2021 ACA Reporting

As you know, employers defined as Applicable Large Employers (ALEs) are required to submit 1094/1095 C forms to the IRS.  ALEs are companies who average 50 or more full-time or full-time equivalent employees (FT/FTE).  This is determined each calendar year and is based on the average size of an employer’s workforce during the prior year.  If an employer has at least 50 full-time employees, including full-time equivalent employees, on average during the prior year, the employer is an ALE for the current calendar year. Employees sponsoring self-insured or level-funded health plans have these responsibilities regardless of size.

Forms to Employees

• The 1095-C is provided by ALEs with fully insured health plans to all employees who were employed for any month of the calendar year.
  • ALEs with fully insured health plans complete parts I and II of the form.
  • ALEs with self-insured health plans complete the entire form.**
• The 1095-B is provided by small employers (fewer than 50 full-time equivalent employees) sponsoring self-insured health plans to all employees who were employed for any month of the calendar year.

**Per the IRS, ALEs that offer self-insured health coverage to non-employees who enroll in the coverage may use forms 1094-B and1095-B, rather than form 1095-C, Part III, to report coverage for those individuals and other family members. For this purpose, a non-employee includes, for example, a non-employee director, an individual who was a retired employee during the entire year, or a non-employee COBRA beneficiary, including a former employee who terminated employment during a previous year. For information on reporting for non-employees enrolled in a self-insured health plan using forms 1094-B and 1095-B, see the instructions for those forms.

Forms to the IRS

• The 1094-C is submitted to the IRS by ALEs with fully insured health plans along with copies of all the 1095-Cs.
• The 1094-C is also submitted to the IRS by ALEs with self-insured health plans along with copies of all the 1095-Cs.
• The 1094-B is submitted to the IRS by small employers sponsoring self-insured health plans along with copies of all the 1095-Bs.

All reporting will be for the 2021 calendar year, even for non-calendar year plans.

​​Furnishing:

This is the 7th ACA reporting year and the first reporting year that the IRS has not issued a furnishing extension:

Furnishing Forms 1095-C to Employees

An ALE must furnish a Form 1095-C, or a 1095-B if self-funded, to each of its full-time employees by January 31, 2022.

​The penalty for failing to provide a correct statement is $280 for each statement for which the failure occurs, with the total penalty for a calendar year not to exceed $3,426,000.  There are special rules that apply that increase the per-statement and total penalty if the IRS believes there was intentional disregard of the requirements to furnish and file statements.

​​Filing:

When to File the 1094-B and 1095-B with the IRS

The return and transmittal form must be filed with the IRS on or before February 28, 2022 if filing on paper (March 31, 2022, if filing electronically).

When to File the 1094-C and 1095-C with the IRS

For calendar year 2021, Forms 1094-C and 1095-C are required to be filed by February 28, 2022, if filing on paper, or March 31, 2022, if filing electronically.

If you need a 30-day filing extension, you can complete IRS form 8809, Application for Extension of Time to File Information Returns.  The form may be submitted on paper, or through the FIRE System.  You must file 8809 on or before the due date of the returns to get the 30-day extension.

The penalty for failing to file a correct return is $280 for each return for which the failure occurs, with the total penalty for a calendar year not to exceed $3,426,000.  There are special rules that apply that increase the per-return and total penalty if the IRS believes there was intentional disregard of the requirements to furnish and file statements.

OSHA Releases the Emergency Temporary Standard

The Occupational Safety and Health Administration (OSHA) has issued the Emergency Temporary Standard (ETS), which applies to large employers with 100 or more employees at any time.  It has been published in the Federal Register, today, November 5th.

The ETS is effective immediately in the states where federal OSHA has jurisdiction, like Texas.  States where federal OSHA does not have jurisdiction, like Virginia, North Carolina, Maryland, and South Carolina, will have 30 days to adopt the ETS or implement measures considered at least as effective. 

The effective date for this ETS is the date of publication in the Federal Register.  The compliance date for all provisions in the ETS is 30 days after the effective date except for COVID-19 testing for employees who are not fully vaccinated, which requires compliance within 60 days of the effective date.  This allows additional time for developing policies and procedures regarding COVID-19 testing and associated recordkeeping. Additionally:

• The 60-day compliance period provides unvaccinated employees sufficient time to receive one dose of a single-dose primary vaccination (Johnson & Johnson’s Janssen vaccine) or both doses of a two-dose primary vaccination series (Pfizer and Moderna).
  • Employees who receive the Janssen vaccine could begin their primary vaccination at any time up to and including the 60th day from the date of publication in the Federal Register to be exempt from testing requirements.
  • Employees who receive the Pfizer vaccine could begin their primary vaccination at any time up to and including the 39th day from the date of publication in the Federal Register to be exempt from testing requirements.  The Pfizer vaccine takes 21 days to complete.
  • Employees who receive the Moderna vaccine could begin their primary vaccination at any time up to and including the 32nd day from the date of publication in the Federal Register to be exempt from testing requirements.  The Moderna vaccine takes 28 days to complete.

