The Washington Report
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January 26, 2022
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.
COVID-19
OSHA Issues Rule Withdrawing COVID-19 ETS
On January 25, 2022, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released an interim final rule withdrawing the November 5, 2021, emergency temporary standard (ETS) which mandates that employers 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 applies to employers with 100 or more employees. On its website, the agency stated: “Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
The interim final rule is effective January 26, 2022.
The OSHA interim final rule is available here.
The OSHA COVID-19 Vaccination and Testing ETS website is available here.
Texas Federal Court Halts COVID-19 Vaccine Mandate for Federal Employees
On January 21, 2022, a U.S. District Court for the Southern District of Texas blocked President Biden’s Executive Order requiring all federal employees to be vaccinated against COVID-19. In response, the Justice Department stated it is appealing the decision.
Other HR/Employment
IRS Issues Notice on Retroactive Termination of Employee Retention Credit
On January 18, 2022, 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, which was enacted on November 15, 2021, amended the law so 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 IRS news release is available here.
IRS Notice 2021-65 is available here.
Aon Publications
HHS Yet Again Renews COVID-19 Public Health Emergency Declaration
On January 14, 2022, 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 January 16, 2022, although the Secretary has the right to terminate the declaration prior to its expiration date.
The Aon bulletin is available here.
Aon Publications on Federal Developments in 2021
The year 2021 marked the second year profoundly impacted by the COVID-19 pandemic. Aon provided insights into numerous legislative and regulatory developments throughout 2021 that affected employers. Many of the developments consisted of efforts by the U.S. federal government and employers to ameliorate the impact of COVID-19 on the nation’s economy, workforce, and health systems. As the year closed, the federal government’s vaccine-or-test/mask mandate for employers with 100 or more employees, its federal contractor vaccination mandate, and its vaccination mandate for health care workers were still mired in litigation. Earlier in the year, employers grappled with whether to provide incentives for COVID-19 vaccinations, requirements for covering COVID-19 diagnostic testing and preventive services, providing employee leave for COVID-19 vaccinations, and many other COVID-19-related matters that affected the workplace.
In addition to pandemic issues, Aon tracked other developments in human resources and employer-provided health and retirement plans. The topics covered in Aon U.S. bulletins and white papers in 2021 included pooled employer plans, “no surprises” medical billing, pension funding relief, mental health parity, defined contribution plan fee litigation, health plan price transparency, pension risk transfer, USERRA paid military leave, prescription drug cost reporting requirements, alternative-type investments in retirement plans, nondiscrimination rules on sexual identity and gender identity, health savings accounts, and high-deductible health plans. This bulletin gathers together Aon bulletins and white papers that highlighted significant developments in 2021, with direct links to the publications.
The Aon bulletin is available here.