The IRS has proposed two significant changes to electronic filing requirements for various information returns including not just the Forms 1094-C and 1095-C filings required of many employers by the Affordable Care Act (ACA), but common payee statements like Forms W-2 and 1099. If the proposed changes are finalized – we expect that to happen by this autumn – all but the very smallest employers will be required to file these forms electronically for filing due dates falling in 2022 and beyond. Employers wishing to engage an ACA reporting and/or payroll vendor to comply with electronic filings requirements will need to begin making changes to comply.
Under current e-filing rules, an employer subject to the ACA’s employer mandate is not required to file its Forms 1094-C and 1095-C electronically unless the employer is submitting at least 250 of the forms to the IRS. When determining whether the employer crosses the 250-return threshold, the employer separately counts the different returns it files, such as its Forms 1094-C and 1095-C, and even payee statements like Forms W-2, 1099, etc.
For example, an employer with 150 ACA full-time employees and 50 part-time employees over the course of the calendar year may be required to file 200 Forms W-2, 150 Forms 1095-C and one Form 1094-C, but because the employer is not filing at least 250 of the same form, the employer is not required to file any of the forms electronically.
The new IRS proposal would drop the 250-return threshold to 100 for returns due in 2022 (and to 10 for returns due in 2023 or later years), and, most significantly, would require employers to aggregate the number of different returns it files when determining whether the 250-return threshold is reached. In the example above, for returns due in 2022, the employer would aggregate the 200 Forms W-2, 150 Forms 1095-C and the one Form 1094-C, for a total of 351 returns. Because the aggregated total of returns due from the employer is at least 250, all the returns must be filed electronically.
Many employers that until now have filed their Forms 1094-C/1095-C, W-2, 1099, etc. on paper will be required – assuming the IRS shortly finalizes the newly proposed regulations – to submit those forms to the IRS electronically for filings due in 2022. Almost all employers will be required to e-file by 2023. For employers wishing to engage a vendor to conduct electronic filing – particularly those for whom the e-filing status quo will change next year – the search for an e-filing vendor should begin.
The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area. So what does this mean for employers and your masking policies?
What Has Changed and Why?
The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.
Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.
What About OSHA’s Emergency Temporary Standard?
Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.
Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.
According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.
Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities.
What Should Employers Do?
The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.
If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.
If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood.
The Centers for Disease Control and Prevention (CDC) just substantially relaxed its pandemic guidance for K-12 schools. While certain restrictions remain and the guidance may continue to evolve in the coming months, especially if the COVID-19 vaccine becomes available for younger children, this new guidance provides schools with more information as they plan for the 2021-2022 school year. What do you need to know about this July 9th update?
What Has Changed?
The new CDC guidance has three important changes. First, it clarifies that fully vaccinated employees, staff, and students do not need to wear masks or facial coverings when indoors. Also, masks are not recommended for outdoor use unless your school is in an area of “substantial to high transmission,” and individuals are in crowded settings or engaging in activities that involve “sustained close contact” with others who are not fully vaccinated.
Second, the CDC’s guidance has a strong emphasis on full re-opening with in-person learning, regardless of whether all the prevention strategies can be implemented at your school. For example, the new guidance continues to recommend that students be spaced at least three feet apart, but with a new caveat: If maintaining physical distancing would prevent schools from fully reopening for in-person learning, schools could instead rely on a combination of other strategies like masking, testing, and improved ventilation.
Finally, the CDC strongly urges schools to promote vaccination among eligible students as well as teachers, staff, and household members, which it describes as “one of the most critical strategies to help schools safely resume full operations.”
What Has Not Changed?
The CDC continues to recommend prevention strategies, such as:
What Do These Changes Mean for Schools?
Of course, children under 12 are not yet eligible for vaccination so elementary students and some middle school students will need to continue to wear masks indoors. Even for students ages 12 and older, schools wanting to go mask-less will have to determine the best way to go about it. Because the masking guidance only applies to fully vaccinated individuals, your school may have an inconsistent patchwork of some employees and students wearing masks while others are not. These inconsistencies may be disruptive, difficult to enforce, and may unintentionally single out those who do not get the vaccine, including for medical or religious reasons.
The CDC seems to be encouraging schools to collect information on vaccine status before allowing employees and students to go mask-less inside. The CDC guidance includes a description of times when school administrators may want to require the universal wearing of masks and this includes when the school lacks a system to monitor the vaccine status of employees and students or if there is difficulty monitoring and enforcing mask policies that are not universal. Therefore, in states where there is no local restriction, discussed more below, schools that want to allow vaccinated employees and students to go mask-less should implement a process to collect information on vaccination status, track that information, and use it to inform their masking and distancing practices.
Local Laws
All schools also have to consider local and state law implications before implementing new policies on vaccinations and masks. For example, Florida private businesses, including schools, are free to establish their own mask policies. However, under the so-called vaccine passport law, Florida schools are prohibited from requiring vaccination documentation for students and parents to enter the campus or receive a service from the school. Nothing in the law prohibits schools from asking that parents and students provide proof of vaccination on a voluntary basis if they want to be mask-less on campus. Some Florida schools, however, are choosing to simply rely on parents’ and students’ representations that they are vaccinated or to ask them to sign an attestation certifying that they have been fully vaccinated because schools are not comfortable asking families for documentary proof of vaccination.