• The 100-employee threshold is based on the size of an employer, in terms of the number of employees, rather than the type or number of workplaces.
  • In determining the number of employees, employers must include all employees across all their U.S. locations, regardless of employees’ vaccination status, where they perform their work, or where they report for work on a particular day.
  • Part-time employees do count toward the company total. (Independent contractors do not.)
  • For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold.
  • In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisee would be separate entities for coverage purposes.
  • If two or more related entities handle OSHA safety matters as one company, all entities make up the integrated single employer.  All employees of these related entities must be counted as one integrated single employer.
  • If employees of a staffing agency are placed at a host employer location, only the staffing agency would count those jointly employed workers.
  • The ETS will also cover employers that fluctuate above and below the 100-employee threshold during the term of the ETS.
    • If the employer has 100 or more employees on the effective date of the ETS, the ETS applies for the duration of the standard.
    • If an employer hires more workers and then hits the 100-employee threshold for coverage, that employer must come into compliance with the ETS.  Once the employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time it is in effect, regardless of fluctuations in the size of the employer’s workforce.

The ETS does not apply to workplace:

• Covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors [NOTE: Employers covered under the Contractor Guidance may/will also have work to perform in workplaces where they are not covered under that Guidance. In those instances, the ETS will apply.]
• Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502, the Healthcare Emergency Temporary Standard [NOTE: The Healthcare Emergency Temporary Standard may not remain in effect for the entire period the ETS remains in effect. This means that those healthcare employees in companies with 100 or more employees may ultimately be covered by the ETS.]
• Employees who do not report to a workplace where other individuals are present (such as a research station where only the employee is present)
• Employees who work exclusively outdoors
  • If an employee works indoors on some days and outdoors on other days, the employee is not exempt from the requirements of the ETS.
  • If an employee works primarily outdoors but routinely occupies vehicles with other employees as part of work duties, that employee is not exempt from the requirements of the ETS.
  • If an employee works outdoors for the duration of every workday except for de minimis use of indoor spaces such as multi-stall bathrooms or an administrative office, that employee would be exempt from the requirements of the ETS.
  • To qualify for this exemption, the employee’s work must truly occur outdoors, which would not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements.
• Employees who work from home 100% of the time. 
  • This exemption only applies to employees while they are working from home. An employee who switches back and forth from teleworking to working in a setting where other people are present, like an office, is covered by the ETS and must be vaccinated if required by the employer.  If the employer does not require vaccination, the teleworking employee must either be vaccinated or complete testing and wear a face covering. The teleworking employee must:
    • Be tested for COVID-19 within seven days prior to returning to the workplace and
    • Provide documentation of that test result upon returning to the workplace.

The standard is intended to preempt states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to COVID-19 issues, except under the authority of a federally approved State Plan. OSHA intends to preempt any state or local requirements that ban or limit an employer from requiring vaccinations, face coverings, or testing.

Under the ETS, employees are considered fully vaccinated:

• 2 weeks after their second dose in a 2-dose series (the second dose must not be received earlier than 17 days after the first dose), such as Pfizer or Moderna vaccines, or
• 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.

Covered employers have two options:

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy
  • Employees must be provided with up to four hours of paid time, including travel time, at the employee’s regular rate of pay, to receive each vaccination dose, and reasonable time and paid sick leave to recover from vaccination side effects.
    • Employers are not required to grant paid time to an employee for the time spent receiving the vaccine during non-work hours.
    • For employees receiving the Pfizer or Moderna vaccine, the labor burden outlined above occurs twice, since the vaccination requires two shots.
    • If employees need time to recover from vaccination side effects, the employer must provide reasonable time and paid sick leave to recover but may require employees to use paid sick leave benefits otherwise provided by the employer to offset these costs.
  • The policy must require:
    • vaccination of all employees, including new employees as soon as practicable other than
      • employees who are exempt because the vaccine is medically contraindicated, or
      • for whom medical necessity requires a delay in vaccination, or
      • those legally entitled to a reasonable accommodation under federal civil rights laws because
        • they have a disability (see attached document), or
        • sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement (see attached document).

