"Absent legislative action or an executive order, September 30 will be the end of mandatory paid COVID-19 leave under California law. But beware: Local ordinances will remain."

"While efforts to impose workplace vaccine mandates are not new (and only heating up), Delta's approach based on an economic incentive has caused some to ask whether it is permitted under applicable law. This post explores that question."

33 pages. "The Occupational Safety and Health Act of 1970 gives OSHA the ability to promulgate an ETS that would remain in effect for up to six months without going through the normal review and comment process of rulemaking.... On September 9, 2021, President Joe Biden announced that OSHA is developing an ETS that would obligate employers with more than 100 employees to require their employees to be vaccinated against COVID-19 or be tested weekly for COVID-19." [R46288, Sep. 13, 2021]

"An employer that provides or otherwise pays for vaccination or testing for employees will need to consider the following issues: Does paying for vaccination/testing create a group health benefit that is subject to ERISA, COBRA and HIPAA? If so, how will the employer comply with the plan documentation, employee disclosure, COBRA, HIPAA privacy and other compliance requirements applicable to group health plans? Will HIPAA require that the employer obtain an authorization from each employee to receive or use the vaccination or testing results for employment purposes?"

"[T]he cost of home testing for COVID-19 is an eligible medical expense that can be paid or reimbursed under health flexible spending arrangements (health FSAs), health savings accounts (HSAs), health reimbursement arrangements (HRAs), or Archer medical savings accounts (Archer MSAs).... [T]he costs of personal protective equipment, such as masks, hand sanitizer and sanitizing wipes, for the primary purpose of preventing the spread of COVID-19 are eligible medical expenses that can be paid or reimbursed under health FSAs, HSAs, HRAs, or Archer MSAs."

"In addition to private sector employers, the president's EO covers federal employees and federal contractors. [A chart] outlines some of the requirements outlined in the EO and the federal agencies charged with issuing guidance.... When will rules go into effect -- and what should employers be doing now?"

"Employers continue to have significant concerns about the affordability of employer-provided health coverage for employees and their families ... Most employers view potential health reforms favorably overall ... Employers viewed a public option most favorably if pricing is available to all plan sponsors[.]"

"Premiums for health insurance for individuals and small group markets are not expected to see large adjustments from carriers in 2022 ... However, regional differences in healthcare delivery might result in some variation in premiums, due in large part to the COVID-19 pandemic[.]"

"President Biden has directed OSHA to develop a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The rule will also require covered employers to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are ill post-vaccination."

"Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality and privacy issues."

"Our company plans to require employees to provide proof of their vaccine status by emailing human resources a copy of their vaccine card. Does this present any data-privacy concerns? ... Our company plans to hire a third-party vendor to create a portal where information about vaccine status can be uploaded and stored. Does that present any additional data-privacy concerns? ... What if an employee lost their vaccine card, and asks their medical provider to send the vaccine-status information to HR directly?"

"A company with an office needs to start thinking about how their space acts as a unique, long-term benefit. Whether it’s building a social group, professional development or engagement with the local community, working in an office has big advantages—The company just needs to protect, encourage and promote them."

"Initial [EEOC] guidance on vaccination surcharges or incentives most closely follows how surcharges and incentives work as part of a wellness programs such as tobacco surcharges or smoking cessation programs.... An Applicable Large Employer (ALE) must calculate the affordability of the plan based on an employee receiving the vaccination surcharge, which might cause an employer to unintentionally create an unaffordable plan to a large portion of its employee population."

"If an employer wants to follow [Delta Airlines'] example, the (flight) path might seem confusing or difficult. HIPAA's wellness program rules are one of several laws to keep in mind. [The authors have] prepared a decision tree to show how a vaccine surcharge can be structured to fit within the limitations of HIPAA."

"[Y]ou would have to use the premium plus the surcharge when determining affordability even for those vaccinated employees who actually paid the lower amount. Many employers already struggle to offer an 'affordable' plan, so for them a surcharge may not be practical given increased exposure to ACA penalties."

"The paid leave rights of parents afforded under the federally enacted [FFCRA] expired on December 31, 2020. Since that time, a handful of states have passed paid leave rights, but not all guarantee coverage for school closures. Given the circumstances, time off for working parents remains a contentious issue."

9 pages. "For the 2021 rating cycle, the COVID-19 pandemic introduced new and significant uncertainties into the development of premium rates.... While much of those initial uncertainties have resolved, the 2022 rating cycle may see some related, secondary impacts of the pandemic such as the potential for ending of the public health emergency and the [ARPA] enhanced subsidies ... [C]arriers are more likely to include adjustments in their 2022 rates. However, those impacts are not expected to be material."

"Federal law still requires insurers to cover testing at no cost to the patient when there is a medical reason for seeking care, such as exposure to the disease or a display of symptoms. But more of the tests sought now don't meet the definition of 'medical reason' and are instead for monitoring. And insurers are now treating COVID more like any other disease, no longer fully covering the costs of care."

"Although there is potential for conflict with a myriad of federal statutes -- including the ACA, HIPAA, ADA, and GINA -- this arrangement may be structured legally if done through a properly designed wellness program."

"The clear language of the existing regulations ... would result in any wellness program incentivizing a COVID-19 vaccination to increase the amount the employer must report to the IRS on line 15 of the Form 1095-C by the amount of the penalty being imposed on employees who are not vaccinated.... [E]ven a fully vaccinated employee would have to have his/her amount that is to be reported by the employer on line 15 of the Form 1095-C increased by the amount of the penalty as the wellness program would not relate to tobacco use! ... This would have a dramatic impact on who would be eligible to receive a premium tax credit as a result of the employer's offer of coverage not meeting the ACA's affordability definition."

"A weekly COVID-19 testing program ... can be expected to involve ongoing administration and therefore is likely to be [an employer group health] plan.... A weekly COVID-19 testing program does not comply with the ACA's requirements for preventive services. In order to avoid penalties, then, employers will want their testing program to provide only excepted benefits. There are two categories of excepted benefits relevant here: on-site medical clinics and employee assistance programs (EAPs)."

"Consider that a two-tiered premium pricing structure could be phrased in one of two ways -- as a penalty for unvaccinated workers, or as a discount for vaccinated workers.... [Be] mindful to not have too large a gap between the two price points.... [Separate] the health plan enrollment forms and any vaccine medical exemption documentation from the general employment files.... [Consider] whether a bifurcated premium must first be subject to the bargaining process prior to being imposed on that segment of the population."

"While [this commentary] is based on federal law and will apply in most jurisdictions, employers should consult applicable state and local laws. At least one state (Montana) has prohibited private employers from mandating COVID-19 vaccination and recognizes vaccination status as a protected category, prohibiting employment discrimination based on vaccination status."

"Many employees are invoking religion to avoid getting the vaccine.... [P]olitical or social philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.... [An] employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an 'undue hardship' on the employer's legitimate business interests.... Title VII does not require that the religious beliefs of an employee be prioritized above safety in the workplace."

"More than 90% of employers are concerned about COVID's long-term impact on deferred care (particularly related to cancer diagnosis and treatment) and employee mental health.... While mental health service access is still the prevailing focus for 76% of employers, 57% named stigma as one of their top three areas of concern for employee well-being."