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Employment Law Update-Legal Mail No. 2021-20

By November 16, 2021No Comments

EMPLOYMENT LAW UPDATE

November 16, 2021

CONTENTS:

  • WHO KNEW VACCINE REQUIREMENTS COULD BE SO MUCH FUN
  • THE VACCINE-MANDATE PLOT THICKENS IN UTAH
  • IN NON-VACCINE NEWS…401(k) CONTRIBUTION LIMITS ARE BEING RAISED FOR 2022
  • IMMIGRATION NEWS-USCIS AGREES TO AUTOMATIC EMPLOYMENT AUTHORIZATION FOR L-1 SPOUSES (L-2) AND AUTOMATIC EXTENSION DOE EADS OF H-1B SPOUSES (H-4)

WHO KNEW VACCINE REQUIREMENTS COULD BE SO MUCH FUN: As you might recall, in one of our previous updates we cautioned that implementing workplace-vaccination requirements could be a bit tricky. It turns out, we were right—just ask the federal government.
On November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) issued an Interim Final Rule regulating healthcare facilities (“Vaccination IFR”). The Vaccination IFR—which applies to most (but not all) healthcare facilities subject to CMS’s health and safety requirements—obliges covered businesses to develop and implement policies to (1) ensure that all staff is fully vaccinated against COVID-19; (2) track employee vaccination status, including boosters; and (3) grant and track vaccination exemptions, including those based on applicable federal law (e.g., the ADA and Title VII of the Civil Rights Act), or recognized clinical contraindications to COVID-19 vaccines (click here to see information from the CDC regarding contraindications). The Vaccination IFR can be found here. You can read more about the Vaccination IFR, as well as OSHA’s Emergency Temporary Standard for healthcare settings (“Healthcare ETS”) (which imposes numerous COVID-related obligations on healthcare facilities) here. Let’s not forget that the federal government has also mandated vaccinations for federal contractors (you can read more on that here). And, as we reported last week, OSHA recently issued its Emergency Temporary Standard on COVID-19 Vaccination and Testing (“Vaccination ETS”) (you can read it here), which directs employers with 100 or more employees to require their employees to get vaccinated or undergo weekly testing.
All of these vaccine-related regulations have set up a bit of a showdown between the federal government and . . . lots of groups—including several states. In a recent ruling the Fifth Circuit Court of Appeals stayed OSHA’s Vaccination ETS, finding that the regulation is “overinclusive . . . and underinclusive,” and “grossly exceeds OSHA’s statutory authority.” That decision is itself subject to further judicial review, which likely will end up before the U.S. Supreme Court. You can read the Fifth Circuit’s full ruling here, and read more on the story here. Several states, including Utah, have also filed suit against the Biden administration over CMS’s Vaccination IFR. You can read more on that here. It’s almost certain that the ultimate fate of the vaccine mandates will be decided by the U.S. Supreme Court. OSHA has issued the following statement regarding the temporary federal-court stay: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the [Vaccination] ETS pending future developments in the litigation.” (emphasis added).
In addition to these judicial challenges to vaccine mandates, legislative responses are popping up as well. See the next item in this update for an example.

THE VACCINE-MANDATE PLOT THICKENS IN UTAH:  The Utah Legislature has passed a bill aimed at increasing the ability of employees to avoid employer-imposed COVID-vaccination requirements and at the same time increasing the burdens on employers related to such vaccination/testing requirements. Senate Bill 2004, which has passed both the house and the senate, requires employers to exempt employees from COVID-19 vaccination requirements where getting vaccinated would (1) negatively impact the employees’ well-being, or (2) conflict with the employees’ sincerely held religious beliefs. However, the bill goes a step further: it exempts employees from a workplace vaccination requirement where it would conflict with a sincerely held “personal belief.” Interestingly, an exemption request need only be supported by “a statement” submitted by the employee. SB 2004 also contains provisions related to testing: it requires employers to “pay for all COVID-19 testing an employee receives,” where the testing is “in relation to” or is “a condition of” the employee’s “presence at the workplace.” In addition, the bill prohibits employers from taking any adverse action against an employee “because of an act the employee makes in accordance” with the bill. Finally, SB 2004 prohibits employers from maintaining a record/copy of an employee’s proof of vaccination, except under certain circumstances—including if maintaining the record is “otherwise required by law.” Given SB 2004’s direct conflict with OSHA’s ETS for employers with 100 or more employees, much of SB 2004 likely will be preempted by federal law—if OSHA’s ETS survives judicial scrutiny (a big IF). You can see a copy of SB 2004 here. The bill is currently awaiting Governor Cox’s signature, and we expect he’ll sign it.

