The Occupational Safety and Health Administration has recently announced that it is delivering employers a one-two punch to “make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.” Specifically, on January 26, 2023, OSHA issued two new pieces of enforcement guidance that could increase employers’ OSHA liability. Employers are therefore well-advised to spend some time addressing workplace safety hazards and mitigating their OSHA risks now—before OSHA comes knocking.Continue Reading New OSHA Enforcement Standards Likely to Increase Penalties for Employers Receiving Citations for Workplace Safety Violations
The Biden administration on Nov. 4 released a Fact Sheet announcing the details of its Occupational Safety and Health Administration (OSHA) and Center for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandates.
OSHA is issuing a Vaccination and Testing Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to get their employees vaccinated by Jan. 4. Unvaccinated employees will have to produce a negative test on at least a weekly basis.
CMS is requiring workers at healthcare facilities that participate in Medicare or Medicaid to be fully vaccinated by Jan. 4. The rule covers approximately 76,000 healthcare facilities and more than 17 million healthcare workers.
The Fact Sheet also announced that the Dec. 8 deadline for compliance with Executive Order 14042’s vaccination mandate for federal contractors would be extended to Jan. 4. The guidelines released Sept. 24 by the Biden administration paints federal contractors with a broad brush, stating that employees who work in human resources, billing, legal review and perform work “in connection with a Federal Government contract” must be vaccinated.Continue Reading The Federal Government Vaccine Mandate’s Impact on Colleges and Universities
On Friday, February 26, 2021, the Department of Labor (“DOL”) issued EBSA Disaster Relief Notice 2021-01 (the “2021 Notice”) to address expiring relief provisions previously provided in the DOL’s Disaster Relief Notice 2020-01 (“Notice 2020-01”) and the Notice of Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID–19 Outbreak (“Joint Notice”) (along with Notice 2020-01, the “2020 Notices”) issued by the DOL, the Department of the Treasury, and the Internal Revenue Service (IRS) (collectively “Agencies”). This highly anticipated guidance provides a somewhat more expansive interpretation of the relief period prescribed under the 2020 Notices.
Continue Reading Oh, What a Relief it Is! DOL Provides Guidance on COVID-19 Relief Periods
No one denies that employers confronted a plethora of challenges in 2020, and many had to make difficult decisions to reduce their workforces due to the pandemic. Such reductions in force can implicate a number of business considerations and labor laws, but for employers that sponsor qualified retirement plans, these employment decisions can inadvertently implicate the partial plan termination rules under the Internal Revenue Code. In the event of a partial plan termination, affected participants (which under current guidance includes those who have voluntarily terminated employment) must become immediately 100% vested in their benefits under the retirement plan.
The determination of whether a partial plan termination has occurred is based on the surrounding facts and circumstances. However, under guidance previously issued by the Internal Revenue Service, there is a rebuttable presumption that a partial plan termination has occurred if the percentage of participants decreased by at least 20%. When determining whether that threshold percentage has been met, only employer-initiated severances, such as reductions in force and plant closures, are taken into account.
This determination is generally made with respect to each plan year (i.e. as of December 31st for a plan on a calendar year). However, the applicable measurement period may be extended beyond the initial plan year where the same event that resulted in the decrease in participation in the initial plan year continues to exist in the subsequent period.Continue Reading Relief for Partial Plan Terminations May Be “Too Little, Too Early”
Under the Consolidated Appropriations Act, 2021 (H.R. 133)(the “Act”) (here), which was signed into law on December 27, 2020, new relief is available for employees who participate in health care flexible spending accounts and dependent care flexible spending accounts (“FSAs”). While the Internal Revenue Service (“IRS”) issued limited relief for FSA participants in 2020 (here), that guidance only expanded opportunities to make mid-year elections. It did not address the desire of so many employees to extend access to their unspent FSA balances beyond the 2020 plan year.
The changes under the Act are intended specifically to address this concern. Importantly, the changes are optional. Employers who implement these changes will likely experience higher costs due to reduced forfeitures and changes in plan administration. Additionally, changes to health FSAa could adversely affect the participant’s eligibility to contribute (or receive contributions) to a health savings account. Below is a summary of the changes affecting FSAs:Continue Reading Flexibility for Flex Accounts – Congress Provides New Relief to Employees
On December 11, 2020, the United States Department of Labor (DOL) issued a pre-publication version of its final regulations with respect to proxy voting in plans that are subject to the Employee Retirement Income Security Act of 1974 (ERISA). The purpose of the rule is to clarify the DOL’s longstanding position regarding fiduciary responsibilities to vote proxies, to coordinate with recent changes implemented by the United States Securities and Exchange Commission (SEC) for investment advisers, and to dovetail on recent changes in DOL guidance regarding ERISA plan investments that promote environmental, social, and governance (ESG) principles. These final regulations generally apply following the expiration of the 30-day period following publication in the Federal Register (although certain provisions are not effective until January 31, 2022 for plan fiduciaries other than investment advisers).
Continue Reading Plan Fiduciaries: You Have No Right to Vote