• Develop, implement, and enforce a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing (at least once every seven days) (see attached document) AND wear a face covering at work in lieu of vaccination. Employees who are partially vaccinated are also required to be tested weekly until they are fully vaccinated.
• [NOTE:  Per the Virginia Permanent Standard, all employees working in Virginia, whether vaccinated or unvaccinated, must wear masks as long they are working in areas of high community transmission.]
  • Employers are not required to pay for any costs associated with regular COVID-19 testing for employees who choose not to be vaccinated.
    • COVID-19 testing must occur at least once every seven days.
    • Documentation of the most recent COVID-19 test result must be provided to the employer no later than the seventh day following the date the employee last provided a test result.
    • Employees who are not fully vaccinated and do not report to a workplace where other individuals are present during a period of seven days or more (for example, vacation or remote work) must 
      • Be tested for COVID-19 within seven days prior to returning to the workplace and
      • Provide documentation of that test result upon returning to the workplace.  The employer must keep the employee removed from the workplace until the employee provides a test result.
    • Employees who are not fully vaccinated must be tested with a COVID-19 test that has been cleared, approved, or authorized by the Food and Drug Administration(FDA):
      • must be administered in accordance with the authorized instructions
      • cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor
      • Tests that satisfy this requirement include
        • tests that are processed by a laboratory, including home, or on-site collected specimens,
        • proctored over-the-counter tests,
        • point of care tests and
        • tests where specimen collection is either done or observed by an employer.
        • NOTE:  Per the Virginia Permanent Standard, if testing is used to determine whether an employee may return to work after a positive COVID-19 diagnosis, the test must be a PCR test. The ETS requirements refer to testing used every seven days in lieu of vaccination.
  • Employers who decide to implement this “vaccination or testing” policy will be assuming the administrative burden necessary to ensure that unvaccinated workers are regularly tested for COVID-19 and wear face coverings when they work near others.
  • Employers who decide to implement this “vaccination or testing” policy may not prevent employees from getting vaccinated.
  • The Department of Health and Human Services (HHS) provides a publicly-available list of community-based testing locations in each state that offer free COVID-19 testing for insured and uninsured residents. (link below)

Side Effects from COVID-19 Vaccination Doses

As you know, the Emergency Temporary Standard (ETS), requires covered employers to provide reasonable time and paid sick leave to employees to recover from vaccination side effects.

Some individuals experience no side effects from COVID-19 vaccination doses, but for those who do, the Centers for Disease Control and Prevention (CDC) has identified a range of side effects that may be experienced.

Side effects may affect an individual’s ability to engage in daily activities, are typically mild to moderate in severity and usually go away in a few days.  Common side effects include:

• Pain, redness, and swelling at the site of injection and
• Systemic side effects throughout the body, including
  • Tiredness
  • Headache
  • Muscle pain
  • Chills
  • Fever and
  • Nausea.

Side effects may be sufficiently severe to require the employee to take sick leave from work but will rarely extend beyond a few days.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose.

If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects.

An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects. In other words, the employer cannot require an employee to go into the negative for paid sick leave if the employee does not have accrued paid sick leave when they need to recover from side effects.

Employers may set a cap on the amount of paid sick leave available to employees to recover, but the cap must be reasonable.  The CDC notes that if side effects are experienced, they should go away in a few days.  OSHA presumes that an employer who makes available up to two days of paid leave per primary vaccination dose (up to 2 days for the Janssen vaccine and up to 4 days total for the Pfizer and Moderna vaccine – up to 2 days per dose), the employer would be in compliance with this requirement.

Determination of Employee Vaccination Status

To comply with the Emergency Temporary Standard (ETS), large employers with 100 or more employees must be aware of each employee’s vaccination status.  This ensures that the vaccination, testing, and face covering requirements of the standard are met.  Employers are required

• to determine the vaccination status of each employee,
• to maintain records of each employee’s vaccination status,
• to preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and
• maintain a roster of each employee’s vaccination status.

The maintenance of records is subject to applicable legal requirements for confidentiality of medical information.

Acceptable Proof of Vaccination

• The record of immunization from a health care provider or pharmacy
• A copy of the U.S. CDC COVID-19 Vaccination Record Card
• A copy of medical records documenting the vaccination
• A copy of immunization records from a public health, state, or tribal immunization information system
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

To be acceptable as proof of vaccination, any documentation should generally include the employee’s name, type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).  In some cases, state immunization records may not include one or more of these data fields, such as clinic site. In those circumstances, an employer can still rely upon the State immunization record as acceptable proof of vaccination.

Copies, including digital copies, of the listed forms of proof are acceptable as long as they clearly and legibly display the necessary information.

Some states are providing quick response (QR) codes that when scanned will provide the required information.  The employer must retain a copy of the vaccination information retrieved when the QR code is scanned, not just the QR code itself.

