While many of the United States’ largest corporations don’t oppose the Biden administration’s vaccine requirements for many employers, those companies say many of their questions about the administration’s rule have gone unanswered. The new rule requires employers with more than 100 employers to mandate COVID-19 vaccinations or require weekly testing of employees.
In an article published in The Hill, McDermott Partner Michelle Strowhiro said some employers may decide to scrap the testing alternative altogether.
“Administratively, it’s going to be quite burdensome for employers, especially large employers with hundreds or thousands of employees, to track weekly the testing results for employees,” Strowhiro said.
An August Willis Towers Watson poll found that 52% of 961 surveyed companies intend to implement at least one vaccine mandate by 2021’s fourth quarter. In a poll in May, 72% of respondents said they had no plans to require vaccines.
To encourage vaccination, some employers—like Delta Air Lines—are introducing or considering company healthcare plan surcharges for unvaccinated employees. However, in this article published via Advisory Board, McDermott Partner Judith Wethall said few employers have actually “pulled the trigger” on such a move.
On September 6, 2021, New York Governor Kathy Hochul designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the New York Health and Essential Rights (HERO) Act. This designation means that all New York employers must activate the workplace safety plans that they developed under the HERO Act standards. The workplace safety plan can be based on the model plan jointly developed by the New York State Department of Health and the New York State Department of Labor. Employers can also develop their own plans, subject to certain minimum requirements.
Companies curious about a major airline’s unvaccinated healthcare premium surcharge are discovering that it may be too complex to copy. The airline recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. In this Bloomberg Law article, McDermott Partner Judith Wethall said the compliance hurdles are “tricky and kind of dilute the message.”
As companies consider whether or not to introduce vaccine mandates for employees, there is interest among some employers to increase health care premiums or impose financial penalties on employees who refuse vaccination. One major airline, for example, recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. However, according to McDermott Partner Judith Wethall in The Hill, financial penalties for the unvaccinated are legally complicated, and vaccine mandates likely pose less regulatory issues for employers to impose.
The Internal Revenue Service (IRS) recently issued Revenue Procedure 2021-30, which provides an updated version of the Employee Plans Compliance Resolution System (EPCRS).
EPCRS is the IRS’s comprehensive program for plan sponsors to correct tax-qualified plan errors. This EPCRS update expands plan sponsors’ ability and methods to correct overpayments and to self-correct certain plan failures without filing a Voluntary Compliance Program (VCP) application, which can be costly and time-consuming. However, the IRS also eliminated the ability of plan sponsors to submit an anonymous VCP application, replacing anonymous VCP submissions with a pre-submission conference option.
In some of its most powerful language yet (and stopping just short of an absolute requirement), OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects.
On August 26, 2021, Illinois Governor J.B. Pritzker issued Executive Order 2021-20 (the Order). The Order mandates that all individuals in Illinois who are at least two years old and who are medically able must wear face coverings indoors and in other specified settings.
In addition, the Order mandates COVID-19 vaccination for certain professionals in healthcare and education, as well as for students and state employees, subject to certain exemptions which require regular COVID-19 testing.
Illinois has enacted a new law governing restrictive covenants: Public Act 102-0358. This law outlines the requirements for valid noncompetition and nonsolicitation agreements, and enforcement of those covenants. It will apply to all agreements entered into on or after January 1, 2022.
According to McDermott’s Brian Mead and Barrick Bollman, the legislation allows an employee to recover costs and reasonable attorney’s fees if the employee prevails in an action seeking to enforce a noncompetition or nonsolicitation agreement. The legislation also requires that employers advise employees, in writing, to consult with counsel before entering into a noncompetition or nonsolicitation agreement, and that employees be afforded 14 days to review the covenant before signing.
Research continues to shed light on COVID-19’s long-term health effects for some people, and these “post-COVID conditions” will create additional challenges for employers.
In this Law360 article, McDermott partner Carole A. Spink says employers should be aware that long-haul COVID symptoms mean additional accommodations for employees.
“As they have done throughout the pandemic, employers should have a plan for addressing potential long-term absences as a result of post-COVID effects. On the practical side, at some point employers may need to determine whether a particular situation has become such that providing a continuing reasonable accommodation would pose an undue burden,” Spink notes.
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