In Texas, meanwhile, while Governor Greg Abbott issued an executive order prohibiting the use of masks in public schools, private schools are also free to implement masking policies at their own discretion. Texas private schools should consider seeking proof of vaccination if they intend to allow vaccinated students and employees to go mask-less. Keep in mind, however, that the Texas legislature passed a bill prohibiting private schools from requiring students be vaccinated. Therefore, requiring vaccinations of all age-appropriate students is not a solution to the inevitable monitoring and enforcement challenges associated with a partially masked student body.
Finally, despite the CDC guidance, California currently still requires students and faculty to wear masks in indoor settings regardless of vaccination status. Schools should expect more guidance from the California Department of Public Health in the next several days.
Conclusion
As schools prepare for the new normal, you should keep up to date with the rapidly changing developments at the federal, state and local level. We will continue to monitor the developing COVID-19 situation and provide updates as appropriate.
The U.S. Departments of Health and Human Services, Labor, and Treasury, and the Office of Personnel Management have issued “Requirements Related to Surprise Billing; Part I,” an interim final rule to implement the No Surprises Act passed late last year as part of the Consolidated Appropriations Act, 2021. The No Surprises Act, which generally becomes effective January 1, 2022, minimizes the amounts that participants in a group health plan must pay for medical care received from physicians or other healthcare providers who are, unknown to the participant, outside of the plan’s network; this is referred to as “surprise billing.” In addition, the No Surprises Act limits situations in which out-of-network providers can bill directly for amounts not paid for by the group health plan; this is referred to as “balance billing.”
The rule implements portions of the No Surprises Act by placing restrictions on group health plans, as well as health insurance issuers, physicians, and other healthcare providers. The rule requires plans to treat certain services from out-of-network providers and facilities as in-network in applying cost-sharing, such as deductibles and co-insurance. Thus, the participant will have the same out-of-pockets costs for such services regardless of whether the facility or provider has a contract with the plan. Similarly, the rule forbids out-of-network providers from billing participants for amounts in excess of the participant’s in-network cost-sharing responsibility, subject to the participant’s ability to waive this protection in some situations.
Specifically, among other provisions, the rule implements certain consumer protection provisions of the No Surprises Act as follows:
The issuance of the rule is accompanied by fact sheets for health plans and issuers, as well as consumers. The Department of Labor has also issued instructions and a model notice that plans and issuers could use to meet requirements to make certain information publicly available, post on a public website, and include in each explanation of benefits.
The rule will take effect for healthcare providers and facilities on January 1, 2022. For group health plans, health insurance issuers, and Federal Employees Health Benefits Program carriers, the provisions will take effect for plan, policy, or contract years beginning on or after January 1, 2022. Comments on the rule are due within 60 days after the rule is published in the Federal Register. It is likely that this rule will generate significant comments. The rule may also change in response to those comments.
I understand that your first thought may be that this article has nothing to do with your business and you can skip it.
Please read before you disregard. Your employees will soon receive a union message! You have a short amount of time to decide if that message comes from your organization or if you will wait and your employees will learn all they need to know about unions from the Federal Task Force, whose very existence is to encourage unionizing.
I understand the desire to avoid the topic of unions as in my thirty years of working as an Employer Advocate, I’ve skimmed over union articles, and barely skimmed at that. Unions have never been a real issue for most Florida employers, unless you are Disney or a public service entity/municipality. Yes, we must work within the regulations and rules around Section 7 rights (protected concerted activity) of the National Labor Relations Act, but unions have never been a concern. Nationally, there has been a steady decline in union activity as the rights of employees have continued to expand. What is the threat now? Why does it matter to you?
Biden vowed to be “the most pro-union president you’ve ever seen” and he appears to be living up to that promise. His first order of business, day one in office, was to fire (and replace) the sitting General Counsel of the NLRB, even though his term was set to expire November 2021. This is the first time in history a President has fired the sitting General Counsel!
Biden nominated Marty Walsh to be our Secretary of Labor. Mr. Walsh has been confirmed by the Senate and is now the first union member in nearly 50 years to run the Department of Labor.
Biden’s most recent act to abide by the union promise was an Executive Order to create a task force to encourage worker organizing and collective bargaining.
VP Harris has been tapped to chair the Federal Task Force. The task force has no more than 180 days from the Executive Order to submit recommendations for actions to promote worker organizing and to increase union density.
Most business owners and HR professionals have no history in dealing with a partial workforce rebellion. This could happen in individual companies or it could be a wider industry movement in a city or region. Again, most of us have no history in dealing with unions or collective bargaining, so where do you start? What are you supposed to do and how?
You may wish to start with training your managers. They typically have the pulse of your employees and will be the first to know if organizing starts and will likely be the ones your employees go to with questions. Mostly importantly, they need to know how to report, monitor and legally respond to employees. A manager saying “They will shut this company down, before allowing a union in” is not an appropriate response and could cause you much bigger legal problems.
