BenefitsBCLP

UPDATED to reflect issuance of IRS Rev. Proc. 2021-45

Nearly two months after President Biden announced that a federal emergency temporary standard (“ETS”) regarding a COVID-19 vaccine mandate for private employers would be forthcoming, the Occupational Safety and Health Administration (“OSHA”) has finally issued relevant guidance.  For example, OSHA published a fact sheet for the ETS on the agency’s website and announced that the final ETS will be published in the Federal Register on November 5, 2021.  An unpublished copy of the ETS is available here. 

Now that the Occupational Safety and Health Administration (“OSHA”) has issued its Emergency Temporary Standard (“ETS”) requiring employee vaccination / testing for private employers with 100 or more employees, the first question on the minds of many small to mid-size employers is:  “Are we covered?”  Fortunately, OSHA has provided guidance regarding the question of coverage.

While the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation coverage subsidy requirements imposed by the American Rescue Plan Act of 2021 (previously discussed here and here) are at the forefront of employers’ minds, recent litigation trends should motivate plan sponsors to review their standard COBRA election notices to ensure they comply with the general requirements in the regulations promulgated by the Department of Labor (“DOL”).

The clouds have been forming on the horizon for years now:  from the courts we have seen emerging lines of ERISA litigation asserting fiduciary obligations to protect the privacy rights of participants, and from the regulatory agencies we have heard an acknowledgment of the need for guidance regarding fiduciary responsibility with respect to cybersecurity risks.  A call to action for plan fiduciaries came last week from the Department of Labor (“DOL”) in the form of new Cybersecurity Guidance for Plan Sponsors, Plan Fiduciaries, Record-Keepers, Plan Participants.  See News Release at https://www.dol.gov/newsroom/releases/ebsa/ebsa20210414.

The American Rescue Plan Act of 2021 (“ARPA”) provides that, for the period from April 1, 2021 until September 30, 2021, if an individual’s Consolidated Omnibus Budget Reconciliation Act (“COBRA”) qualifying event is an involuntary termination of employment or a reduction of hours (each, an “Assistance Eligible Individual”), then 100% of the COBRA premium is paid by the employer, health plan, or insurer and the premium expense is reimbursed by the federal government through a refundable FICA tax credit. We previously summarized the COBRA subsidy provisions under ARPA in a blog post, available by clicking here.