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
**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
All reporting will be for the 2021 calendar year, even for non-calendar year plans.
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.
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).
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.
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 ETS does not apply to 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:
Covered employers have two options:
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:
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.
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
The maintenance of records is subject to applicable legal requirements for confidentiality of medical information.
Acceptable Proof of Vaccination
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:
The employee who attests to their vaccination status should, to the best of their recollection, include the following information in their attestation:
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.
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:
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.
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:
Masks that are not acceptable are:
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.
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.
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.
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:
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:
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.
5510 Six Forks Road
Raleigh, NC 27609