Next, you will want to talk with your employees. In our current environment, they need to be communicated with regularly, regardless of union activity. It seems, we have spent most of the past year with social media, news outlets and the government focused on dividing the country and our citizens. We’ve been divided by our race, gender, religion, political party, mask and/or COVID vaccine status, views on Second Amendment rights, sexual preference, or how you identify. The media has provided you with a multitude of options to cause division in your community. Wouldn’t it be nice if employees didn’t have to endure division at their place of employment?
Communicating with employees to remind them that they do not need an intermediary to speak with their manager or the company owner is a must! You want to stress that you have good open communication between managers and employees. Remind employees that you offer competitive wages and benefits. If any of this is not true, now is the time to fix it as it will be good for your company as a whole, even if the taskforce doesn’t target your industry. Union organizers will use any real (or imagined) crack in your company’s framework to convince employees of how much better they would be with a union on their side.
You may also consider modernizing your policies in regard to your position on unions, while stressing your company’s open door policy as well as a no solicitation policy.
Remember your people are the reason your company exists, and they need to be reminded and shown that they are valued and appreciated.
Being proactive now is one of the keys to your success when it comes to preventing a union from walking through your front door.
Let us know if you would like any help with implementing a Union Avoidance management training program. With AAG on your side, we will help to ensure your team is prepared to answer employee questions.Recent CDC recommendations on masking has caused confusion for employers everywhere. Guidance advises that those vaccinated could resume many of their normal routines without wearing a mask. However, the CDC doesn’t govern employers or fine them for non-compliance, OSHA does. As a result, employers are left wondering if they lift their facemask requirements or not.
The most recent information from U.S. Occupational Safety and Health Administration (OSHA) from January 29th stated that employers should not distinguish between vaccinated and unvaccinated employees. But doesn’t that contradict what the CDC released in their newest guidance? OSHA did acknowledge the CDC guidelines mid-May, but has not yet specifically advised employers on what to do. Companies are working around these guidelines (and lack thereof) to build policies that are most fitting to their level of exposure and potential liability.
In addition to updating mask guidance, you can look for other changes from OSHA. President Biden nominated Doug Parker to lead OSHA. Parker currently heads California’s OSHA division (Cal/OSHA). While his tenure at Cal/OSHA has been brief, his time there strongly suggests the potential for new federal standards and increased enforcement. Cal/OSHA standards are complex and more stringent than Federal OSHA and provide standards that have no federal counterpart. They laid the groundwork for many standards that have yet to be enacted at the federal level. The aerosol transmissible diseases (ATD) standard may be a preview of a federal workplace infectious disease standard, especially in the wake of COVID. That standard has already sparked a National Emphasis Program and an imminent federal emergency temporary standard (which Parker said would stand up to legal challenges during his confirmation hearing).
How much of a California flare will he bring to the federal agency and what should you expect as an employer?
Common consensus is that employers can expect increased enforcement under the Biden administration… more inspections, more citations, less negotiating and more litigating. The new administration has made it clear they intend to double the number of investigators. It is not a matter of if, but when, employers will see an uptick in OSHA inspectors knocking on doors.
When OSHA does arrive, it is important for you to have your compliance playbooks at the ready. You can prepare now, regardless of the current regulatory and enforcement landscape, to better protect your workforce.
As The Employer Advocate, AAG is happy to work with you to discuss your facemask options, areas to consider before you change your existing policy as well as when an outbreak or complication from a vaccine may be OSHA recordable.This is the second in our four-part series designed to let you know what changes have taken place that may affect your business. AAG is a benefit brokerage that specializes in working alongside an employer’s Human Resource/Management Team to assist with keeping companies in compliance with the ever-changing state and federal regulations.
The Family First Coronavirus Response Act (FFCRA) was amended earlier this year under the American Rescue Plan Act (“ARPA”). The amended act encompasses the same covered categories as the Federal law required last year with some expansions, options, and more room for abuse.
If you are a private employer with less than 500 employees, you have the option to voluntarily extend FFCRA paid leave from April 1, 2021 through September 30, 2021 and receive a tax credit. However, you must proceed with caution because the rules have changed and if not followed you may not be eligible for the tax credit.
In addition to the previous six reasons for emergency paid sick leave (EPSL) under the FFCRA, if an employer chooses to offer, you must allow for the following three reasons:
The change also includes 10 new days of available leave effective April 1, 2021. If an employee took 80 hours of EPSL leave prior to April 1st, they will be eligible for a new bank of paid leave after April 1, 2021.
The emergency family medical leave (EFML) under the FFCRA also has some key changes to be aware of:
Employers will not have the option of whether to apply the new reasons for leave or the fresh 10-day bank. Should you decide to offer EPSL to employees, it must be offered completely and available to all employees. Strict compliance is required in order to be eligible for the tax credit.
As the world continues to open and more employees return to work, changes to these paid leave revisions will no doubt continue. With AAG on your side, you can focus on your employees while we stay on top of required changes and keep you informed! If you have any questions or would like additional information please reach out, we are here to help!