The Washington Report
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December 8, 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.
Executive
President Signs Legislation Funding Government Through February 18, 2022
On December 3, 2021, President Biden signed into law a stopgap funding measure (H.R. 6119) that funds various government operations and agencies through February 18, 2022. The Senate and House both approved the legislation on December 2.
The full text of H.R. 6119 is available here.
COVID-19
President Announces COVID-19 Winter Plan With Required Health Plan Reimbursements of At-Home Covid-19 Diagnostic Tests
On December 2, 2021, President Biden announced a COVID-19 Winter Plan with new actions to combat COVID-19, including Omicron, its new variant. Included in the COVID-19 Winter Plan is a requirement that health plans reimburse the cost of at-home COVID-19 diagnostic tests. According to the Fact Sheet, the Departments of Health and Human Services, Labor, and the Treasury will issue guidance by January 15, 2022, to clarify that individuals who purchase over-the-counter COVID-19 diagnostic tests will be able to apply for reimbursement from their group health plan or health insurance issuer and have their testing costs covered during the public health emergency.
In addition, the President called on employers to provide paid time off for their employees to get boosters and paid time off for employees’ family members to get booster shots (and the first and second shots) and to move forward with requiring workers to get vaccinated or tested weekly.
The Fact Sheet, “President Biden Announces New Actions to Protect Americans Against the Delta and Omicron Variants as We Battle COVID-19 this Winter,” is available here.
Courts Block COVID-19 Vaccine Mandate for Federal Contractors and Health Care Workers
Several federal district courts have recently issued stays halting the COVID-19 vaccine mandate for health care workers and federal contractors. In response, the White House has asked the court(s) to allow the mandate to take effect while appealing the decision(s). For additional information, please see the Aon bulletin, Frozen III! Third Federal Mandate on Ice as District Court Blocks Vaccination Mandate for Federal Contractors, found in the Publications section of the newsletter.
Please note that information and litigation on this topic is changing rapidly. Readers should always refer to the various government agencies/resources for the latest developments.
OSHA Extends Comment Period on COVID-19 ETS to January 19, 2022
On November 30, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) announced it extended the comment period for the COVID-19 vaccination and testing emergency temporary standard (ETS) to January 19, 2022. OSHA extended the comment period by 45 days to “allow stakeholders additional time to review the ETS and collect information and data necessary for comment.” Please refer to the December 3, 2021, Federal Register posting for additional details.
On November 5, 2021, OSHA issued the ETS, which covers employers with 100 or more employees. Under the new mandate, 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 is currently being challenged in the court system, as noted in this newsletter.
The news release is available here.
The extension announcement in the December 3, 2021, Federal Register, is available here.
Other HR/Employment
IRS Releases Guidance on Retroactive Termination of the Employee Retention Credit
On December 6, 2021, the Internal Revenue Service (IRS) issued guidance (Notice 2021-65) for employers regarding the retroactive termination of the Employee Retention Credit. The Infrastructure Investment and Jobs Act, enacted on November 15, 2021, amended the law so that the Employee Retention Credit applies only to wages paid before October 1, 2021, unless the employer is a recovery startup business. Notice 2021-65 applies to employers that paid wages after September 30, 2021, and received an advance payment of the Employee Retention Credit for those wages or reduced employment tax deposits in anticipation of the credit for the fourth quarter of 2021 but are now ineligible for the credit due to the change in the law. The Notice also provides guidance regarding how the rules apply to recovery startup businesses during the fourth quarter of 2021.
The news release is available here.
IRS Notice 2021-65 is available here.
EEOC Releases Latest Edition of Federal Sector EEO Digest
On December 2, 2021, the Equal Employment Opportunity Commission (EEOC) released the latest edition of the federal sector Digest of Equal Employment Opportunity Law (EEO Digest). The EEO Digest, a quarterly publication prepared by the EEOC’s Office of Federal Operations, features a wide variety of recent EEOC decisions and federal court cases. This edition contains summaries of noteworthy decisions issued by the EEOC, including cases involving attorney’s fees, class certification, compensatory damages, and dismissals. It also includes cases discussing findings on the merits, remedies, sanctions, settlement agreements, stating a claim, summary judgment, and timeliness.
The news release is available here.
The latest EEO Digest, including key federal sector court decisions, is available here.
Aon Publications
Frozen III! Third Federal Mandate on Ice as District Court Blocks Vaccination Mandate for Federal Contractors
A U.S. Federal District Court in Georgia has issued a nationwide injunction blocking the Biden Administration from enforcing its COVID-19 vaccine mandate for federal contractors.
With this decision, federal courts have now blocked all three vaccine mandates issued by the federal government from going into effect pending resolution of the various court cases, which could ultimately make their way to the United States Supreme Court.
The Aon bulletin is available here.
Transparency Becomes Clearer: Departments Issue Regulations for Reporting Prescription Drug and Health Care Spending
Employers that sponsor self-insured group health plans and health insurance issuers for fully insured plans will have to report information for prescription drug benefits and health care spending no later than December 27, 2022, for the 2020 and 2021 calendar years. After December 27, 2022, an annual file must be submitted by June 1 for the prior calendar year.
The Departments of Labor, Treasury, and Health and Human Services (the Departments) posted interim final regulations with request for comments in the Federal Register on November 23, 2021, primarily related to the prescription drug file requirement under the Consolidated Appropriations Act, 2021. The purpose of this guidance is to enhance transparency on how prescription drugs contribute to the cost of health coverage. Comments must be submitted to the Departments no later than January 24, 2022.
The Aon bulletin is available here.