Proposed Rules (EBSA)

• Implement SECURE Act and Related Revisions to Employee Benefit Plan Annual Reporting on the Form 5500
• Definition of the Term "Fiduciary"
• Implementing Executive Orders 13990 and 14030
• Prohibited Transaction Exemption Procedures
• Provider Nondiscrimination Requirements for Group Health Plans and Health Insurance Issuers in the Group and Individual Markets

Final Rules (EBSA)

• Pension Benefit Statements -- Lifetime Income Illustrations
• Adoption of Amended and Restated Voluntary Fiduciary Correction Program
• Requirements Related to Surprise Billing, Part 1
• Requirements Related to Surprise Billing, Part 2
• Amendment of Abandoned Plan Program

"These FAQs address the tax credits available under the American Rescue Plan Act of 2021 (the 'ARP') by employers with fewer than 500 employees and certain governmental employers without regard to the number of employees ('Eligible Employers') for qualified sick and family leave wages ('qualified leave wages') paid with respect to leave taken by employees beginning on April 1, 2021, through September 30, 2021, as well as the equivalent credits available for certain self-employed individuals."

[Editor's note: The IRS has published separate FAQs about tax credits that may be claimed for qualified leave wages paid with respect to leave taken by employees prior to April 1, 2021, under the FFCRA and the COVID-related Tax Relief Act, at Tax Credits for Paid Leave Under the [FFCRA] for Leave Prior to April 1, 2021 FAQs.]

"For 2021, 92% expanded the support for mental health and emotional well-being, which includes programs focused on stress management, sleep improvement and resiliency ... Nearly three-quarters (74%) of employers increased programs to support work/life balance, with 69% of employers adding new leave options or expanding their leave benefits during the COVID-19 pandemic."

"An employer may offer unlimited incentives to employees to voluntarily provide documentation that they received a COVID-19 vaccination on their own.... An employer may not offer an incentive to an employee in return for an employee's family member getting vaccinated by the employer or its agent, but it may offer family members the opportunity to be vaccinated without offering the incentive to the employee.... Remember, incentives may be taxable."

"As the COVID-19 pandemic upended workers' lives, employers responded by providing flexible work arrangements, addressing caregiving needs and supporting workers' emotional well-being. It now looks like many employers are planning to keep those offerings after the pandemic ends."

"While many patients have encountered coronavirus bills for testing, there have been only a handful involving vaccines. Still, the rules are not foolproof, and some patients have faced illegal charges.... The fees range from $20 to $850."

"In late May, the first lawsuit against a private employer was filed in Texas.... [A] group of 117 unvaccinated nonmanagerial employees ... allege their employer wrongfully terminated them over an improper vaccine mandate applicable to all employees.... Essentially, the plaintiffs assert that the mandatory vaccination policy is illegal pursuant to federal law, and so they were wrongfully discharged." [Bridges v. The Methodist Hospital, No. 21-06-07552 (Montgomery Cty. Tx. complaint filed May 28, 2021)]

"New York already requires employers to allow employees to use their accrued sick leave to get vaccinated. NYDOL has now clarified that sick leave may be used for side effects from vaccinations."

"The new MA EPSL benefit is in addition to existing paid time-off benefits offered by an employer and required by law, subject to some limited exceptions.... [T]his requirement applies to all Massachusetts employers regardless of the number of employees.... Employers are required to provide a Notice to all employees and post a notice regarding MA EPSL. The notice is expected to be available on or before June 14, 2021."

"An employer may not require an employee to use other forms of leave before using COVID-19 EPSL.... While an employee is on leave under COVID-19 EPSL, an employer must maintain the same employment benefits to which the employee is otherwise entitled (e.g., group health insurance, life insurance, disability insurance, sick leave, or vacation leave)."

"Because the mandate was declared an emergency law ... it appears highly likely that the mandate went into effect immediately on May 28. However, businesses should note that the previously vetoed version of the legislation called for a 10 day grace period after enactment before going into effect.... It appears that employers will need to compensate employees for Massachusetts COVID-19 emergency paid sick leave at their regular rate of pay."