Each employee who has been partially or fully vaccinated should be able to provide one of the forms of acceptable proof listed above. An employee who does not have their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system. In instances where an employee is unable to produce acceptable proof of vaccination a signed and dated statement by the employee will be acceptable.  The statement must:

• attest to their vaccination status (fully vaccinated or partially vaccinated)
• attest they have lost or are otherwise unable to produce proof required by the standard and
• include the following language –
  • “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

​The employee who attests to their vaccination status should, to the best of their recollection, include the following information in their attestation:

• they type of vaccine administered
• date(s) of administration
• the name of the health care professional or clinic site administering the vaccine

Before an employee statement will be acceptable for proof of vaccination, the employee must have attempted to secure alternate forms of documentation via other means, such as the vaccine administrator or their state health department and been unsuccessful in doing so.

Maintaining Records

Record maintenance requirements of the ETS cannot be fulfilled by an employee merely showing the employer their vaccination status.  To satisfy this requirement, the employer must retain a copy of the documentation.  If the documentation contains a QR code, the code must be scanned, and that record should be maintained.

Records of vaccination status can be maintained physically or electronically, but the employer must ensure they have access to the records at all times.

Maintaining a Roster

Covered employers must maintain a roster of each employee’s vaccination status, subject to applicable confidentiality requirements.  The roster must:

• list all employees
• clearly indicate for each employee who is
  • unvaccinated,
  • partially vaccinated,
  • fully vaccinated,
  • not fully vaccinated because of a medical or religious accommodation or
  • not fully vaccinated because they have not provided acceptable proof of their vaccination status.

Any employee who has not provided acceptable proof of their vaccination status must be treated as not fully vaccinated.

​The roster must be provided to OSHA on request.

The records and roster are considered to be employee medical records and must be maintained as such.  They must not be disclosed except as required or authorized by the ETS or other federal law, including the Americans with Disabilities Act (ADA).

These records and roster must be maintained while the ETS remains in effect.

OSHA recognizes the possibility that an employer may have already collected information about the vaccination status of employees, including proof of vaccination, prior to the effective date of this ETS. When an employer has ascertained employee vaccination status prior to the effective date of the ETS through another form of attestation or proof, and retained records of that ascertainment, the employer need not do so again. This applies only for each employee whose fully vaccinated status has been documented prior to the effective date of the standard.

• For example, an employer may have asked each employee to self-report their vaccination status without requiring the employee to provide any form of proof. If that self-reporting was through oral conversation only, and not documented in some way, the employer is not considered to have retained records of that ascertainment for the purposes of this ETS.
• However, if, for example, the employer had the employees provide their vaccine information on a dated form, or through individual emails retained by the employer, or on an employer portal specifically created for employees to provide documentation status, or the employer created and retained some other means of documentation, the employer is considered to have retained records of ascertainment for the purposes of this ETS.

Face Coverings

As you know, the ETS requires that unvaccinated employees wear face coverings.  [If you are an employer in Virginia, per the Virginia Permanent Standard, all employees working in Virginia, whether vaccinated or unvaccinated, must wear masks as long they are working in areas of high community transmission.]

The ETS (and the Virginia Permanent Standard) define face coverings as an item made of two more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin.

Acceptable masks are:

• Non-medical disposable masks for single use (permissible even though they are not washable)
• Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two layers
• Masks made with tightly woven fabric – fabrics that do not let light pass through when held up to a light source
• Masks with two or three layers
• Masks with inner filter pockets
• Masks that have a nose wire to prevent air from leaking out of the top of the mask
• Masks must be secured to the head with ties, ear loops, or elastic bands that go behind the head.

Masks that are not acceptable are:

• Masks that do not fit properly (large gaps, too loose or too tight)
• Masks made from materials that are hard to breathe through, such as plastic, vinyl or leather
• Masks made from loosely woven fabric or those that are knitted – fabrics that let light pass through
• Masks with one layer
• Masks with exhalation valves or vents – the hole in the material may allow your respiratory droplets to escape and reach others.
• Wearing a scarf or ski mask as a mask

Do not use a face shield or goggles as a substitute for masks.  Goggles do not cover the nose and mouth.  Face shields have large gaps below and alongside the face where your respiratory droplets may escape and reach others around you.

Wearing a mask does not raise the carbon dioxide level in the air you breathe.  Carbon dioxide completely escapes into the air through and around the sides of the mask when you breathe or talk.  Carbon dioxide is small enough to easily pass through any cloth mask material.  The virus that causes COVID-19 is much larger than carbon dioxide so it cannot pass as easily through a properly designed and properly worn mask. 

