The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.

The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:

  1. A mandatory vaccination policy.
  2. A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.

Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees.  In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.

We break down the details below.

Which Employers Are Covered?

All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered.  The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.


Continue Reading OSHA Releases COVID-19 Emergency Temporary Standard: Here’s What It Means for Employers

President Biden has announced a series of measures aimed at combatting the COVID-19 pandemic which will require certain employers to set forth mandatory vaccination requirements. These measures direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Safer Federal Workforce Task Force (Task Force) to set forth specific guidance, which we are still awaiting.  However, here is what we know now:

OSHA Emergency Temporary Standard

According to President Biden’s September 9, 2021 briefing, OSHA has been tasked with developing an Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to require employees be vaccinated against COVID-19 or be tested on a weekly basis. The ETS will also require these companies to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. The fines for violating this rule are reported to be $14,000 per violation.


Continue Reading President Biden Announces Mandatory Vaccination Requirements for Certain Employers

Join us for a virtual seminar in which Bass, Berry & Sims labor & employment attorneys will address a broad range of recent employment law developments and anticipated issues significant to employers and provide practical guidance for understanding the associated impacts and legal challenges.

Topics covered during the webinar will include:

  • Return to work update

Plan sponsors and plan fiduciaries, and vendors, advisors and other service providers: Take notice! The end of the special COVID-19 “Outbreak Period,” which began on March 1, 2020 and continues to apply, is nowhere in sight based on recent guidance from the Department of Labor (DOL) in the form of a Disaster Relief Notice (New Guidance).

This means that the “tolling” of a number of participant and plan deadlines did not end on February 28, 2021, as most plan sponsors and others had assumed based on prior guidance. In fact, for some participants, the tolling period could extend far out into the future. In addition, the new guidance reminds plan sponsors and plan fiduciaries of the “guiding principle” for administering employee benefit plans – act reasonably, prudently and in the interest of workers and their families. Good faith compliance with the new guidance will likely be judged on this standard.

Background

Pursuant to joint guidance issued on May 4, 2020 (Joint Guidance), the DOL and Internal Revenue Service (IRS) suspended or “tolled” a number of participant and plan deadlines. The “tolled” deadlines include:

  • HIPAA Special Enrollment Notice Obligations – the 30-day period (or 60-day period, as applicable) to request special enrollment in a group health plan.
  • COBRA Notices, Elections and Premium Payments – the periods for individuals to notify the plan of certain COBRA events (e.g., a qualifying event, such as a divorce or child losing eligibility), the 60-day period for electing COBRA continuation coverage, and the 45-day (initial) and 30-day (monthly) deadlines for making COBRA premium payments.
  • Claims and Appeal Procedures – the date by which an individual may file a claim for benefits or an appeal of an adverse benefit determination (this applies to all ERISA-both welfare and retirement-plans).


Continue Reading DOL Disaster Relief Notice Offers Guidance on Extension of COVID-19 Outbreak Period Benefits

Join us for a virtual seminar in which Bass, Berry & Sims’ labor & employment attorneys will discuss anticipated legislative developments and agency guidance changes under the new administration, and provide practical advice for understanding the associated impacts and legal challenges to employers.

We will also review the lessons learned from COVID-19, address its continued

While managing the fallout from COVID-19 has dominated the focus of employers this year, there have been a number of recent employment law developments unrelated to the virus. During this virtual seminar Bass, Berry & Sims labor & employment attorneys will address legislative developments and agency guidance with respect to a number of these issues

On September 11, in response to a New York federal district court striking down some of the Department of Labor (DOL) regulations regarding the Families First Coronavirus Response Act (FFCRA), the DOL issued guidance (Guidance) affirming in part and revising in part, its regulations. While most of the Guidance does not result in any significant change or consequence to employers, the DOL’s revision of its prior definition of “health care provider” significantly impacts how healthcare entities in the U.S. must implement paid leave benefits under the FFCRA.

Work Availability

The Guidance clarifies that the “work-availability” requirement under the FFCRA applies to all types of leave taken under the FFCRA. In other words, to take any leave under the FFCRA, the FFCRA-qualifying reason must be the actual reason that the employee is unable to work rather than the employer not having work available for the employee to perform. The DOL makes clear in the Guidance that the “work-availability” requirement ensures that employers are not forced to provide paid leave benefits under the FFCRA where the employer would not have had work for the employee to perform, regardless of whether the employee has a qualifying reason for leave under the FFCRA.


Continue Reading DOL Issues Another Round of Guidance on FFCRA

On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:

  1. That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
  2. The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
  3. That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
  4. That an employee must provide documentation requesting FFCRA before the beginning of the leave.

This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.

A more detailed description of the ruling is provided below.


Continue Reading Court Ruling Invalidates DOL’s Final Rule Related to FFCRA

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act

Since the passage of the Families First Coronavirus Response Act (FFCRA), many healthcare organizations, especially those with a structure that includes a friendly or captive PC model, have struggled to determine whether they may aggregate employees across all affiliated entities to reach the 500-employee threshold that exempts employers from the paid leave requirements of the FFCRA.

However, based on rolling FFCRA guidance recently issued by the Department of Labor (DOL), employers of healthcare providers may exclude such employees captured by the DOL’s definition of healthcare provider from paid leave benefits under the FFCRA.  Because of the broad scope of the definition of healthcare provider recently provided by the DOL, many healthcare organizations and even those entities that provide services to healthcare organizations may be able to exclude all of their employees from paid leave benefits under the FFCRA regardless of whether they meet the 500-employee threshold.


Continue Reading DOL Offers Definition of Healthcare Provider under FFCRA