustment (COLA) for 2022. Some other changes that take effect in January of each year are based on the increase in average wages. Relevant figures are shown below.
COLA: Based on the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, Social Security and Supplemental Security Income beneficiaries will receive a 5.9% COLA for 2022. (The 2021 COLA was 1.3%.)
Wage Base: The 2022 Social Security wage base is $147,000. (The 2021 amount was $142,800.)
FICA/Medicare Tax Rate: The FICA tax rate remains at 7.65%: 6.20% for Social Security and 1.45% for Medicare combined.
Beginning in 2013, the Affordable Care Act increased the Medicare tax rate on wages by 0.9% (from 1.45% to 2.35%) for higher-income individuals. The payroll tax increase applies to wages over $200,000 for single tax filers and $250,000 for couples filing jointly ($125,000 for a married individual filing separately). The tax rates above do not include the 0.9%. The Internal Revenue Service has provided frequently asked questions on the Medicare tax increase, available here.
Maximum Monthly Benefit: For someone retiring at full retirement age in 2022, the maximum monthly benefit is $3,345. (The 2021 amount was $3,148.)
Annual Earnings Test Limit: For individuals under full retirement age, the 2022 annual earnings test limit is $19,560. (The 2021 amount was $18,960.) For individuals attaining full retirement age in 2022, the annual earnings test limit for the months prior to attaining full retirement age is $51,960. (The 2021 amount was $50,520.) There is no annual earnings test for individuals who have attained full retirement age.
A more detailed Aon bulletin, SSA Releases 2022 Indexed Figures; Announces 5.9% Benefit Increase, is available in the Publications section of the newsletter.
More information on the SSA COLA is available here.
A Fact Sheet on the SSA's 2022 Social Security changes is available here.
The October 13, 2021, news release is available here.
Aon Publications
SSA Releases 2022 Indexed Figures; Announces 5.9% Benefit Increase
The Social Security Administration (SSA) released the Social Security 2022 indexed figures on October 13, 2021. The SSA announced that there will be a 5.9% Cost-of-Living Adjustment (COLA) for 2022. Some other changes that take effect in January of each year are based on the increase in average wages.
The Aon bulletin is available here.
HHS Again Renews COVID-19 Public Health Emergency Declaration
On October 15, 2021, the Secretary of Health and Human Services (HHS) Xavier Becerra again renewed the public health emergency (PHE) declaration. The renewal extends the PHE for another 90 days, effective October 18, 2021, although the Secretary has the right to terminate the declaration prior to its expiration date.
The Aon bulletin is available here.
Departments Issue Second Set of Rules on “No Surprises” Medical Billing
The Departments of Labor, Treasury, and Health and Human Services (the Departments) released the second set of interim final regulations (IFR Part II) implementing portions of the No Surprises Act (the Act), which was enacted as part of last year’s Consolidated Appropriations Act, 2021. The Act is designed to protect patients from large “surprise” medical bills incurred from emergencies, from air ambulance services, and from services and procedures that are performed by out-of-network providers at in-network facilities.
This Aon bulletin discusses the following provisions of IFR Part II relating to employer group health plans:
- The federal Independent Dispute Resolution (IDR) process that nonparticipating providers and facilities subject to the Act and group health plans may use if there is no resolution regarding fees after an open negotiation period;
- The time frames related to the IDR process, as well as fees; and
- Applicability of the external review process for participants to issues related to the Act.
The Aon bulletin is available here.