EMPLOYMENT LAW UPDATE

Who knew vaccine requirements could be so much fun?

By Mike O’Brien

 As you might recall, in one of our previous updates we cautioned that implementing workplace-vaccination requirements could be a bit tricky. It turns out, we were right—just ask the federal government.
On Nov. 5, the Centers for Medicare & Medicaid Services (CMS) issued an Interim Final Rule regulating healthcare facilities (“Vaccination IFR”). The Vaccination IFR—which applies to most (but not all) healthcare facilities subject to CMS’s health and safety requirements—obliges covered businesses to develop and implement policies to

(1) ensure that all staff is fully vaccinated against COVID-19;

(2) track employee vaccination status, including boosters; and

(3) grant and track vaccination exemptions, including those based on applicable federal law (e.g., the ADA and Title VII of the Civil Rights Act), or recognized clinical contraindications to COVID-19 vaccines (click here to see information from the CDC regarding contraindications).

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The Vaccination IFR can be found here. You can read more about the Vaccination IFR, as well as OSHA’s Emergency Temporary Standard for healthcare settings (“Healthcare ETS”) (which imposes numerous COVID-related obligations on healthcare facilities) here. Let’s not forget that the federal government has also mandated vaccinations for federal contractors (you can read more on that here).

And, as we reported earlier, OSHA recently issued its Emergency Temporary Standard on COVID-19 Vaccination and Testing (“Vaccination ETS”) (you can read it here), which directs employers with 100 or more employees to require their employees to get vaccinated or undergo weekly testing.
All of these vaccine-related regulations have set up a bit of a showdown between the federal government and . . . lots of groups—including several states. In a recent ruling the Fifth Circuit Court of Appeals stayed OSHA’s Vaccination ETS, finding that the regulation is “overinclusive . . . and underinclusive,” and “grossly exceeds OSHA’s statutory authority.” That decision is itself subject to further judicial review, which likely will end up before the U.S. Supreme Court. You can read the Fifth Circuit’s full ruling here, and read more on the story here. Several states, including Utah, have also filed suit against the Biden administration over CMS’s Vaccination IFR. You can read more on that here.

It’s almost certain that the ultimate fate of the vaccine mandates will be decided by the U.S. Supreme Court. OSHA has issued the following statement regarding the temporary federal-court stay: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the [Vaccination] ETS pending future developments in the litigation.” (emphasis added).
In addition to these judicial challenges to vaccine mandates, legislative responses are popping up as well.

In non-vaccine news, 401(k) contribution limits are being raised for 2022

The IRS has announced the updated Internal Revenue Code (Code) Section 415 limits for 2022. Found in IRS Notice 2021-61, the cost-of-living-adjusted limits for 2022 include the following:

  • Effective Jan. 1, 2022, the limitation on the annual benefit under a defined benefit plan under Code Section 415(b)(1)(A) is increased from $230,000 to $245,000;
  • The limitation for defined contribution plans under Code Section 415(c)(1)(A) is increased in 2022 from $58,000 to $61,000;
  • The limitation under Code Section 402(g)(1) on the exclusion for elective deferrals described in Code Section 402(g)(3) is increased from $19,500 to $20,500;
  • The annual compensation limit under Code Sections 401(a)(17), 404(l), 408(k)(3)(C), and 408(k)(6)(D)(ii) is increased from $290,000 to $305,000;
  • The dollar limitation under Code Section 416(i)(1)(A)(i) concerning the definition of “key employee” in a top-heavy plan is increased from $185,000 to $200,000;
  • The limitation used in the definition of “highly compensated employee” under Code Section 414(q)(1)(B) is increased from $130,000 to $135,000; and
  • The dollar limitation for catch-up contributions to an applicable employer plan for individuals aged 50 or over remains unchanged at $6,500.

Although these limits were announced as many employers were beginning their open enrollment periods for 2022 benefits, 401(k) contributions can be adjusted during the course of the year and, therefore, are less time-sensitive. HR professionals should convey to employees their plan contribution limits for next year.


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