Employment

The Consolidated Appropriations Act, 2021 (the “Act”) adopted a series of transparency requirements that apply to employer-sponsored group health plans. These transparency rules impose a series of new and complex obligations on plan fiduciaries that mirror the rules that have governed retirement plan fiduciaries for the last decade. While both pension and welfare plans are subject to ERISA’s fiduciary standards, fiduciary committees, which are common in the case of retirement plans, are far less common where welfare plans are concerned. The new law provides compelling reasons for this to change.

In the latest discussion in our ESG webinar series, O’Kelly E. McWilliams III was joined by an informative panel featuring Katherine Grawe, Joe Aguilar, and Mamadou-Abou Sarr. In this webinar, our panelists explored how a variety of issues informed the deployment of ESG policies and shared best practices for putting ESG into action.

Congress has passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, marking a milestone in the #MeToo movement. This legislation (which President Biden is expected to sign into law) will effectively end mandatory arbitration of sexual assault and harassment disputes. Employees will now have a choice to proceed with their claims via arbitration or in court.

The Supreme Court recently handed down its much-anticipated decision in Hughes v. Northwestern University. The question before the Court is whether the petitioners – current and former participants in two retirement plans maintained by the University – plausibly stated a claim for breach of fiduciary duty. This post reports on the decision and considers its significance to retirement committees and other fiduciaries who oversee and administer plans with participant-directed investments.

Now that OSHA has withdrawn its vaccine or test rule, many employers are considering the use of mandatory vaccination policies in their workplaces. Employers have met this development with varied responses – some employers have rescinded vaccination requirements that were compliant with the more stringent OSHA Emergency Temporary Standard (“ETS”) requirements, some have retained mandatory vaccination policies compliant with the now-withdrawn ETS, and still others have created mandatory vaccination policies without reference to the ETS.

In this webinar, members from our Employee Benefits & Executive Compensation Practice discuss the latest in how employers must continue to manage their benefits and compensation programs to attract and retain talent. Hear our attorneys talk about 2022 trends in benefits and compensation and how companies should address the wide array of compliance issues affecting their programs.

Last year, New York State joined an ever growing number of states requiring certain employers to either offer employees a retirement savings plan or enroll in the applicable state program. More specifically, the New York State Secure Choice Savings Program (“NY Secure Choice”) provides a retirement savings program in the form of an automatic enrollment payroll deduction IRA (similar to a Roth IRA) that allows employees to opt-out from participation. New York State employers, whether for profit or not for profit, with at least ten employees in the state at all times during the previous calendar year, who have been in business at least two years, and have not offered a qualified retirement plan in the last two years, are subject to the participation requirements of the NY Secure Choice (“Applicable Employers”).

Section 108, Division BB of the Consolidated Appropriations Act, 2021 requires the Departments of Labor, Health & Human Services and the Treasury (the “Departments”) to issue regulations under Section 2706(a) of the Public Health Service Act (the “Provision”). The Provision bars group health plans and health insurance carriers from discriminating, with regard to participation under a plan or coverage, against any health provider that acts “within the scope of its license or certification under applicable state law.” Once issued, these rules will have important consequences for group health plans and other stakeholders.

Cal/OSHA revised its Emergency Temporary Standards (“ETS”) following its mid-December meeting and, more recently, made additional revisions to align with the California Department of Public Health’s recommendations.

The Supreme Court has stayed OSHA from enforcing its vaccine-or-test rule for large private employers. In its opinion, the Court found that Congress did not grant OSHA the authority to issue such a sweeping rule. Empowered to issue a workplace safety rule? Yes. But, according to the Supreme Court, OSHA did not impose such a rule; instead, it attempted to impose a broad public health measure, which the Court considered outside of the agency’s purview. In short, as the Court noted: “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”

Read Mintz’s comprehensive analysis of OSHA’s Emergency Temporary Standard pertaining to workplace COVID-19 vaccination and testing requirements for employers with 100 or more employees.

In two previous posts, we reported on the rules enacted in Section 202, Division BB of the Consolidated Appropriations Act, 2021 (the “Act”) requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans. Our first post focused on the underlying statutory provision; the second post covered the highlights of Department of Labor Field Assistance Bulletin 2021-03. This post addresses the narrow question of the reporting of general agent commissions under the new rules and in light of Field Assistance Bulletin 2021-03. The question is of practical interest, and it also sheds light on the Department of Labor’s initial approach to the interpretation of the statute.

On January 4, 2022, and faced with record numbers of COVID-19 cases in New York State, the New York State Department of Health (“NYSDOH”) issued Interim Updated Isolation & Quarantine Guidance. The Interim Guidance aligns NYSDOH’s isolation and quarantine recommendations for the general population with the guidance issued by the CDC on December 27, 2021, which the CDC has updated repeatedly since then, and about which we previously reported on here. This Interim Guidance also supersedes the essential worker portion of NYSDOH’s December 24, 2021 shortened isolation guidance, although the portion pertaining to healthcare workers remains in effect. We will continue to provide updates on NYSDOH’s recommendations, as well as those issued by other public health agencies, as events continue to unfold.

UPDATE: Following its original announcement, the CDC further updated its guidance to apply the 5 day quarantine rule to those who are asymptomatic but now also to those whose symptoms are resolving (without fever for 24 hours). The guidance now also includes a reminder that applicable local laws continue to apply and that the recommendations do not apply to healthcare workers (for whom the CDC has issued separate guidance). The CDC separately updated its definitions of “isolation” and “quarantine” and outlined additional recommendations regarding testing and masking procedures for individuals who test positive and those who are exposed to COVID-19. This post has been updated to reflect these changes.

In Field Assistance Bulletin 2021-03, the Department of Labor (the “Department”) announced a temporary enforcement policy relating to the rules enacted in Division BB of the Consolidated Appropriations Act, 2021 (the “Act”) requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans.

The New York State Department of Labor has issued proposed regulations interpreting and further defining the contours of the HERO Act’s joint labor-management workplace safety committees.  We summarize the proposed regulations below. 

Mintz Member Jennifer Rubin authored an article published by Corporate Counsel exploring how a new generation of tech savvy, social justice-focused, and environmentally aware employee stakeholders are creating recruitment, retention, and other employment challenges. In the article, she wrote that corporate counsel can play a key role in managing and mitigating this human capital risk, not only in response to the growing environmental, social, and governance disclosure and regulation trends, but as part of the need to design future-proof legal frameworks for the workplace.

Mayor-elect Eric Adams has announced that he plans to keep New York City’s vaccine mandate in place once he takes office.

In July 2019, the Auditing Standards Board of the American Institute of Certified Public Accountants (AICPA) issued a revised Statement on Auditing Standards No. 136 entitled, “Forming an Opinion and Reporting on Financial Statements of Employee Benefit Plans Subject to ERISA.” Originally slated to take effect for tax periods ending after December 15, 2020, the revised standard was delayed by one year. Audit firms may however choose to adopt the standard on the original effective date.

As expected, the U.S. Supreme Court will rule on whether OSHA may proceed with its Vaccine Order for large employers. The Court will hold a special hearing on January 7, 2022. Briefings are due by December 30, 2021. The Court will also consider whether a separate vaccine order related to healthcare workers is enforceable.