The Washington Report
November 10, 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.
Federal Court Temporarily Halts Enforcement of COVID-19 ETS
On November 6, 2021, the U.S. Federal Court of Appeals for the Fifth Circuit issued a stay temporarily halting enforcement of the COVID-19 Emergency Temporary Standard (ETS) vaccine requirement for employers with 100 or more employees. (Please note that the current environment is rapidly changing, so new developments may occur after our publication deadline.)
OSHA Releases New ETS on Mandatory Employer COVID-19 Vaccination Policy
On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new ETS on mandatory COVID-19 vaccinations. Under the new standard, released as an interim final rule, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS covers employers with 100 or more employees — firm or company-wide — and provides options for compliance. Among other provisions, the ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side-effects.
The new ETS became effective on November 5, 2021. Please refer to the ETS for specific compliance dates. Comments are due by December 6, 2021.
For additional information on the ETS, please see Biden Administration Releases Rules on Vaccinate-or-Test Mandate for Employers With at Least 100 Employees in the Publications section of this newsletter.
The OSHA news release is available here.
The ETS is available here.
CMS Issues Rule on Mandatory COVID-19 Vaccination for Health Care Workers
On the same day OSHA released its ETS on a mandated employer COVID-19 vaccination policy, the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued an emergency interim final rule requiring COVID-19 vaccination for health care workers. The interim final rule requires COVID-19 vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs. Facilities covered by this regulation must establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. All eligible staff must have received the necessary shots to be fully vaccinated — either two doses of Pfizer or Moderna or one dose of Johnson & Johnson — by January 4, 2022. The interim final rule also provides for exemptions based on recognized medical conditions or religious beliefs, observances, or practices. Facilities must develop a similar process or plan for permitting exemptions in alignment with federal law.
The interim final rule became effective on November 5, 2021. Please refer to the rule for specific provisions and implementation dates. Comments are due by January 4, 2022.
The CMS news release is available here.
The interim final rule is available here.
A list of frequently asked questions is available here.
IRS Releases 2022 Official Indexed Figures for Retirement Plans and Other Employee Benefit Plans; 401(k) Contribution Limit increases to $20,500 for 2022
The Internal Revenue Service (IRS) issued Information Release 2021-216 on November 4, 2021, providing the 2022 official indexed figures for retirement plans and other employee benefit plans. The IRS issued technical guidance detailing these items in Notice 2021-61. Following are the official limits of most interest to large and medium employers, as well as the official 2022 key employee pay thresholds for top-heavy plans.
- Section 402(g) annual dollar limit for pre-tax contributions to Section 401(k), 403(b), and 457 plans: $20,500 (up from 2021 limit of $19,500)
- Section 414(v) annual dollar limit on catch-up contributions for age 50 and over: $6,500 (unchanged from 2021 limit)
- Section 414(q) pay threshold for highly compensated employees: $135,000 (up from 2021 limit of $130,000)
- Section 415 limit for defined benefit plans: $245,000 (up from 2021 limit of $230,000)
- Section 415 limit for defined contribution plans: $61,000 (up from 2021 limit of $58,000)
- Section 401(a)(17) recognizable pay limit: $305,000 (up from 2021 limit of $290,000)
- Section 416 pay threshold for key employees in a top-heavy plan: $200,000 (up from 2021 limit of $185,000)
IRS Information Release 2021-216 is available here.
IRS Notice 2021-61 is available here.
For additional information on the indexed figures, please see IRS 2022 Official Indexed Figures for Retirement Plans and Other Employee Benefit Plans in the Publications section of this newsletter.
Biden Administration Releases Rules on Vaccinate-or-Test Mandate for Employers With at Least 100 Employees
Employers with 100 or more employees have until January 4, 2022, to develop and implement policies requiring their employees either to be vaccinated against COVID-19 or submit to mandatory masking and weekly testing for COVID-19, under an Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration.
The ETS provides that employers may impose either a mandatory vaccination policy or a policy giving employees the choice of either vaccination or weekly testing and mandatory masking. Employers that adopt the latter policy do not have to pay the costs of weekly testing for employees. However, the ETS imposes numerous record-keeping and documentation requirements on employers, sets out rules on providing paid time off for employees to become vaccinated and recover from any side-effects, and subjects employers that fail to comply with the ETS to possible fines of up to $13,653 per violation.
This Aon bulletin discusses:
- Determining Covered Employers and Employees
- Implementing Mandatory Vaccination and Vaccination-or-Testing/Masking Policies
- Determining an Employee’s Vaccination Status—Proof, Records, and Acceptable Vaccines
- Paid Time Off for Vaccinations and Vaccine Side-Effects
- Testing Employees Under a Vaccination-or-Testing/Masking Policy
- Providing Policy Information to Employees
- Preemption, State Plans, and Additional Employer Measures
- Effective Dates
The Aon bulletin is available here.
IRS 2022 Official Indexed Figures for Retirement Plans and Other Employee Benefit Plans
The Internal Revenue Service (IRS) issued Information Release 2021-216 on November 4, 2021, providing the 2022 official indexed figures for retirement plans and other employee benefit plans. The IRS issued technical guidance detailing these items in Notice 2021-61.
The Aon bulletin, which provides the official limits of most interest to large and medium employers, as well as the official 2022 key employee pay thresholds for top-heavy plans, is available here.
Does USERRA Require Paid Military Leave? Some Federal Courts Seem to Think So
Two U.S. Courts of Appeal have ruled that the Uniformed Services Employment and Reemployment Rights Act (USERRA) may require employers to provide paid leave to employees who are absent from work due to protected military leave, despite the absence of any provision in USERRA that specifically requires employers to provide such paid leave. These federal courts, which cover Illinois, Indiana, Wisconsin, Pennsylvania, New Jersey, Delaware, and the Virgin Islands, have held that USERRA’s mandate that military leave be accorded the same “rights and benefits” as comparable nonmilitary leave may require an employer to provide paid military leave to the same extent that it provides paid leave for other absences, such as jury duty and sick leave.
This Aon bulletin discusses:
- The background on USERRA’s obligations relating to military leave;
- The recent USERRA litigation;
- Determining whether USERRA leave is comparable to other types of leave; and
- What employers should do now.
The bulletin is available here.
Now Available: Legal Consulting & Compliance Quarterly Update
The Retirement Legal Consulting & Compliance practice is pleased to present its Quarterly Update of recent legal developments for the fourth quarter of 2021. In this issue you will find the following articles:
- Momentum Continues in the Pension Risk Transfer Market
- PEPs Are Here!
- Cybersecurity: Third-Party Service Providers Prepare to Respond
- Updated IRS Program Improves Self-Correction Options
- Possible New Life for Stranded VEBA Assets
- Investment in CITs Possible for Certain 403(b) Church Plans
- Quarterly Roundup of Other New Developments
The fourth quarter 2021 issue of the Retirement Legal Consulting & Compliance Quarterly Update is available here.
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