Click here to view PDF.

Reasonable Accommodation and Religious Exemptions

The Emergency Temporary Standard (ETS) provides an exemption from the vaccine for employees for whom the vaccine is medically contraindicated, or for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under the Americans with Disabilities Act because they have a disability.

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified applicants and employees with a disability unless the employer can demonstrate that doing so creates an undue hardship to the employer OR poses a direct threat to the safety of the employee or others in the workplace.

• If an employee requests an exemption under the ADA, the employer must first engage in an interactive process. The interactive process is used to help determine effective accommodations.  This simply means that employers (after receiving information from the employee’s healthcare provider) and employees work together to come up with accommodations.  Information from the healthcare provider should include:
  • the nature of any impairment(s),
  • the duration of the need for accommodation, and
  • the extent to which the impairment(s) conflict with the vaccination requirement.

Title VII of the Civil Rights Act requires employers to accommodate an employee’s sincerely held religious belief unless doing so creates an undue hardship to the employer.  Under federal law, sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  This could include an employee’s religious-based objection to vaccinations.

• If an employee requests a religious exemption, the employer must engage in an interactive process to determine the nature of the religious belief and the limitations on receiving the mandated COVID vaccine.
• The employee should be asked to provide an explanation of the sincerely held religious belief. NOTE:
  • Courts have routinely found that it is impermissible for an employer to question the validity of that religious belief.
  • It does not matter that an employee’s religious denomination or leaders do not follow or endorse the employee’s particular belief.
  • An employee does not have to prove the religious practice or belief is an express requirement of the employee’s religion.
• Per the Equal Employment Opportunity Commission (EEOC), “if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim.”  Here are some factors the EEOC states could undermine an employee’s assertion that he/she sincerely holds the religious belief at issue:
• • whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Per Fisher Phillips, employers should be cautious in resting their determination that a religious belief is not sincerely held on evidence demonstrating an employee previously acted inconsistently with the sincerely held religious belief now professed. Courts have held that such evidence can be overcome because sincerely held religious beliefs can, and often do, change over time. Such cases demonstrate that even if an employee is not diligent in their observance or did not openly profess their beliefs in the past, their religious beliefs are protected by Title VII nonetheless.

Once you have gathered all the information, the final step is to determine how to respond to the request.  Per Fisher Phillips:

1. You may conclude there are no accommodations that are reasonable, or that any accommodations identified would cause an undue hardship.
2. Even if one or more reasonable accommodations are identified, you are not obligated to provide the specific accommodation requested by the employee if you identify and offer them an effective alternative.
3. You don’t need to feel locked into whatever choice you end up making. You could grant an accommodation request and soon realize it’s not workable for some objective reason (that you also document). The law permits you to revisit accommodation requests and adjust as necessary.

Under the ADA, undue hardship is defined as “significant difficulty or expense.” There is a lower standard to meet under Title VII – an undue hardship is one that would require more than a de minimis, or trivial, cost or burden.

If you determine that an employee is exempt from the vaccine requirement under the ADA or Title VII and you provide a reasonable accommodation to this employee, you must treat this employee as an unvaccinated employee:

• The employee must undergo regular COVID-19 testing (at least once every seven days) AND wear a face covering at work in lieu of vaccination.
• NOTE:  Per the Virginia Permanent Standard, all employees working in Virginia, whether vaccinated or unvaccinated, must wear masks as long they are working in areas of high community transmission.
• COVID-19 testing must occur at least once every seven days.
• Documentation of the most recent COVID-19 test result must be provided to the employer no later than the seventh day following the date the employee last provided a test result.
• Employees who are not fully vaccinated must be tested with a COVID-19 test that has been cleared, approved, or authorized by the Food and Drug Administration(FDA):
  • • • must be administered in accordance with the authorized instructions
      • cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor
      • Tests that satisfy this requirement include
        • tests that are processed by a laboratory, including home, or on-site collected specimens,
        • proctored over-the-counter tests,
        • point of care tests and
        • tests where specimen collection is either done or observed by an employer.

Emergency Stay of the Emergency Temporary Standard!

On Saturday, November 6th, a federal appeals court in New Orleans temporarily halted the Emergency Temporary Standard (ETS) which requires vaccines and/or weekly testing for workers at businesses with 100 or more employees.  The appeals court stated the new policies included in the ETS raise “grave statutory and constitutional issues.”

The Biden administration says it is confident that the requirement, which includes penalties of nearly $14,000 per violation, will standup against legal challenges.  This is in part because OSHA’s safety rules pre-empt state laws.

The Biden administration must file its initial legal papers by late this afternoon.