The California Department of Fair Employment and Housing (DFEH) recently announced a new affirmative effort to detect and correct violations of the Fair Chance Act (FCA)—California’s ban-the-box law—by using online technology to identify words and phrases in job advertisements that violate the FCA. The FCA was first enacted on January 1, 2018, to prohibit employers with five or more employees from asking job candidates about their conviction history before making them a job offer.
On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked the Emergency Temporary Standard (ETS) issued on November 4, 2021, by the Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to implement COVID-19 vaccination policies. The ETS is stayed until further notice, halting its implementation temporarily. While the future of the ETS remains uncertain, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.
The Internal Revenue Service (IRS) recently announced the cost-of-living adjustments to the applicable dollar limits for retirement plans for 2022. Most of the dollar limits currently in effect for 2021 will increase, with only the catch-up contribution limit remaining the same for 2022.
On November 4, 2021, the US Occupational Safety and Health Administration (OSHA) unveiled its Emergency Temporary Standard (ETS) to protect employees of large employers in all industries from COVID-19. The Centers for Medicare and Medicaid Services (CMS) simultaneously released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, applicable to most Medicare- and Medicaid-certified providers and suppliers, which must be met to continue participation in Medicare and Medicaid programs. Finally, the White House announced that its previously published federal contractor vaccination mandate would be updated to move the compliance deadline from December 8, 2021, to January 4, 2022.
A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.
“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.
On October 4, 2021, the US Departments of Labor, Treasury, and Health and Human Services issued guidance regarding the application of the Health Insurance Portability and Accountability Act (HIPAA) wellness rules to vaccine-related premium surcharges and discounts, clarifying that employers may charge vaccine premium incentives if they adhere to the requirements of activity-only health-contingent programs.
Employers have grown more interested in exploring incentives designed to increase COVID-19 vaccination rates among employees. Some employers have announced plans to charge unvaccinated employees higher contributions for health coverage than vaccinated employees, while some have been considering other options, such as excluding coverage for COVID-related illnesses, charging higher cost-sharing for COVID-19-related illnesses and offering more generous plan options to employees who are vaccinated.
What are the impacts of a multigenerational workforce, and how do you best bridge generational differences in the workplace?
In this Chicago Lawyer Magazine article, McDermott Partner Tina Martini suggests that multiple generations of employees can have varying ideas about how to approach issues, as well as having distinct points of view.
“There can be adverse consequences in not having different generations represented, including the potential for it to negatively impact your ability to recruit and retain top talent,” Martini notes.
In Notice 2021-58, the Internal Revenue Service clarified that the one-year tolling relief periods for Consolidated Omnibus Budget Reconciliation Act (COBRA) elections and initial premium payments run concurrently, not consecutively. This means that a qualified beneficiary generally will have only one year of total disregarded time for the election and initial payment periods.
As COVID-19 becomes an endemic threat, corporate officers should accept the fact that the virus will be a permanent enterprise risk for the indefinite future.
In this FT Specialist article, McDermott Partner Michael Peregrine says corporate boards should place their focus on business and operational challenges that result from the pandemic. These include:
What questions should a governing board’s executive compensation committee ask itself?
According to this August 2021 e-book edited by McDermott Partner Michael Peregrine, committee members should regularly ask themselves questions about executive benefit programs, executive compensation programs, performance priorities and leadership development programs.
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