"[Key trends include:] A renewed interest in 'bedrock benefits' such as health insurance, group life insurance and disability insurance.... Technology to tailor the benefits experience and digital tools to support open enrollment. Three-quarters of employers surveyed said they expanded or added paid time away from work. Among those who gave their workers more time off, 46% added medical leave, 39% offered family leave and 30% added parental leave."

"The EEOC provides several examples of 'reasonable accommodations' in the context of COVID-19 vaccinations, including teleworking or shift modification.... Whether an employer mandates that employees be vaccinated by the employer's agent or by the employer directly, the employer will be required to do the same 'direct threat' analysis.... If the incentives are provided outside of a health plan (such as providing employees with a cash bonus for being vaccinated) then the incentives may be taxable compensation to the employees."

"Can employers exercise any influence over employees' decisions to be vaccinated without violating the federal anti-discrimination laws? Yes, they can.... And is it lawful for an employer to request or require proof of vaccination? Yes.... Does the EEOC have any recommended 'best practices' related to reasonable accommodation? They're glad you asked!"

75 pages. "This [report] provides data and actionable insights into plan and participant actions taken in 2020, year over year, and through the lens of the pandemic.... [T]he financial, physical, and emotional strains caused by the coronavirus had, and will continue to have, repercussions on plan design and employee retirement savings outcomes.... [O]verall, plan sponsors and participants continued to understand the value of retirement savings programs last year."

"[1] Can an employer require an employee to be vaccinated? Yes.... [2] Can an employer require an employee to provide proof of vaccination? Yes.... [3] Can an employer provide an incentive for employees who provide proof of vaccination? Yes.... [4] Is information about an employee's COVID-19 vaccination confidential medical information? Yes."

"[As] of this writing, nearly every state in the union has legislation pending that would prohibit employers from mandating employee vaccinations. While the EEOC guidance clearly endorses vaccine mandates and incentives under federal law, such programs may not be permissible under state or local law."

"If your employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you'd like with no apparent limitations. If your organization (or an entity acting on your organization's behalf) administers the vaccine, you can still offer incentives -- but they cannot be so substantial in value as to be considered coercive. Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives[.]"

"Employees apparently are entitled to MA EPSL benefits starting as early as June 7, 2021, until September 30, 2021. The new MA EPSL benefit is in addition to existing paid time-off benefits offered by employers or required by law (such as Earned Sick Time), subject to some limited exceptions."

"The law also creates a $75 million COVID-19 Emergency Paid Sick Leave Fund to reimburse eligible employers for providing their employees with this additional emergency paid sick leave. This new paid leave entitlement begins 10 days after enactment, or June 7, 2021, and extends until September 30, 2021, or until the fund is exhausted."

"Employers may encourage employees and their family members to receive a vaccination without violating federal EEO laws by [meeting certain conditions] ... Employers may not offer an incentive to an employee in return for an employee's family member receiving a vaccination by the employer or its agent ... [J]ust because mandatory vaccinations do not violate federal EEO laws does not mean that an employer can ignore state and local laws that might be inconsistent or more restrictive."

"The updated guidance ... cautions employers that they may need to consider the disparate impact that mandatory vaccination policies may have on other protected classes.... [T]he new guidance stands as a warning against implementing a blanket policy excluding unvaccinated employees from the workplace on the basis that they pose a direct threat to the workplace."

"[A]lthough the EEOC maintains the distinction it drew in the December guidance between mandatory programs in which an employee receives the vaccine from a third party and those in which the employer administers the vaccine, it slightly restates the standard.... The EEOC makes clear in its updated guidance that documentation concerning proof or confirmation of vaccination is a medical record subject to the strict confidentiality requirements of the ADA."

"Seventy-two percent of workers feel confident in their ability to retire comfortably, up 3% since March, 2020 ... 30% of employees say they've made changes to their retirement plans and of those, 60% increased their plan contributions ... Just 25% stopped or reduced their contributions."

"As employers adjust their policies and benefits to meet the needs of a more distributed workforce, some are continuing to help with commuting expenses while others are deciding to redirect spending to support other benefits."