IN NON-VACCINE NEWS . . . 401(k) CONTRIBUTION LIMITS ARE BEING RAISED FOR 2022:  The IRS has announced the updated Internal Revenue Code (Code) Section 415 limits for 2022. Found in IRS Notice 2021-61, the cost-of-living-adjusted limits for 2022 include the following:

  • Effective January 1, 2022, the limitation on the annual benefit under a defined benefit plan under Code Section 415(b)(1)(A) is increased from $230,000 to $245,000;
  • The limitation for defined contribution plans under Code Section 415(c)(1)(A) is increased in 2022 from $58,000 to $61,000;
  • The limitation under Code Section 402(g)(1) on the exclusion for elective deferrals described in Code Section 402(g)(3) is increased from $19,500 to $20,500;
  • The annual compensation limit under Code Sections 401(a)(17), 404(l), 408(k)(3)(C), and 408(k)(6)(D)(ii) is increased from $290,000 to $305,000;
  • The dollar limitation under Code Section 416(i)(1)(A)(i) concerning the definition of “key employee” in a top-heavy plan is increased from $185,000 to $200,000;
  • The limitation used in the definition of “highly compensated employee” under Code Section 414(q)(1)(B) is increased from $130,000 to $135,000; and
  • The dollar limitation for catch-up contributions to an applicable employer plan for individuals aged 50 or over remains unchanged at $6,500.

Although these limits were announced as many employers were beginning their open enrollment periods for 2022 benefits, 401(k) contributions can be adjusted during the course of the year and, therefore, are less time-sensitive. HR professionals should convey to employees their plan contribution limits for next year. If you have questions about the new limits described above or the other limits discussed in IRS Notice 2021-61, please contact Geoffrey L. Gunnerson at ggunnerson@joneswaldo.com or (801) 407-6541.

IN IMMIGRATION NEWS . . . USCIS AGREES TO AUTOMATIC EMPLOYMENT AUTHORIZATION FOR L-1 SPOUSES (L-2) AND AUTOMATIC EXTENSION FOR EADS OF H-1B SPOUSES (H-4):  On November 10, 2021, the United States Citizenship and Immigration Services (USCIS) entered into a Settlement Agreement resolving a lawsuit challenging (1) its refusal to automatically approve employment authorization for the spouses of L-1A and L-1B intracompany transferee visa holders, and (2) its extreme delays in renewing employment authorization documents (EADs) for spouses of H-1B temporary workers. This is an important step toward recognizing the spousal rights of temporary employment visa holders to work in the U.S. Per the terms of the Settlement, L-2 spouses will have automatic employment authorization pursuant to their status, and will not be required to apply for EADs. H-4 spouses with expiring EADs will receive an automatic extension upon filing through a decision on the EAD renewal application, the end of their current H-4 status, or 180 days from the expiration date on their EAD, whichever occurs first. If you have questions about these immigration developments, please contact Lewis Francis at lfrancis@joneswaldo.com or call (801) 521-3200.

Mike O’Brien | mobrien@joneswaldo.com
Mark Tolman | mtolman@joneswaldo.com
Marci Rechtenbach | mrechtenbach@joneswaldo.com
Paul Smith | psmith@joneswaldo.com

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Legal-mail is a legal and legislative update service sent out twice a month to interested HR professionals as well as various Utah SHRM members and chapters. As a courtesy, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O’Brien, Mark D. Tolman, Marci B. Rechtenbach, or Paul R. Smith.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.